Arizona Portland Cement Co.

National Labor Relations Board - Board Decisions

Mar 11, 1991

302 N.L.R.B. 36 (N.L.R.B. 1991)

36
302 NLRB No. 5
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
2 Contrary to the Respondent’s contention, we note that the judge’s conclu-
sions were not based on a finding of continuity of representative, but rather
on his finding that the incumbent Union’s status as a successor union did not
relieve the Respondent of its obligation to bargain with the certified represent-
ative of the unit employees concerning any changes in existing rates of pay,
wages, hours, and conditions of employment.
3 284 NLRB 53, 55–56 (1987).
4 The grievances arbitrated during this period were not, strictly speaking,
contractual grievances because the parties had not agreed on any contract.
They are apparently grievances claiming violations of terms and conditions
which the Respondent had put into effect as its final contract offer on June
20, 1984. That the parties did not regard this as a mutually binding agreement
is indicated by the employees’ participation in strike action on several occa-
sions, free of any constraint by the no-strike clause that was also part of the
Respondent’s final offer. The Respondent’s conduct in agreeing to arbitrate
certain grievances does not suggest an agreement to arbitrate all contractual
grievances because the Respondent specifically declined to arbitrate at least
two grievances during the 1984–1987 postcontract period.
5 The Board contrasted the resolution of past grievances with other matters
relating to the employees’ current terms and conditions of employment, hold-
ing that the former, unlike the latter, did not amount to imposing a bargaining
agent on employees who had not selected that agent. Ibid.
Arizona Portland Cement Company, a Division of
California Portland Cement Company, a Divi-
sion of CalMat and Local 296, Independent
Workers of North America. Case 28–CA–8742
March 11, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On October 12, 1988, Administrative Law Judge
George Christensen issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions,2 as modified, and to adopt the recommended
Order as modified.
We agree with the judge’s findings that the Re-
spondent violated Section 8(a)(5) of the Act by unilat-
erally (1) eliminating the existing grievance procedure
and substituting a dispute resolution policy which did
not include involvement of the Union, (2) discontinu-
ing the policy of permitting employee representatives
to conduct union business during worktime with com-
pensation, (3) abolishing union bulletin boards, and (4)
disparately prohibiting use of the Respondent’s bulletin
boards by the Union, while permitting other organiza-
tions and employees to use the bulletin boards for non-
work-related purposes. We, however, reverse the
judge’s finding that the Respondent violated Section
8(a)(5) and (1) by declining to arbitrate grievances
after February 2, 1987, when the Board certified the
Independent Workers of North America (IWNA) as the
unit employees’ exclusive representative.
As the judge correctly acknowledged: ‘‘Under Indi-
ana & Michigan Electric3 and its progeny, the Board
has ruled it is not legally empowered to direct an em-
ployer to arbitrate an employee grievance in the ab-
sence of employer agreement thereto.’’ To the extent
that Appalachian Power Co., 250 NLRB 228 (1980),
affd. mem. 660 F.2d 488 (4th Cir. 1981), cert. denied
454 U.S. 866 (1981), on which the judge relied, might
be read as dispensing with the consent requirement, it
has clearly been overruled by Indiana & Michigan
Electric, supra. Hence, the dispositive issue in this case
is whether, as the judge concluded, the Respondent had
expressed a consent to arbitrate that would cover all
the postcertification grievances at issue here. We do
not agree that the record supports the finding of such
an agreement.
The Respondent’s statements and other conduct dur-
ing the period 1984–1987—when there was no con-
tract in effect but the Respondent recognized the Boil-
ermakers as the employees’ representative—manifested
an intent not to be bound generally to arbitrate all
grievances, but rather to decide whether to arbitrate on
a case-by-case basis.4 We find no basis for concluding
that the Respondent was, through its statements (which
the judge characterized as ‘‘ambiguous’’) and other
conduct, also consenting to arbitrate all future griev-
ances with a new bargaining representative certified in
a Board election.
A more difficult question, however, is presented by
the particular grievances that the Respondent, prior to
February 2, 1987, had specifically agreed to arbitrate.
The difficulty here is that the Respondent had agreed
to arbitrate those grievances with the Boilermakers
Union as the opposing party representing the employ-
ees. Did that agreement include a consent to arbitrate
the grievances even when a different representative
was representing the employees?
If the employees had merely repudiated the Boiler-
makers without also selecting a new collective-bargain-
ing representative, the issue as to those grievances
could be resolved under Missouri Portland Cement
Co., 291 NLRB 1043 (1988). In that case, the Board
held that an employer was obligated to complete unfin-
ished business, so to speak, by meeting with the union
that was its employees’ former bargaining representa-
tive to resolve grievances that had arisen at a time
when the employer still had an obligation to recognize
that representative. Id. at 1043–1044.5 But the Boiler-
makers have not filed the charges in this case. Rather,
the IWNA filed the charges and the judge’s rec-
ommended remedy and Order clearly would require
37ARIZONA PORTLAND CEMENT CO.
6 This does not mean that the employees have no recourse as to the unre-
solved earlier grievances. The Respondent is required to bargain with the
IWNA, the employees’ current representative, concerning any still-existing
grievances that have not been resolved. The grievance-processing procedure
could result in, inter alia, any of the following outcomes: negotiated settle-
ments; the use of economic action by the IWNA if settlements are not
reached; or an agreement by the parties to relinquish their bargaining authority
and delegate the power to decide the disputes (all or any of them) to a third
party—an arbitrator.
1 I join my colleagues, however, in affirming all other aspects of the judge’s
decision.
the Respondent to deal with the IWNA in the process-
ing and arbitration of the past grievances that arose
when the Boilermakers represented the employees. In
any event, it would hardly be conducive to industrial
peace to have two unions simultaneously representing
the employees, albeit with respect to different time pe-
riods.
We conclude that there is no sound basis for requir-
ing the Respondent to arbitrate even the grievances it
had earlier agreed to arbitrate because we do not find
clear consent to arbitrate those grievances with a dif-
ferent bargaining representative. The presumption of
arbitrability recognized in Steelworkers v. Gulf Naviga-
tion Co., 363 U.S. 574 (1960), is a powerful one, but
even in that case it was grounded in an agreement be-
tween the parties that would be the parties to the arbi-
tration. There is no such agreement here, either oral or
written. We cannot agree with our dissenting col-
league’s suggestion that the Respondent’s agreements
with its ‘‘employees’’ to arbitrate particular grievances
bound the Respondent to arbitrate those grievances
with the IWNA, when those agreements were made
before the IWNA defeated the Boilermakers in the
Board election and was certified as the employees’
new representative. As our colleague apparently
agrees, the votes by which the employees had disaffili-
ated from the Boilermakers and affiliated with the
IWNA were not shown to have resulted in continuity
of representation. The IWNA was a new collective-
bargaining representative, and there is no evidence that
the Respondent had consciously made agreements with
the IWNA after the affiliation vote but prior to the
IWNA’s Board certification. Indeed, the Respondent
would have acted at its peril in making such agree-
ments during that period because this would have en-
tailed withdrawing recognition of the previously recog-
nized incumbent during the pendency of a Board elec-
tion designed to resolve a question concerning rep-
resentation. See RCA Del Caribe, 262 NLRB 963
(1982). In any event, the General Counsel does not
contend that the Respondent had specifically agreed to
arbitrate grievances with the IWNA as the employees’
representative. He relies on principles set forth in Ap-
palachian Power, supra, that, as noted above, did not
survive the Board’s opinion in Indiana & Michigan
Electric.
Accordingly, for the foregoing reasons, we shall de-
lete those provisions of the recommended Order that
require the Respondent to arbitrate grievances with the
IWNA.6
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Ari-
zona Portland Cement Company, a division of Califor-
nia Portland Cement Company, a division of CalMat,
Rillito, Arizona, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Failing or refusing to timely follow and apply
the terms of article 18 of its June 20, 1984 imple-
mented final offer, except for the final step of the
grievance procedure providing for submission to bind-
ing arbitration, until and unless it has bargained with
Local 296 either to agreement or impasse concerning
any changes therein.’’
2. Substitute the following for paragraph 2(b).
‘‘(b) Timely process any pending and future griev-
ances in accordance with the terms and conditions of
article 18 of its June 20, 1984 implemented final offer,
except for the final step of the grievance procedure
providing for submission to binding arbitration, until
and unless it has bargained with Local 296 either to
agreement or impasse on proposals for changes there-
in.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
MEMBER DEVANEY, dissenting in part.
Contrary to my colleagues, I agree with the judge’s
finding that the Respondent violated Section 8(a)(5) of
the Act by refusing to arbitrate grievances after Feb-
ruary 2, 1987, when the Board certified the Independ-
ent Workers of North America (IWNA) as the unit em-
ployees’ exclusive representative.1 The judge found
that the Respondent by its conduct had demonstrated
its agreement to adhere to its longstanding practice of
arbitrating grievances. This established term and condi-
tion of employment had been set forth in the Respond-
ent’s contract with the unit employees’ prior bargain-
ing representative and was consistent with the Re-
spondent’s final offer to IWNA’s predecessor union.
The record shows that the 1984 negotiations for a
new contract between the Respondent and the Boiler-
makers Union, the unit employees’ representative at
that time, were unsuccessful. Accordingly, on June 20,
1984, the Respondent implemented its final offer. This
final offer included major changes in the expired col-
lective-bargaining agreement, but did not modify pro-
visions providing for a four-step grievance procedure
that culminated in binding arbitration.
38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 284 NLRB 53, 57–58 (1987).
3 Thus, this case also differs from Indiana & Michigan to the extent that
there an employer refused to arbitrate grievances upon the expiration of a col-
lective-bargaining agreement. Here, the Respondent expressly maintained the
arbitration provision of the expired agreement for nearly 3 years and does not
rely on the expiration of the contract as the basis for its abrogation of its duty
to arbitrate grievances.
4 Indiana & Michigan, supra at 58.
5 There is no basis for my colleagues’ suggestion that there is a danger in
this case that two unions simultaneously will be representing the unit employ-
ees concerning arbitrations relating to different time periods. The IWNA has
replaced the Boilermakers as the employees’ bargaining representative, but the
identity, status, and role of the persons who process grievances for the local
Union has remained the same.
Between June 20, 1984, when the Respondent im-
plemented its final offer, and February 2, 1987, rep-
resentatives of the Respondent and the employees’
local union processed more than 100 grievances filed
during that period, and one grievance that arose during
the term of the expired contract went to arbitration. In
addition, the Respondent agreed to arbitrate 16 griev-
ances that arose after the expiration of the contract,
agreed on arbitrators to hear 5 of those grievances and
the dates for hearings, participated in 2 arbitration
hearings, and accepted the arbitrator’s decisions in
those 2 cases. Early in that period, the Respondent re-
fused to arbitrate two grievances: one involved the al-
leged improper termination of the contract on April 30,
1984, and the other involved a dispute arising soon
after contract expiration concerning whether employees
had to supply their own tools.
On October 15, 1986, a majority of the unit mem-
bers voted to disaffiliate from the Boilermakers and to
affiliate with IWNA. On January 23, 1987, a majority
of the unit employees voted for representation by
IWNA in a Board-conducted election, and the Board
certified IWNA as the exclusive bargaining representa-
tive of the unit on February 2, 1987.
Also on February 2, the Respondent informed
IWNA that ‘‘as a consequence of’’ the Union’s elec-
tion as bargaining representative, the Respondent had
unilaterally repudiated the grievance/arbitration proce-
dure, that it was withdrawing its agreement to arbitrate
the 16 grievances it had agreed to arbitrate, and that
it would cancel the hearings scheduled for 3 of those
grievances. Since that time, the Respondent has re-
fused to arbitrate any of the grievances pending on
February 2.
The judge found that the unit employees’ vote to
change the affiliation of their local union from the
Boilermakers to IWNA in union-conducted and Board-
conducted elections did not permit the Respondent to
unilaterally eliminate or change existing terms and
conditions of employment. The judge noted that
throughout the previous 30 years, the 1981–1984 con-
tract, and the administration of the June 1984 imple-
mented final offer (between June 20, 1984, and Feb-
ruary 2, 1987), the employees’ local union in its three
affiliations (Cement Workers, Boilermakers, and
IWNA) processed grievances through essentially the
same persons and the Respondent never expressed or
had any reasonable basis to doubt that the unit employ-
ees desired continuous representation by those persons.
The judge properly recognized that under Indiana &
Michigan Electric Co.,2 ‘‘the arbitration commitment
arises solely from mutual consent,’’ and that this duty
cannot be mandated solely by operation of the Act. I
find that there is ample evidence of the Respondent’s
agreement with its employees to arbitrate their griev-
ances through their designated representative, the local
union. The Respondent consistently agreed over the
nearly 3-year period in question to arbitrate all unre-
solved third-step grievances with the employees’ rep-
resentative, except two grievances early in 1984 related
to the termination of the 1981–1984 contract. In con-
trast with the Indiana & Michigan situation, the agree-
ment to arbitrate in this case is not a product of collec-
tive bargaining. Instead, the Respondent’s consent to
arbitrate grievances and its continued participation in
arbitrations resulted from the Respondent’s imposition
of its final contract offer in 1984, and its subsequent
conduct over a 3-year period.3 That the Respondent’s
consent to arbitration was manifested by its conduct,
rather than by a contract, does not diminish the Re-
spondent’s commitment to the arbitral process. Con-
trary to my colleagues in the majority, I find that the
Respondent’s conduct during the 1984–1987 period
does not show that the Respondent had decided to ar-
bitrate grievances only on a case-by-case basis. Rather,
the Respondent’s agreement to arbitrate 16 grievances
during that period demonstrates that it has agreed ‘‘to
relinquish economic weapons . . . otherwise available
under the Act to resolve disputes.’’4
The certification of IWNA as the employees’ bar-
gaining representative in February 1987 provided no
legitimate basis for the Respondent’s abandonment of
its agreement to process grievances through the arbitra-
tion step. In view of the Respondent’s consent to sub-
mit unresolved grievances to arbitration, it was not
privileged to back out of that agreement simply be-
cause the employees selected a new bargaining rep-
resentative. The employees actually changed the affili-
ation of their local union in October 1986 by voting
to disaffiliate from the Boilermakers and affiliate with
IWNA. Despite this change in the employees’ des-
ignated representative, the Respondent did not repudi-
ate its agreement to arbitrate grievances until some 4
months later, when IWNA was certified pursuant to
the Board-conducted election. I conclude that this
event did not relieve the Respondent of its obliga-
tion—into which it freely entered—to arbitrate its em-
ployees’ grievances.5 Accordingly, for the reasons set
forth by the judge, I would adopt his finding that the
Respondent violated Section 8(a)(5) and (1) by refus-
ing to arbitrate grievances after February 2, 1987.
39ARIZONA PORTLAND CEMENT CO.
Respondent violated Section 8(a)(5) and (1) by refus-
ing to arbitrate grievances after February 2, 1987.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT fail or refuse to timely follow and
apply the terms of article 18 of our June 20, 1984 im-
plemented final offer, except for the final step of the
grievance procedure providing for submission to bind-
ing arbitration, until and unless we have bargained
with Local 296, Independent Workers of North Amer-
ica, either to agreement or impasse concerning any
changes therein.
WE WILL NOT fail or refuse to grant our production
and maintenance employees released time from their
regular job assignments to process grievances, travel to
and from and participate in contract negotiations with
us, and to pay those employees for time so spent until
and unless we have bargained with Local 296 either to
agreement or impasse over proposals for changes in
our previous practices and policies for such time off
and payment.
WE WILL NOT fail or refuse to supply bulletin
boards within our plant and quarry areas for the exclu-
sive use of Local 296 in posting notices of union meet-
ings and other materials concerning the rates of pay,
wages, hours, and conditions of employment of our
employees represented by Local 296 until and unless
we have bargained with Local 296 either to agreement
or impasse over proposals for changes in our previous
practice and policy of furnishing such bulletin boards.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL advise Local 296 of all grievance adjust-
ments we have made with employees within the unit
represented by Local 296 and rescind any adjustments
to which Local 296 objects.
WE WILL timely process any pending and future
grievances in accordance with the terms and conditions
of article 18 of our June 20, 1984 implemented final
offer, except for the final step of the grievance proce-
dure providing for submission to binding arbitration,
until and unless we have bargained with Local 296 ei-
ther to agreement or impasse on proposals for changes
therein.
WE WILL grant employees within the unit rep-
resented by Local 296 time off from work to process
and adjust grievances, to travel to and from and par-
ticipate in negotiations, and
WE WILL pay them for such time lost from work un-
less and until we have bargained with Local 296 either
to agreement or impasse over proposals to change our
previous policy and practice of granting such time off
and reimbursement therefor.
WE WILL make whole any unit employees who suf-
fered wage losses as a result of our February 2, 1987
elimination of pay for their time spent in activities just
described, with interest on the sums due.
WE WILL provide Local 296 with bulletin boards in
the plant and quarry areas for its exclusive use in post-
ing notices of union meetings and other materials relat-
ing to rates of pay, wages, hours, and working condi-
tions of the employees it represents, and material relat-
ing to other protected, concerted activities unless and
until we have bargained with Local 296 either to
agreement or impasse over the furnishing of such bul-
letin boards.
ARIZONA PORTLAND CEMENT COM-
PANY, A DIVISION OF CALIFORNIA
PORTLAND CEMENT COMPANY, A DIVI-
SION OF CALMAT
Michael J. Karlson, for the General Counsel.
Thomas J. Kennedy, Esq. (Snell & Wilmer), of Phoenix, Ari-
zona, for the Respondent.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge. On
May 10, 1988, I conducted a hearing at Phoenix, Arizona,
to try issues raised by a complaint issued on December 16,
1987, based on a charge filed by Local 296, Independent
Workers of America (IW) on March 5, 1987.
The complaint alleged without prior notice to IW or af-
fording it an opportunity to bargain, Arizona Portland Ce-
ment Company, a Division of California Portland Cement
Company, a Division of CalMat (AP), eliminated the existing
grievance/arbitration procedure, practice, and policy; the ex-
isting practice and policy of paying employee representatives
for time spent processing grievances and engaging in collec-
tive bargaining; the existing practice and policy of providing
plant bulletin boards for exclusive union use to post notices
and information relating to meetings, wages, and/or other
collective-bargaining subjects; and subsequently denied union
40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 I grant counsel for the General Counsel’s posthearing motion to correct the
transcript by making the changes that are noted and corrected, denying, how-
ever, that portion of the motion wherein counsel seek to add counsel for the
Respondent’s alleged admission of pars. 13, 14, and 15 of the complaint and
that, as to par. 7 of the complaint, Benjamin Lewis, John Gresock, Thomas
Brosnan, and Fran Young were agents of the Respondent within the meaning
of Sec. 2(13) of the Act and Thomas Brosnan and Fran Young were super-
visors of the Respondent within the meaning of Sec. 2(11) of the Act.
2 While every apparent or nonapparent conflict in the evidence has not been
specifically resolved below, my findings are based upon my examination of
the entire record, my observation of the witnesses’ demeanor while testifying,
and my evaluation of the reliability of their testimony; therefore any testimony
in the record which is inconsistent with my findings is hereby discredited.
3 Following an October 1986 vote by a majority of the unit employees to
disaffiliate from the International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers & Helpers, AFL–CIO (BB) and affiliate with
IW, and the filing of a petition supported by a majority of the unit employees
for Board certification of IW majority representative status.
4 The agreements also covered the production and maintenance employees
of California Portland Cement Company (CP) at Colton and Mojave, Califor-
nia, represented by Locals 89 and 349.
5 The complaint (as amended at the hearing) alleged, the answer admitted,
and I find at relevant times Lewis was AP’s and CP’s director of industrial
relations, cement division, and an agent of AP and CP acting on their behalf
within the meaning of Sec. 2 of the Act.
6 The complaint alleged and the answer denied at pertinent times Brosnan
was AP’s plant manager and a supervisor and agent of AP acting on its behalf
within the meaning of Sec. 2 of the Act. Brosnan testified he was AP’s plant
manager at all times since 1981 and in charge of all production and mainte-
nance operations; on the basis of that testimony, I find at pertinent times
Brosnan was a supervisor and agent of AP acting on its behalf within the
meaning of Sec. 2 of the Act.
7 Three Gifford-Hill and Company (GH) cement manufacturing plants were
located at Clarkdale, Arizona; Riverside, California; and Oro Grande, Califor-
nia. Their production and maintenance employees were represented by Locals
405, 48, and 192. Regional negotiations were conducted jointly between rep-
resentatives of AP, CP, GH, and International union representatives.
8 Neither the General Counsel nor IW raised any claim a bona fide negotiat-
ing impasse had not occurred at that time.
use of company bulletin boards, thereby violating Section
8(a)(1) and (5) of the National Labor Relations Act (the
Act).
AP conceded commission of the acts just described but de-
nies it thereby violated the Act.
The General Counsel and the Respondent appeared by
counsel and were afforded full opportunity to adduce evi-
dence, examine and cross-examine witnesses, argue, and file
briefs. Both counsels filed briefs.
Based upon my review of the entire record,1 observation
of the witnesses, perusal of the briefs and research, I enter
the following
FINDINGS OF FACT2
I. JURISDICTION AND LABOR ORGANIZATION
The complaint alleged, the answer admitted, and I find at
all pertinent times AP was an employer engaged in com-
merce in a business affecting commerce and IW was a labor
organization within the meaning of the Act.
II. THE UNIT AND EMPLOYEE REPRESENTATIVE STATUS
The complaint alleged, the answer admitted, and I find at
all pertinent times the following constituted a unit appro-
priate for collective-bargaining purposes within the meaning
of Section 9 of the Act:
All production and maintenance employees em-
ployed by AP at its Rillito, Arizona plant, exclud-
ing all office clerical employees, professional em-
ployees, guards and supervisors as defined in the
Act.
The complaint further alleged, the answer admitted, and I
find on January 23, 1987, a majority of the employees within
the above unit cast ballots designating and selecting IW as
their representative for collective-bargaining purposes;3 on
February 2, 1987, the Board certified IW as the exclusive
collective-bargaining representative of the unit employees;
since February 2, 1987, IW has been the exclusive represent-
ative of the unit employees for the purpose of bargaining col-
lectively with AP concerning the rates of pay, wages, hours,
and other terms and conditions of employment of the unit
employees; and that prior to February 2, 1987, Local 296
was a BB affiliate and the exclusive representative of the
unit employees for the purpose of bargaining collectively
with AP concerning the unit employees’ rates of pay, wages,
hours, and other terms and conditions of employment.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
For a considerable time AP has operated a quarry and
plant at Rillito, Arizona, to manufacture cement. Between
1949 and April 1, 1974, the unit specified above was rep-
resented by Local 296, United Cement, Lime, Gypsum & Al-
lied Workers International Union, AFL–CIO (CL) and cov-
ered by a succession of collective-bargaining agreements.4
On April 1, 1984, CL merged with BB; a ‘‘D’’ prefix was
added to precede each local’s numerical designation; the
local and international complement of officers and represent-
atives of all local and regional CL affiliates continued to
function, unchanged; and both those representatives and AP
continued to honor and administer the unexpired AP-CL
agreement for the balance of its term.
Negotiations for a successor to the agreement expiring
April 30, 1984, were commenced prior to its expiration and
continued thereafter. The negotiations were conducted on a
national and regional level between representatives of a coa-
lition of employers in the industry and representatives of the
international union (sometimes accompanied by representa-
tives of affected local unions) and, on a local level, between
employer representatives of each plant and local union rep-
resentatives. The international union representatives who
commenced the national and regional negotiations prior to
the April 1, 1984 merger and the local union representatives
who commenced local negotiations continued in the same
status and role following the merger; the employer represent-
atives were unchanged.
The interests of the Rillito, Colton, and Mojave
employees/Locals 296, 89, and 349 members were rep-
resented, inter alia, by International Union Representatives
Jack Hammond, Kent Weaver, and Ernest Lamereaux. AP
management was represented, inter alia, by Benjamin F.
Weaver 5 and Thomas Brosnan.6
During the negotiations, AP and CP, by Lewis, and Gif-
ford-Hill and Company, by Mason Dickerson,7 advised
Union Representative Weaver negotiations were at an im-
passe8 and the two employers were going to implement their
final contract offers, effective June 20, 1984.
41ARIZONA PORTLAND CEMENT CO.
9 Installation of two-tier wage and vacation systems, elimination of paid sick
leave, establishment of employer discretion over subcontracting, combining
and eliminating jobs, limiting seniority retention, reducing overtime and pen-
alty pay, reducing entitlement to and pay for hazardous work, etc.
10 This finding is based on an admission by Brosnan. In Gifford-Hill & Co.,
285 NLRB 746 (1987), the Board also adopted a finding by Administrative
Law Judge Stevens to the same effect.
11 Following the apparent posting of a union notice on the union bulletin
board to the effect the maintenance employees were not obligated to furnish
tools to perform their work, maintenance employees ceased supplying such
tools and insisted AP supply them; confronted with an AP demand they either
continue to supply those tools to perform their work or clock out, they elected
to clock out and proceeded en masse to demand an audience before the AP-
union committee to press their demand. Lewis refused to meet with the group,
insisted they continue to supply the tools and process a grievance over the AP
refusal to supply them, and stated AP was not going to pay them for the time
they persisted in their refusal to continue working with their own tools. The
employees later returned to work with their tools and filed a grievance seeking
as a remedy pay for their lost time. AP denied the grievance (apparently on
the basis its implemented offer required the employees continue to furnish
such tools) and, in accordance with Lewis’ June 28, 1984 statement, at all
times since AP has refused to arbitrate that grievance.
12 An alleged unfair labor practice strike which lasted approximately 1 week,
in August 1984. No finding the strike was an unfair labor practice strike has
been issued by any legal authority. AP takes the position the maintenance
workers’ actions in support of their tool supply claim constituted a second
work stoppage or strike.
The AP/CP final offer included major changes in provi-
sions of the expired agreement9 but, with minor modifica-
tion, continued in effect, unchanged, provisions:
1. For AP payment for time lost from work by employee
members of the Supplemental Unemployment Benefit &
Sickness Benefit Committee and employee members of the
Safety Committee, while participating in committee meet-
ings, conferences, and inspections; pay for time lost from
work by employees on the union negotiating committee
while traveling to and from and attending national and re-
gional negotiating meetings with the Employer; pay for time
lost from work by employees on the local negotiating com-
mittee while attending local negotiating meetings with the
Employer; and pay for time lost from work by employees
while investigating and adjusting grievances;
2. In an article titled ‘‘Article 18—Grievances and Arbitra-
tion,’’ that each grievance be submitted in writing to AP
within 30 days of the occurrence of the grievance; that ad-
justment of each grievance be attempted at a meeting at-
tended by representatives of the Employer and the grievants
within 10 days of the written submission; that the basis for
any discharge be discussed by employer and employee rep-
resentatives prior to the discharge; and that any grievance
unadjusted at such meeting, at the request of either party
within 10 days after the meeting, be submitted to a bipartite
board consisting of two employee and two employer rep-
resentatives, followed by submission of any grievance in-
capable of adjustment by that board, at the request of either
party within 10 days after such meeting, to a neutral arbitra-
tor designated by the parties, for final and binding resolution;
3. And that AP provide bulletin boards at the plant and
quarry for exclusive use by the Union.
Following the employer representatives’ announcement of
their intentions, one of the employee representatives asked
whether the two Employers would honor the arbitration sec-
tion of the grievance and arbitration provision of their final
offers. Dickerson stated GH would not. Lewis stated AP/CP
would.10
During another (June 26–28, 1984) meeting between
Lewis (plus other management representatives) and Ham-
mond (plus other union representatives), Lewis made a con-
trary statement to Hammond and agreed with Hammond’s re-
joinder the Union and the employees then were not required
to observe the no-strike provision of the implemented final
offer.
In subsequent discussions during the same meeting, Lewis
stated AP would not arbitrate any employee grievance over
a dispute which arose while the meeting was under way.11
Since AP’s June 20, 1984 implementation of its final
offer, Local 296 and the unions its affiliated with (CL, BB,
and IW) have refused to accept that offer and continuously
maintained they and the unit employees are not bound by the
no-strike provision of that offer, and caused the unit employ-
ees to engage in at least one work stoppage.12
AP has met regularly with the unit employees’ representa-
tives to negotiate terms for a new agreement ever since the
April 30, 1984 expiration of the AP/CL agreement, without
ever reaching final agreement.
Between the date it implemented its final offer (June 20,
1984) and the date IW was certified as the unit employees’
collective-bargaining representatives (February 2, 1987), over
100 grievances were filed and processed by AP and the
grievants’ union representatives. During that time period
(June 20, 1984–February 2, 1987), at the request of union
representatives, AP agreed to arbitrate one grievance which
arose during the term of the AP/CL agreement (a discharge),
agreed to arbitrate 16 grievances which arose subsequent to
the expiration of the AP/CL agreement, agreed on arbitrators
to hear five of those grievances and dates for hearings before
those arbitrators, participated in the arbitration hearings of
two cases, and both the Union and AP accepted the decisions
of the two arbitrators who conducted those hearings. Over
the same time period, AP refused to arbitrate two grievances
(over the alleged improper termination of the contract on
April 30, 1984—the basis for the alleged unfair labor prac-
tice strike—and the tool supply grievance discussed above).
On the date the Board certified the results of the January
1987 election (February 2, 1987) AP, without prior notice to
or bargaining with any union representative, instituted, inter
alia, the following changes in provisions of its implemented
offer of June 20, 1984:
1. Elimination of the entire grievance and arbitration arti-
cle;
2. Prohibition of any union business during working hours;
3. Elimination of any pay to employees/union representa-
tives for time lost from work due to processing employee
grievances or traveling to and from and participating in con-
tract negotiations;
4. Elimination of union bulletin boards; and
5. Withdrawal from any commitment to refrain from seek-
ing contribution from the Union for money damages against
AP awarded to employees claiming work-connected injury or
death.
On the same date (February 2, 1987) AP informed local
union representatives it was withdrawing its agreement to ar-
bitrate the 15 grievances it had agreed to arbitrate but had
not reached the hearing stage and was canceling the hearings
scheduled for 3 of those grievances.
Since that time AP has refused to arbitrate any pending
grievances.
42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Foremen orally advise employees seeking to adjust a grievance they
would hear and attempt to adjust the grievance and that the grievant, if dissat-
isfied with their proposed adjustment, could take the grievance up with first,
their department head, and second, the plant manager (with the adjustment or
decision of the latter the final word).
14 AP has also adjusted grievances brought directly to Brosnan by union rep-
resentatives since February 2, 1987.
15 The president and recording secretary.
16 Such as for sale items, thank-you cards (for gifts and flowers presented
by employees to a sick, injured, or retired employee), lost dog notices, rodeo
announcements, announcements of martial arts demonstrations, retirement par-
ties, etc. (a September 16, 1985 written notice posted by Brosnan specifically
authorized posting of for sale items and there was no evidence any subsequent
notice forbidding such posting has ever been displayed).
17 Throughout the previous three-plus decades, the 1981–1984 contract dura-
tion and the administration of the June 1984 implemented offer (between June
1984 and February 2, 1987), Local 296 in its three affiliations (CL, BB and
IW) processed grievances through essentially the same persons—employees
who were officers of the local—and AP never expressed or had any reasonable
basis to doubt the unit employees desired continuous representation by those
employees/representatives.
18 Indiana & Michigan Electric Co., 284 NLRB 53 (1987); U.S. Postal
Service, 281 NLRB 1013 (1986); Union Carbide Co., 275 NLRB 197 (1985);
Harvard Folding Box Co., 273 NLRB 1031 (1984); Wellington Hall Nursing
Home, 257 NLRB 791 (1981); Appalachian Power Co., 250 NLRB 228
(1980), affd. 660 F.2d 488 (4th Cir. 1981), cert. denied 454 U.S. 866 (1981);
Top Mfg. Co., 249 NLRB 424 (1980); Franke’s, Inc., 151 NLRB 532 (1965);
Celotex Corp., 146 NLRB 48, 59–60 (1964), affd. 364 F.2d 552 (5th Cir.
1966), cert. denied 385 U.S. 987 (1966); Sohio Chemical Co., 141 NLRB 810
(1963); Bethlehem Steel Co., 136 NLRB 1500, 1503 (1962), affd. 320 F.2d
615 (3d Cir. 1963); Motoresearch, Inc., 138 NLRB 1490, 1492 (1962).
19 Cisco Trucking Co., 289 NLRB 1399 (1988); Southwest Forest Industries,
278 NLRB 228 (1986), affd. 841 F.2d 270 (9th Cir. 1988); M. A. Harrison
Mfg. Co., 253 NLRB 675 (1980), affd. 682 F.2d 580 (6th Cir. 1982).
Since February 2, 1987, AP has instituted an informal
grievance adjustment procedure with no provision for any
union representation or presence during the adjustments.13
When local union representatives were informed of the
changes enumerated above (on February 2, 1987), they ob-
jected thereto, to no avail.
Since February 2, 1987, AP has adjusted the grievances of
unit employees directly with grievants, without notice to or
any participation by or the presence of a union representa-
tive.14
In view of AP’s February 2, 1987 withdrawal of its pre-
vious commitment to hold the Union harmless from any em-
ployee claim of union liability by virtue of an alleged failure
of union-designated employee members of the plant safety
committee to detect and rectify alleged defects or hazards an
employee or his representative claimed caused the employ-
ee’s work-connected injury or death, the Union withdrew
from further membership on and participation in the affairs
of the plant safety committee.
Following implementation of the February 2, 1987
changes, AP demanded the local union representatives15 sur-
render keys to the locks on the union bulletin boards in the
plant and quarry areas and, following their refusal to comply
with its demand, removed and replaced the locks, removed
all materials from each board and delivered those materials
to the local officers.
When local union representatives subsequently attempted
to post meeting notices, etc. on company bulletin boards in
the plant and quarry, those materials were removed by man-
agement, though personal notices16 continued to be dis-
played, some for substantial periods.
B. Analysis and Conclusions
1. The elimination of article 18
For over three decades preceding February 2, 1987, AP
adjusted unit employees’ grievances by following the steps
of a grievance procedure set out in a succession of contracts
between AP and CL/BB, and (following the April 30, 1984
expiration of the AP/CL contract) AP’s June 1984 imple-
mented offer. The grievants were represented throughout by
fellow employees/local union representatives at each step.
On February 2, 1987, however, without prior notice or
bargaining, AP announced that procedure no longer existed,
informally (by word of mouth) encouraged unit employees to
seek adjustment of their grievances solely with management,
with no provision for representation by fellow
employees/union representatives, and thereafter processed
and adjusted employee grievances without either advising
union representatives of the proposed or actual adjustments
or affording union representatives an opportunity to be
present at those adjustments.
The same employees/union representatives17 who had been
processing grievances on behalf of unit employees the day
before those employees changed affiliation from BB to IW
objected to the sudden and unilateral change, without suc-
cess.
The Board has classified a grievance adjustment procedure
as a term or condition of employment, held it is a mandatory
bargaining subject, and further held an employer failure to
notify and bargain with a labor organization representing the
majority of his or its employees within an appropriate unit
prior to effecting material changes in an existing grievance
adjustment procedure (particularly the elimination of partici-
pation by and at least the presence of that organization’s rep-
resentative in and at any attempted or actual adjustment of
a unit employee’s grievance) violates Section 8(a)(1) and (5)
of the Act.18
The grievance procedure followed by AP and the local
union representing a majority of its employees within an ap-
propriate unit for over 30 years prior to February 2, 1987,
contemplated adjustment of unit employees’ grievances by
joint participation of an employee representative and an em-
ployer representative at each step of the grievance procedure,
thereby assuring compliance with both Sections 9(a) and
8(a)(5) of the Act; thus the elimination of that participation,
without prior notice or bargaining, the subsequent adjustment
of unit employee grievances without the knowledge, partici-
pation, or presence of any employee representative, and over
the objection of employee representatives who normally rep-
resented employees/grievants, clearly appear violative of
those sections of the Act.
AP contends the Union waived any objection to its elimi-
nation of employee representation by failing to request nego-
tiations with respect to the elimination. The short answer is
the regular employee representatives did object to the elimi-
nation as soon as they learned of it and filed the charge
which led to this proceeding. Also, the Board has ruled no
waiver can occur when a union has not received notice and
a reasonable opportunity to bargain concerning such a mate-
rial change prior to its effectuation.19
The sole remaining issue is whether the unit employees’
practically unanimous vote to change the affiliation of their
local union from BB to IW in union-conducted and Board-
conducted elections, followed by Board certification of the
43ARIZONA PORTLAND CEMENT CO.
20 Westinghouse Broadcasting, 285 NLRB 205 (1987), affd. 849 F.2d 15
(1st Cir. 1988); A.G. Boone Co., 285 NLRB 1070 (1987); Advertisers Mfg.
Co., 280 NLRB 1185 (1986); Sandpiper Convalescent Center, 279 NLRB
1129 (1986), enfd. 126 LRRM 2204 (4th Cir. 1987); San Antonio Portland
Cement Co., 277 NLRB 338 (1985).
21 Perhaps to retaliate over AP’s loss of use of the union label, which might
affect the sale of AP’s products on building and construction projects per-
formed by union contractors (use of the label was specified in the expired con-
tract and implemented offer).
22 Over the tool dispute and alleged improper contract termination.
23 Indiana & Michigan Electric Co., 285 NLRB 53 (1987); Gifford-Hill &
Co., 285 NLRB 746 (1987); Bacardi Corp., 286 NLRB 422 (1987).
24 Taft Broadcasting Co., 185 NLRB 202 (1970), enfd. 441 F.2d 1382 (1st
Cir. 1971); Appalachian Power Co., 250 NLRB 228 (1980), enfd. 660 F.2d
488 (4th Cir. 1981), cert. denied 454 U.S. 866 (1981), compliance directed
286 NLRB 274 (1986); also see Arrow Sash & Door Co., 281 NLRB 1108
(1986).
results of the latter election, permitted AP to unilaterally
eliminate or change existing rates of pay, wages, hours, or
conditions of employment.
The Board, with court approval, consistently has ruled an
employer has a duty to notify and bargain with the union that
has won a Board-conducted election concerning any pro-
posed changes in existing rates of pay, wages, hours, and
conditions of employment from the date of the election, and
certainly from the date of Board certification of the election
results, and therefore violates Section 8(a)(1) and (5) of the
Act by unilaterally making any such changes after the elec-
tion and prior to notifying and bargaining with the winning
union.20
It has been the Board’s reasoning to permit an employer
to make such changes following the employee choice of a
new bargaining representative, without affording that rep-
resentative an opportunity to bargain, undermines the em-
ployee choice and constitutes bad faith; certainly AP’s elimi-
nation of the existing grievance adjustment procedure, par-
ticularly the denial of any union representational role in its
administration following over 30 years of such representa-
tion, had that effect.21
On the basis of the foregoing, I find and conclude by its
February 2, 1987 elimination of the existing grievance ad-
justment procedure, particularly the elimination of the pres-
ence, participation, and representation of any IW representa-
tive at proposed and actual AP adjustments of unit employee
grievances, AP violated Section 8(a)(1) and (5) and Section
9(a) of the Act.
The elimination of the longstanding practice of achieving
through arbitration final resolution of unit employee griev-
ances which the parties were unable to resolve through the
preceding steps of the grievance adjustment procedure is a
more complex issue.
AP’s policy and practice following its June 20, 1984 im-
plementation of its final contract offer was ambiguous; AP’s
final offer preserved arbitration as the final step of article 18
in resolving unit employees’ grievances; at one point subse-
quent to AP’s implementation of that offer, its representative
stated AP would continue to observe and follow that step
with respect to grievances which arose after the April 30,
1984 contract expiration; at another point the same represent-
ative stated it would not; subsequent to the contract expira-
tion AP refused to arbitrate two grievances (apparently be-
cause unit employees ceased work to press these griev-
ances);22 and, subsequent to the contract termination, AP
reached agreement with Local 296 representatives to arbitrate
16 of the 100 or more grievances which arose and were filed
by those representatives subsequent to the contract termi-
nation, AP and Local 296 representatives agreed on four ar-
bitrators to hear and decide 4 of the 16, and AP/Local 296
representatives participated in the hearing of one of those 4
and accepted the resulting decision.
Under Indiana & Michigan Electric and its progeny,23 the
Board has ruled it is not legally empowered to direct an em-
ployer to arbitrate an employee grievance in the absence of
employer agreement thereto.
In this case, on February 2, 1987, AP repudiated its agree-
ment to proceed with three scheduled arbitration hearings be-
fore three jointly designated arbitrators, repudiated its agree-
ment to continue processing 12 additional grievances through
arbitrator choice and hearing dates, and announced AP there-
after neither would arbitrate the 15 employee grievances it
previously had agreed to arbitrate nor arbitrate any other
pending or future grievances.
In view of the fact the Union desisted from any strike ef-
fort to secure satisfactory resolution of any of the 100 plus
grievances filed subsequent to April 30, 1984 (following its
August 1984 strike in support of its grievance alleging im-
proper or unlawful termination of the prior contract), and
AP’s reciprocal processing between August 1984 and Feb-
ruary 1, 1987, of 16 grievances through the arbitration step
of article 18, I find and conclude the unit employees and the
Union reasonably believed AP on February 1, 1987, had re-
solved the ambiguity created by its conflicting 1984 state-
ments in favor of honoring its arbitration commitment, there-
by entitling the Union to notice and a reasonable opportunity
to bargain over any change therein.
I therefore find and conclude by its February 2, 1987 fail-
ure or refusal to continue to honor the preceding practice,
policy, and procedure of processing unit employee grievances
through the arbitration step of article 18 without providing
IW reasonable notice and consultation of any change therein,
AP violated Section 8(a)(1) and (5) of the Act.24
2. The elimination of employee time off from work
with pay to process grievances and engage
in negotiations
For a period in excess of 30 years, by contract agreement
and under the June 20, 1984 implemented final offer, AP
employees within the unit were granted reasonable amounts
of time to process and adjust unit employee grievances, to
travel and participate in contract negotiations, and were com-
pensated for the time they lost from work while performing
these functions.
That practice and policy continued under the terms of the
implemented offer following the unit employees’ October
1986 union-conducted vote to disaffiliate from BB and affili-
ate with IW, the unit employees’ January 1987 Board-con-
ducted vote to the same effect, and the Board’s February 2,
1987 certification thereof.
Then on February 2, 1987, without prior notice to the
same representatives who had been processing grievances
and conducting negotiations with AP the day and months be-
fore, AP issued an order barring any employee or employee
representative from conducting any union business on work-
44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 AP thereafter required any employee or employee representative desiring
to conduct union business during working hours to secure permission from su-
pervision and to clock out while engaging in such business.
26 Axelson, Inc., 234 NLRB 414 at 415 (1978), enfd. 599 F.2d 91 (5th Cir.
1976).
27 BASF Wyandotte Corp., 276 NLRB 1576 (1985); BASF Wyandotte Corp.,
274 NLRB 978 (1985), enfd. 798 F.2d 849 (5th Cir. 1986); Mid-State Tele-
phone Corp., 262 NLRB 1291 (1982), enfd. in part 706 F.2d 401 (2d Cir.
1983); S. Freedman Electric, 256 NLRB 432, 443 (1981); Axelson, Inc., ibid.
28 Proof Co., 115 NLRB 309 (1956), enfd. 242 F.2d 560 (7th Cir. 1957);
Honeywell, Inc., 262 NLRB 1402 (1982), enfd. 722 F.2d 405 (8th Cir. 1983);
Allied Stores of New York, 262 NLRB 985 (1982); Central Vermont Hospital,
288 NLRB 514 (1988); Midwest Stock Exchange, 244 NLRB 1108 (1979),
enfd. in pertinent part 620 F.2d 629 (7th Cir. 1980).
ing time,25 and ceased to compensate any employees or em-
ployee representatives for time lost from work to process and
adjust grievances, to travel to and from contract negotiations,
and to engage in contract negotiations.
AP contends any provision for employee and employee
representative time off from work and compensation for such
lost work time for the purpose of processing and adjusting
grievances and/or engaging in contract negotiations is part of
an employer-union relationship and not an employer-em-
ployee relationship, therefore was cancellable at will (and
particularly after the local union’s change in affiliation), and
therefore its unilateral elimination of those provisions with-
out notice or bargaining with IW was not violative of the
Act.
It is well established certain provisions of an expired col-
lective-bargaining contract relate to the employer-union rath-
er than the employer-employee relationship and therefore
need not be honored by the employer following such expira-
tion, such as union security, union dues-checkoff and super-
seniority provisions. However, it is also well established,
contrary to AP’s contentions, that provision for paid time off
for unit employees while engaging in grievance adjustment
and negotiations fall in the employer- employee category
rather than the employer-union, inasmuch as they involve
representation with respect to disputes over those most essen-
tial of employee concerns—rates of pay, wages, hours and
conditions of employment.26
Thus the Board, with court approval, repeatedly has held
an employer’s elimination or termination of the practice or
policy of providing employees and their representatives time
off from their jobs with pay to adjust grievances and partici-
pate in negotiations, without prior notice to their representa-
tive and providing that representative a reasonable oppor-
tunity to bargain, violates Section 8(a)(1) and (5) of the
Act.27
Therefore, on the grounds set forth above and in the pre-
ceding section of this decision, I find and conclude by its
February 2, 1987 elimination of the preceding practice or
policy of permitting employees and their representatives time
off from work to adjust grievances and to travel to and from
and participate in negotiations, without notifying IW of the
proposed change, and without providing IW a reasonable op-
portunity to bargain, AP violated Section 8(a)(1) and (5) of
the Act.
3. The elimination of union bulletin boards and barring
union use of company bulletin boards
Findings have been entered the day AP received notice the
Board certified the unit employees’ changed affiliation from
BB to IW, it denied Local 296’s representatives employed by
AP continued use of plant bulletin boards it provided the
local union to notify unit employees of local union meetings,
conferences, and other matters affecting their employment
conditions and representation by the local union, and subse-
quently denied the use of company bulletin boards for post-
ing such material while permitting the continued posting by
employees, addressed to other employees, of notices solicit-
ing and promoting sales, participation in events, etc.
It is undisputed these actions were taken by AP without
prior notice to the Local 296 representatives who had been
posting notices to employees concerning employment condi-
tions, etc., for over 30 years, or bargaining with those rep-
resentatives over the changed practice or policy (embodied in
AP’s June 1984 written, implemented final contract offer).
As in the case of AP’s payments to employees to com-
pensate them for wage losses while engaging in grievance
processing and negotiations, when it had provided for over
30 years bulletin boards for union use in informing employ-
ees of meetings, negotiations, and other concerns involving
their employment, by its elimination of union use of those
bulletin boards AP eliminated a basic condition of employ-
ment and mandatory subject of bargaining. Such a condition
may not be unilaterally retracted or eliminated without first
providing the employees’ union representatives notice of the
proposed elimination and a reasonable opportunity to bar-
gain; in any event, AP’s subsequent disparate application of
access to its bulletin boards by prohibiting employees des-
ignated to represent their fellow employees from posting no-
tices to the unit employees concerning meetings, employment
conditions, etc. while permitting employees to post notices
soliciting fellow employees to purchase goods, attend events,
etc. violated the Act.
I therefore find and conclude by eliminating Local 296’s
use of bulletin boards provided for its use following the
Board certification of its affiliation change, without prior no-
tice and a reasonable opportunity to bargain, and its subse-
quent disparate denial of employee/Local 296 representatives
use of its bulletin boards to post notices to unit employees
concerning union meetings and matters affecting their condi-
tions of employment, AP violated Section 8(a)(1) and (5) of
the Act.28
CONCLUSIONS OF LAW
1. At all pertinent times AP was an employer engaged in
commerce in a business affecting commerce and IW was a
labor organization within the meaning of Section 2 of the
Act.
2. At all pertinent times the following constituted a unit
appropriate for collective-bargaining purposes within the
meaning of Section 9 of the Act:
All production and maintenance employees employed
by AP at its Rillito, Arizona plant, excluding all office
clerical employees, professional employees, guards and
supervisors as defined in the Act.
3. At all pertinent times AP’s employees within the above
unit have been represented by Local 296 in its various affili-
ations (CL, BB, and IW) as the duly designated designee of
a majority of the unit employees and so recognized by AP.
45ARIZONA PORTLAND CEMENT CO.
29 In view of this Order, I find no need to direct that AP afford access to
AP bulletin boards, which it denied following the elimination of union access
to previously existing bulletin boards provided for use of the unit employees’
collective-bargaining representative.
30 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
4. On February 2, 1987, and subsequently AP violated
Section 8(a)(1) and (5) of the Act by:
a. Eliminating the existing grievance and arbitration prac-
tices, policies, and procedures applicable to its unit employ-
ees without prior notice to and bargaining with IW concern-
ing such elimination;
b. Eliminating without prior notice to and bargaining with
IW the existing policy, practice, and procedure of reimburs-
ing unit employees for wages lost while processing their and
other unit employees’ grievances, for wages lost while en-
gaging in contract negotiations with AP, and for wages lost
while traveling to and from locations where such negotia-
tions were and are conducted;
c. Eliminating without prior notice to and bargaining with
IW the previous practice of providing bulletin boards within
the Rillito plant and quarry for the exclusive use of the union
representing the unit employees; and
d. Disparate application of employee access to AP bulletin
boards, i.e., barring employee posting of union-related mate-
rial while permitting employee posting of nonunion-related
material.
5. The unfair labor practices specified above affected and
affect interstate commerce as defined in the Act.
THE REMEDY
Having found AP committed unfair labor practices in vio-
lation of the Act, I recommend AP be ordered to cease and
desist therefrom and to take affirmative action designed to
effectuate the policies of the Act.
Inasmuch as I found AP violated the Act by eliminating
the grievance and arbitration practice, procedure, and policy
it established and followed prior to February 2, 1987, with-
out prior notice to or consultation with IW, I recommend AP
be ordered to cease and desist from failing or refusing to
timely follow and apply that preexisting practice, procedure,
and policy; to affirmatively be directed to advise IW of the
terms of any unit employee grievance adjustments entered
into without the knowledge or consent of a union representa-
tive and rescind any adjustments to which IW objects; and
to timely process any pending or future unit employee griev-
ances and arbitrations in accordance with the terms of the
practice, policy, and procedure set out in article 18 of the
June 1984 final AP offer until and unless AP and IW have
bargained either to impasse or agreement on any proposed
changes in the terms of article 18.
Since I also found AP violated the Act by eliminating the
practice and policy it established and followed prior to Feb-
ruary 2, 1987, with respect to reimbursing unit employees for
wages lost due to participating in grievance processing and
adjustment, plus wages lost due to unit employees’ travel to
and from and participation in negotiations, without prior no-
tice to or consultation with IW, I recommend AP be ordered
to cease and desist therefrom, reinstitute its previous policy
and practice of granting time off from work to unit employ-
ees for such activities and reimbursing them for any wages
lost as a result and that AP be directed to make whole any
unit employees who have lost wages as a result of the elimi-
nation just noted, with interest on the lost wages calculated
in the manner set forth in F. W. Woolworth Co., 90 NLRB
289, plus interest thereon computed in accordance with the
formulae set out in New Horizons for the Retarded, 283
NLRB 1173 (1987), and Isis Plumbing Co., 138 NLRB 716
(1962), until and unless AP and IW have bargained either to
impasse or agreement on any proposed changes with respect
to such time off and reimbursement therefor.
Lastly, since I entered findings AP violated the Act by its
February 2, 1987 elimination of its previous practice and pol-
icy of furnishing bulletin boards for the exclusive use of its
unit employees’ collective-bargaining representative without
prior notice to or consultation with IW, I recommend AP be
ordered to cease and desist from its withdrawal of the use
of the bulletin boards in question and be ordered to furnish
IW representatives with keys and access to such boards for
posting of material relating to union and other protected,
concerted activities,29 until and unless AP and IW have bar-
gained either to impasse or agreement on any proposed
changes in the furnishing and use of such bulletin boards.
On the basis of the foregoing findings of fact, conclusions
of law, and the entire record, I recommend the issuance of
the following30
ORDER
The Respondent, Arizona Portland Cement Company, a di-
vision of California Cement Company, a division of CalMat,
Rillito, Arizona, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing or refusing to timely follow and apply the
terms of article 18 of its June 20, 1984 implemented final
offer until and unless it has bargained with Local 296 either
to agreement or impasse concerning any changes therein.
(b) Failing or refusing to grant its employees within the
unit represented by Local 296 released time from their regu-
lar assignments to process grievances, travel to and from and
participate in contract negotiations, and pay for time so spent
until and unless it has bargained with Local 296 either to
agreement or impasse concerning such time off and payment
therefor.
(c) Failing or refusing to grant representatives of Local
296 access to bulletin boards in the plant and quarry des-
ignated for their exclusive use, for the purpose of posting no-
tices of union meetings and other materials concerning the
rates of pay, wages, hours, and conditions of employment of
the employees represented by Local 296 until and unless it
has bargained with Local 296 either to agreement or impasse
concerning the furnishing and use of such bulletin boards.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Advise Local 296 of all grievance adjustments it has
made with employees within the unit represented by Local
296 and rescind any adjustments to which Local 296 objects.
(b) Timely process any pending and future grievances and
arbitrations in accordance with the terms and conditions of
article 18 of its June 20, 1984 implemented final offer until
and unless it has bargained with Local 296 either to agree-
ment or impasse on proposals for changes therein.
46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
31 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
(c) Grant employees within the unit represented by Local
296 time off from work to process and adjust grievances, to
travel to and from locations designated for contract negotia-
tions, to participate in such negotiations, and pay those em-
ployees for any wages lost as a result, until and unless it has
bargained with Local 296 either to agreement or impasse on
proposals to change those practices, policies and procedures.
(d) Make whole any unit employees who have suffered
wage losses as a result of the February 2, 1987 elimination
of pay for their time spent in the activities just described, in
the manner and with interest thereon as set forth in the rem-
edy section of this decision.
(e) Furnish Local 296 representatives with bulletin boards
designated for the exclusive use of Local 296 at the Rillito
plant and quarry to post notices of union meetings and other
material relating to the rates of pay, wages, hours, and condi-
tions of employment of the employees represented by Local
296 and other protected, concerted activities, unless and until
it has bargained with Local 296 either to agreement or im-
passe over the furnishing of such bulletin boards.
(f) Post at its facilities at Rillito, Arizona, copies of the
attached notice marked ‘‘Appendix.’’31 Copies of the notice,
on forms provided by the Regional Director for Region 28,
shall be signed by an authorized representative of Arizona
Portland Cement Company, posted immediately after their re-
ceipt, and maintained for 60 consecutive days thereafter in
conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken to ensure the notices are not altered, defaced, or cov-
ered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.