Appalachian Power Co., John E. Amos Plant

National Labor Relations Board - Board Decisions

Nov 17, 1986

282 N.L.R.B. 156 (N.L.R.B. 1986)

156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appalachian Power Company , John E . Amos Plant
and United Steelworkers of America, Local
Union No . 8621. Cases 9-CA-11951, 9-CA-
12192, and 9-CA-12235-2
17 November 1986
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 22 July 1986 Administrative Law Judge Wal-
lace, H. Nations issued the attached supplemental
decision. The Respondent and the General Counsel
filed exceptions and supporting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Appalachian
Power Company, John E. Amos Plant, Charleston,
West Virginia, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
James E. Horner, Esq., for the General Counsel.
Guy Farmer, Esq., of Washington, D.C., and Frederic L.
Sagan, of Columbus, Ohio, for the Respondent.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge.
On 17 January 1986 the Regional Director for Region 9
issued a notice of supplemental hearing in the above-cap-
tioned proceeding. This notice relates that the Board, on
27 June 1980 issued its Decision and Order in 250 NLRB
228, directing Respondent Appalachian Power Company,
John E. Amos Plant, it officers, agents, successors, and
assigns to, inter alia, recognize and, on request, bargain
collectively with United Steelworkers of America, Local
Union No. 8621 as the exclusive representative, since 20
May 1977, of certain of Respondent's employees. The
United States Court of Appeals for the Fourth Circuit on
8 April 1980 entered judgment enforcing the Board's
Order.' Thereafter, a controversy has arisen over the ob-
ligation of Respondent to comply with that portion of
the Board's Order, as enforced, requiring Respondent to
reinstate its established "Green Book" grievance-arbitra-
tion procedure.
' Cert denied 454 U S. 866 (1981)
Respondent has filed an answer to the notice submit-
ting that it is in compliance with the Board's Order and
is willing to arbitrate any grievance under the Green
Book if the grievance is arbitrable under the provisions
of the Green Book.
A hearing was held before me regarding this dispute
on 25 March- 1986 at Charleston, West Virginia. Subse-
quently, briefs were received from the General Counsel
and the Respondent. -
I. DISCUSSION AND CONCLUSIONS
The issue at this stage of the proceeding is whether
Respondent should be required to arbitrate those griev-
ances set out in detail in Respondent's Exhibit 15, and/or
listed under subject matter heading in the General Coun-
sel's Exhibit 2.
A. Brief History of the Proceeding
As stated in the Board's decision of 1980, Respondent's
production and maintenance employees of its John E.
Amos Electric Generating Plant had been unrepresented
until 20 May 1977, when the United Steelworkers of
America, Local Union No. 8621 (Union) became the cer-
tified collective-bargaining representative of an appropri-
ate unit of employees. Prior to 20 May 1977, the employ-
ees were governed by a set of rules and regulations as
stated in the Green Book which, inter alia , provided for
an arbitration procedure. The question to be answered in
this proceeding is whether Respondent should be re-
quired to arbitrate grievances which arose during the
period from 20 May 1977 when the Union was certified,
until 10 May 1979, when the Union and Respondent
agreed upon an initial collective-bargaining agreement.
The Board's Order specifically required Respondent to
reinstitute, "its established grievance-arbitration proce-
dure for the unit employees."
As noted above, Respondent appealed the Board's
Order, including the requirement of reinstituting its
Green Book grievance-arbitration procedure. The Fourth
Circuit rejected Respondent's contention and enforced
the Board's Order. Respondent continued its appeal until
5 October 1981 when the Supreme Court denied its peti-
tion for a writ of certiorari, without opinion, in 454 U.S.
866.
After the petition for a writ of certiorari was denied,
Regional Office personnel met with the parties to work
out arrangements for processing outstanding grievances.
The compliance officer for Region 9 and the Union nar-
rowed their grievance to 12 main issues, some involving
one grievance and others involving a number of griev-
ances. These are set forth in the record as General Coun-
sel's Exhibit 2. Although Board personnel and Respond-
ent's personnel met on a number of occasions leading up
to this hearing, neither side's position was satisfactory to
the other. The Regional Office's position is that there are
approximately 70 outstanding grievances which should
be arbitrated under the Green Book procedure, and Re-
spondent's position up to the hearing was that there was,
at most, only 5 grievances that were proper for arbitra-
tion under that procedure. Respondent states that it
stands willing to comply with the Board's Order but as-
282 NLRB No. 26
APPALACHIAN POWER CO 157
serts that under the Board's Order the vast majority of
the involved grievances are not arbitrable because they
are either (1) not timely processed through the Green
Book procedure, or (2) not arbitrable under the express
criteria of the Green' Book. These two defenses to the
Region's demand for arbitration of the involved out-
standing grievances will be discussed below.
B. Respondent's Timeliness Defense
As noted above, certification of the Union was on 20
May 1977 and the execution of the first union contract
was on 10 May 1979. There was no contract in effect be-
tween the parties during this "period of time. However,
during that interim period, bargaining unit members and
the Union filed a number of grievances under the Green
Book.
Shortly after certification, it was agreed between the
Union and the Company that grievances would be proc-
essed through the third step of the grievance procedure
of the Green Book, the plant manager step. The Union
was to process any grievances through these steps with
union representation of the 'grievant.
Later, on 1 June 19782 the parties agreed in writing to
move the third-step grievances to the fourth and final
step of the grievance procedure.
Shortly after agreement was reached, the Company re-
quested a meeting to begin processing of grievances at
the fourth step. E. C. Bradley, then personnel manager
of the John E. Amos Plant of Respondent, requested that
the Union make a written request as to which grievances
were to be processed at step four. On 20 July, in re-
sponse to this request, Frank Grover Jr., president of the
Local Union, wrote Bradley acknowledging his request
and requesting in the letter that "all unsettled grievances
that were filed since Union certification (in the bargain-
ing unit) and are now through step three be referred to
step four." The letter further requested that the Local
Union get all copies of outstanding grievances.
This letter was responded to by Bradley on 25 July in
a letter, setting out all outstanding grievances and supply-
ing copies of the grievances to Grover. Also, on 26 July,
H. E. Rhodes Jr., then labor relations supervisor for Re-
spondent, wrote Grover stating that he would be avail-
able to meet with Grover at the Amos Plant on Tuesday,
8 August, to hear the grievances at the fourth step. A
meeting was held on 8 August and eight grievances were
discussed. On 24 and 25 August Rhodes wrote to Grover
and gave the answer to the fourth-step grievances which
were heard on 8 August.
Following the 8 August meeting, the Union did not
take any of the remaining grievances to step four. The
Company attempted to obtain the' Union's cooperation in
completing processing of the remaining grievances
through step four. Documentation introduced into the
record reflects that on 1 December the Company wrote
a letter to Grover stating,, in effect, that since 8 August
the Company had heard nothing from the Union in
regard to the processing of grievances at the fourth step
and suggested a meeting be held on 7 December to "con-
2 All dates are in 1978 unless otherwise stated.
tinue hearing the fourth step- grievances which you had
requested be processed to that step."
Grover did not comply in writing, but advised the
Company through Bradley that it was his understanding
that he "could not handle fourth step grievances" and he
would have the International Union contact the Compa-
ny about them. Evidently, nothing transpired between 6
December and 4 January 1979 because on the later date
O. P. Cornelison on behalf of Respondent wrote to Wil-
born Boothe, the International representative responsible
for the involved bargaining unit, briefly describing what
had transpired since 8 August and requested the Union
to respond and proceed with the grievances.
On 16 February 1979 Cornelison wrote to Judith
Boyd, staff representative of the Union, noting the 4 Jan-
uary 1979 letter to Boothe, and further noting that the
Company had been notified by Boothe that Boyd was
now the representative of the International responsible
for the affairs of the involved local. The letter goes on to
state that the Company was willing to conduct fourth-
step grievances if the Union wished to process griev-
ances at that level.
The Company received no response from Boyd nor
anyone else connected with the Union. Therefore, as far
as the record shows, the only involved grievances proc-
essed to the fourth step were the eight grievances proc-
essed in August.
The involved substantive provision in the Green Book
requires that to be arbitrable the grievance must meet the
time limits set out in the Green Book and be processed
through to the fourth step. It is Respondent's position
that with respect to all but the eight grievances proc-
essed to the fourth step on 8 August none of the remain-
ing grievances meet the substantive requirements of the
Green Book and thus are not subject to arbitration. The
Board's Order requiring reinstatement of the Green Book
procedure did not go further and require processing of
interim grievances. As the Board's Order did not require
Respondent to go beyond the Green Book procedures, I
find that ordering Respondent to ignore the substantive
time-limitation provisions of the Green Book would re-
quire it to do more than the Board's original Order and,
therefore, will not so order.3 The General Counsel urges
that because of confusion in the minds of the employees
filing grievances during the involved period, the failure
to timely process their grievances to the fourth step
should be overlooked. I disagree. Regardless of the state
of mind of 'individual bargaining unit members, the
Union had the responsibility of processing grievances
during the period of time in question . The Union agreed
with Respondent to take grievances through the fourth
step and, as shown, did process a few to that level.
Thereafter, though repeatedly requested by the Compa-
ny to do so, no more grievances were processed to the
fourth step and no reason was given for the failure to do
so. The fact that an ongoing controversy existed during
this timeframe as to the ultimate arbitrability of the in-
volved grievances does not excuse the Union 's inaction
3 Of the grievances heard in August , only five are among those sought
to be arbitrated at this date , to wit, Nos. 77-20, 77-24, 79-69, 79-71, and
79-73
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in processing the grievances to the last level pursuant to
its agreement with Respondent.
C. Respondent's "Standard for Arbitrability" Defense
As found above, all but five of the grievances sought
in this proceeding to be arbitrated will not be found to
be arbitrable because they were not processed through
the grievance procedures as set ' forth clearly in the
Green Book.
Two of the remaining grievances Respondent admits
are arbitrable and is willing to arbitrate, Nos. 77-20 and
77-24. This leaves three grievances, No. 79-69, 79-71,
and 79-73 which Respondent contends are not arbitrable
because they involve overtime distribution and there is
no reference to "overtime distribution" in the Green
Book. Respondent contends that to be arbitrable under
the Green Book, a grievance must involve a suspension
or discharge or the application or interpretation of a pro-
vision of the Green Book.
On brief, Respondent contends that customary prac-
tices are not arbitrable under the Green Book and that
the Union attempted to justify arbitration on the over-
time distribution grievances on the grounds that it was a
custom of the plant's operation which is carried forth in
specific language in the first agreement with the Union.
Respondent asserts that there is no specific provision in
the Green Book relating to overtime distribution; there-
fore, the fact that there was a certain practice and
custom respective to overtime distribution is irrelevant.
Respondent's Exhibit 14 is the record of the only inci-
dence of a grievance taken to arbitration at the involved
plant prior to the 1977 certification. Reading of the
grievance file shows that although certain provisions of
the Green Book are cited, the situation involved was ac-
tually not covered by any particular provision of the
Green Book and the arbitrator decided the case based on
a showing of the Company's past practice.
It is arguable that grievances 79-69, 79-71, and 79-73
relating to overtime distribution can involve an interpre-
tation of the Company's Green Book provisions relating
to hours of work, shift premium, overtime payments, and
call-outs as well as the introduction to the Green Book
and perhaps other provisions. It is not within my author-
ity to determine the merits of these various grievances.
However, I do believe that they fall within the wording
of the provision relating to arbitrability in that they in-
volve the application and interpretation of sections of the
employee manual . As these grievances were processed
through step four of the grievance procedure, they qual-
ify for arbitration on procedural and timeliness grounds.
For the reasons stated, I find that Respondent must pro-
ceed to arbitration on grievances 77-20 and 77-24; 79-
69, 79-71, and 79-73 in order to be in compliance with
the Board's Order as enforced.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
ORDER
The Respondent, Appalachian Power Company, John
E. Amos Plant, Charleston, West Virginia, its officers,
agents, successors, and assigns, shall
Comply with the order of the National Labor Rela-
tions Board issued on 27 June 1980 in this matter and
proceed to arbitrations, on grievance Nos. 77-20 and 77-
24; 79-69, 79-71, and 79-73.
4 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules - and Regulations , the fmdmgs, conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.