Calmat Co.

National Labor Relations Board - Board Decisions

May 26, 1987

283 N.L.R.B. 1103 (N.L.R.B. 1987)

CALMAT CO.
California Portland Cement Division , Calmat Co.
and Cement, Lime, Gypsum & Allied Workers,
Division of the Boilermakers, Iron , Ship Build-
ers, Blacksmiths , Forgers and Helpers, Local
Lodge D89. Case 31-CA-15662
26 May 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 3 October 1986 Administrative Law Judge
Jay R. Pollack issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, ' and the Respondent ' filed an answering brief
to the exceptions. The Respondent also filed cross-
exceptions and a supporting brief, and,the General
Counsel filed an answering brief to the cross-excep-
tions.
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 recommended Order of, the administrative
law judge is adopted and the complaint is dis-
missed. -
The General Counsel and the Respondent have'excepted to some of
the judge's credibility findings. The Board's established policy is not to
overrule an administrative law ,fudge's credibility resolutions unless the
clear preponderance of all the relevant evidence 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 examined the record and,
find no basis for reversing the findings -
Raymond M. Norton,' Esq., for the General Counsel.
James A. Zapp, Esq. and Sally ^ R. Levine, Esq. (Paul,
Hastings; Janofsky & Walker), of Santa Monica, Cali-
fornia, for the Respondent.
Michael J. Stapp, Esq. (Blake & Uhlig), of Kansas City,
Kansas, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law, Judge. I heard
this case in trial at Los Angeles, California , on June 23,
1986. Based on an unfair labor practice charge filed on
March 17, 1986 , by Cement , Lime, Gypsum & Allied
Workers ,, Division of the Boilermakers , Iron Ship Build-
ers, Blacksmiths , Forgers and Helpers, Local Lodge D89
(the Union), the Regional Director for Region 31 of the
National Labor Relations Board issued a complaint and
notice of hearing on , May 1 against California Portland
1103
Cement Division, Calmat Co. (Respondent). The com-
plaint alleges in substance that Respondent violated Sec-
tion 8(a)(5) and (1) of the National Labor Relations Act,
by refusing to furnish the Union with, certain requested
information allegedly relevant to -the Union's perform-
ance of.,its duties as collective-bargaining representative
of a unit of Respondent's employees.
All parties were given full opportunity to appear, to
introduce relevant evidence and cross-examine witnesses,
to, argue orally, and to file briefs., Based on the entire
record and from my observation of the demeanor of the
witnesses, I make the following
FINDINGS OF FACT AND CONCLUSIONS
1. JURISDICTION
Respondent, a California corporation, has an office and
principal place of business located in Los Angeles, Cali-
fornia, and production' facilities located at El Monte,
Colton, Mojave, and Tehachapi, California; where it is
engaged in the manufacture of cement. Respondent, in
the normal course and conduct' of its- business operations,
annually purchases and receives goods valued in excess
of $50,000, directly from suppliers located outside the
State of California,
Respondent admits, and I' find that it is, an employer
engaged in commerce and in a business affecting com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act. -
Since at least 1981, the Union has been the exclusive
representative for purposes of collective bargaining of
Respondent's employees- at the Colton, California 'facili-
ty, the, only facility involved in this case. Respondent
admits and I find that the Union is a labor organization
within the meaning of'Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
As, mentioned above, Respondent produces and manu-
factures cement at its Colton, California facility. Since at
least 1981, the Union has represented Respondent's em-
ployees at Colton. The Union and Respondent were par-
ties to a collective-bargaining agreement that was effec-
tive by its-,terms from May 1, 1981, through April 30,
1984. No successor contract has been reached.
On June 20, 1984, Respondent implemented its final
contract offer unilaterally, after impasse was reached in
its negotiations with the Union. Since, June 20, 1984, Re-
spondent has been operating as if its final contract offer
had been accepted by the Union and has been treating its
unilaterally imposed offer as a collective-bargaining
agreement. Respondent has accepted and processed
grievances under the -implemented proposal in spite of
the fact, that the Union has not agreed to the contract.
The instant case arose out of the Union's request in
October 1985 for information allegedly relevant to a
grievance filed by Darryll Herndon, an employee at Re-
spondent's Colton facility. About October 9, Herndon
filed a grievance against Respondent alleging racial dis-
crimination in that he "wasn't given a chance to prove
283 NLRB No. 168
1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that [he was] qualified for the position for powderman."
On October 23, and on at least ,two :subsequent occa-
sions, the Union requested information regarding the
hours and the rate of pay being paid to the person per-
forming the - poWderman position instead of Herndon.
Herndon - had been offered the powderman position
before Respondent decided to utilize a former employee
to perform the work . The former employee was engaged
through a temporary employment service . Respondent
maintains ' the work being performed by the former em-
ployee is the same work that it offered to Herndon.
Herndon turned down the work because Respondent re-
fused to either pay him 30 cents an hour more than the
contract rate - or to give him more job - security (in the
form of a full-time position or a supervisory position).
Although I am not concerned with whether the griev-
ance has merit in order to determine the issue of whether
the rate of pay paid by Respondent to the temporary
labor service is relevant and necessary , I must examine
the underlying grievance.
Darryl] Herndon has been employed by Respondent
for approximately 12 years. In September or October
1985 , Herndon was working for Respondent as a laborer,
labor grade 1. In late September,' Respondent, learned
that its current powderman at its Colton facility, Andy
Garcia, did not have sufficient experience to qualify for a
California state blaster 's license . Respondent had only
three state licensed individuals among its employees: Do-
minic Chiaro, quarry supervisor; Joaquin Granado , assist-
ant safety supervisor; and Herndon. Chiaro determined
that neither Granado nor himself had the time to be
present with Garcia at the time blasting was done.
Therefore, Chiaro offered Herndon the opportunity to
work with Garcia on a part -time, temporary basis as a
powderman, labor grade 15.
It is undisputed that Chiaro offered Herndon powder-
man work, on a temporary basis of approximately 3 days
a week, 3 weeks a month . Chiaro explained to Herndon
that Respondent needed Herndon's state license present
at the blasting site to conform to state law and to give
Garcia the opportunity to obtain a needed year of experi-
ence for Garcia to obtain his license . Herndon rejected
Chiaro's ' offer and attempted to negotiate a better deal
for himself. Herndon wanted a full-time position as pow-
derman, a supervisory position , or a higher rate of pay.
Herndon sought 30 cents an hour above the powderman
rate on the basis that he was - overseeing the powderman.
Chiaro would not agree to Herndon 's counterproposal.
'Chiaro reported to Gary Thornberry , plant superin-
tendent, that Herndon did not accept the powderman job
on a temporary basis. Rather than force Herndon to per-
form the , job, Thornberry and Chiaro decided to offer
the work to Tony Perez , a retired employee who pos
sessed 'the necessary state license.
On October , 9, prior to the filing of Herndon's griev-
ance, Respondent notified the Union that it intended to
subcontract the powderman work because Herndon had
turned it down . The Union proposed that Respondent
give Herndon a full-time position as powderman or pay
him 30 cents per hour more than the powderman,rate, on
a part-time basis . Respondent refused to do so. Respond-
ent contended that it had recently agreed with the Union
to raise the powderman rate because that employee had
to oversee other employees and it would not again in-
crease that rate. Further , Respondent had no need for a
powderman in addition to Garcia , it only needed an em-
ployee with a license , on a part-time basis, when actual
blasting was being done.
Shortly after the Respondent-Union meeting of Octo-
ber 9 , Herndon filed his grievance alleging that he was
not given a chance to prove that he was qualified for the
position of powderman or foreman.
On October 23, Respondent and the Union met and
discussed Herndon 's grievance . The Union requested the
hours and rates of pay that Tony Perez was receiving for
performance of the powderman duties . Respondent re-
fused to provide this information . On November 13, the
Union requested Perez' hours worked and his rate of pay
so it could "thoroughly investigate and properly address
the grievance ." Respondent offered to provide Perez'
hours to demonstrate that the subcontracted work was
the same temporary, as-needed work that Herndon' had
rejected . The Union refused to accept Respondent's
offer. The company position was that Herndon was
qualified for the position of powderman , but that it
would not pay Herndon 30 cents per hour over the
agreed-on wage rate.
The next meeting was held on January 8 , 1986. At this
meeting , the Union told Respondent that its refusal to
provide the information regarding Perez was "hindering
[its] grievance procedure to address the issues." Re-
spondent offered to provide Perez' hours of work to
demonstrate that the subcontracted work was the same
work Herndon had refused , but Respondent refused to
provide the information regarding Perez' wages. At this
meeting , Respondent told the Union that Perez was
working through Manpower , Inc., an outside labor con-
tractor . The Company maintained that Perez was doing
the work that Herndon had -previously refused.
The final meeting regarding Herndon 's grievance oc-
curred on January 22,' 1986. The Union 'reiterated its re-
quest for information on Perez' wages and stated that it
would file unfair labor practice charges , based on the
Company's refusal to provide the information . Respond-
ent again offered to provide information regarding Perez'
hours, but not the wage information requested, by the
Union . Thereafter , on March 17 , the Union filed the in-
stant charge with Region 31 of the Board.
Mauricio "Max" Rttbio, president of the Union, testi-
fied that he believed that the wage rate paid Perez for
his subcontract work was essential to the Union 's deter-
mination of whether Respondent had violated the con-
tract . However, Rubio testified that Respondent violated
the implemented proposal whether Perez was paid more
or less than Herndon.' Rubio filed two grievances
' Rubio relies on the following contract language
All production and maintenance work customarily performed by
the Company in its own plants and quarries and/or mines and with
its own employees shall continue to be -performed by the Company
with its own employees except when, in the exclusive judgment of
the management, it is more efficient or economically advantageous
to contract the work or when the Company does not have the neces-
sary equipment or qualified employees available on straight time to
Continued
CALMAT, CO. 1105
against Respondent for its failure to provide the informa-
tion regarding Herndon's grievance. The first grievance
was filed on November 27, 1985, and alleged that Re-
spondent had committed an unfair labor practice by fail-
ing to provide the Union with Perez' wages so that the
Union could process Herndon's grievance. Respondent
refused to accept this grievance. Thereafter, on July 29,
1986, Rubio filed a second grievance asserting that Re-
spondent had forfeited Herndon's grievance because Re-
spondent had failed to give the Union the requested in-
formation. Respondent again refused to accept the griev-
ance on the ground that the information was not subject
to the grievance procedure.
At no time prior to the hearing did Rubio or the
Union give any reason for requesting Perez' wages other
than to process Herndon's grievance. For the first time,
during closing argument of this case, counsel for the
General Counsel and for the Union contested that the in-
formation was relevant for bargaining over the subject of
subcontracting. There is no contract between the Union
and Respondent at the present time. Finally, there is no
evidence that the Union and Respondent have engaged
in bargaining since June 1984.
B. Analysis and Conclusions
It is well settled that an employer has a statutory obli-
gation to provide a union , on request, with relevant in-
formation the union needs for the proper performance of
its duties as a collective-bargaining representative. NLRB
v. Truitt Mfg. Co., 351 U.S: 149, 152 (1956); NLRB v.
Acme Industrial Co., 385 U.S. 432, 435-436 (1967); De-
troit Edison Co. v. NLRB, 440 U.S. 301 (1979). In deter-
mining whether an employer is obligated to supply par-
ticular information, the question is only whether there is
a "probability that the desired information [is] relevant,
and that it would be of use to the union in carrying out
its statutory duties and responsibilities." NLRB v Acme
Industrial Co., supra at 437. The Supreme Court has
characterized the standard to be applied in ,determining
the union's right to information as "a broad discovery
type standard," permitting the union access to a broad
scope of information potentially useful for the purpose of
effectuating the bargaining process. NLRB v. Acme In-
dustrial, supra at 437 and fn. 6.
A union's right to relevant information is not limited
to the period during which the employer and the union
are engaged in negotiations for a collective-bargaining
agreement. The union is equally entitled to relevant in-
formation during the,contract' s terms, in order to evalu-
ate or process grievances and to take whatever other
bona fide actions are necessary to administer the collec-
tive-bargaining agreement. Electrical Workers IBEW v.
NLRB, 648 F.2d 18, 25 (D.C. Cir. 1980); J. I. Case Co. v.
NLRB, '253 F.2d 149, 153 (7th Cir. 1958). The failure of
either an employer or a union to give the other informa-
tion necessary to enable the requesting party intelligently
to evaluate its contract rights may constitute an unfair
labor practice. NLRB v.' Acme Industrial, supra at 435-
perform the work in the time required [The emphasis is in the origi-
nal and signifies a change from the expired collective-bargaining
agreement ]
436; NLRB v. Safeway Stores, 622 F.2d 425, 429 (9th Cir.
1980), cert. denied 450 U.S. 913 (1981)_ Where the
union's request deals with information pertaining to em-
ployees in the unit, which goes to the core of the em-
ployer-employee relationship, the information is "pre-
sumptively relevant." Shell Development Co., 441 F.2d
880 (9th Cir. 1971). Where the information is presump-
tively relevant, the employer has the burden of proving
the lack of relevance. Prudential Insurance Co., 412 F.2d
77 (2d Cir. 1969). "But where the request is for informa-
tion with respect to matters occurring outside the unit,
the standard is somewhat narrower . . . and relevance is
required to be somewhat more precise. . . . The obliga-
tion is not unlimited. Thus, where the information is
plainly irrelevant to any dispute there is no duty to pro-
vide it." Ohio Power Co., 216 NLRB 987, 991 (1975),
enfd. mem. 531 F.2d 1381 (6th Cir. -1976); Doubarn Sheet
Metal, 243 NLRB 821, 823 (1979). Where the requested
information deals with matters outside the bargaining
unit, the union must establish the relevancy and' necessity
of its request for information. San Diego Newspaper Guild
Local 95 v. NLRB, 548 F.2d 863 (9th Cir. 1977).
A union should not be forced to process, a grievance
without the "opportunity to evaluate the merits of the
claim." See NLRB v. Acme Industrial, supra at 438. On
the other" hand, "the bare assertion that information is
needed to process a grievance does not obligate the
party from whom, it is requested to turn it over." See De-
troit Edison Co. v. NLRB, 440 U.S. 301, 318 (1979).
NLRB V. Electrical Workers IBEW Local 497, 795 F.2d
836 (9th,Cir. 1986).
The Union asserts that the information is necessary for
processing the Herndon grievance, but that assertion
does not withstand scrutiny. Herndon was seeking to
bargain directly with. Respondent to obtain a deal better
than that provided for in the imposed proposal. Respond-
ent was under no obligation to pay Herndon a wage
higher than that agreed to-with the Union nor was it ob-
ligated to create a full-time position for Herndon. By ne-
cessity, the Union had to change the theory of Hern-
don's grievance to have a viable case.
Here, the Union contended that Respondent violated
the subcontracting clause if the wages paid to Perez
were higher than that offered to Herndon. However, Re-
spondent never justified its subcontracting on the basis of
cost, but rather on the fact that Herndon had refused the
job. The wage rate paid to Herndon appears irrelevant to
a grievance based on such a theory. Moreover, Rubio
admitted that if the wages paid to Perez were lower than
that paid to Herndon, he would still contend that the
very same subcontracting provisions were violated be-
cause Herndon was available to do the work. Respond-
ent's position, obviously, is that Herndon was not avail-
able to do the work because he had flatly refused to per-
form the very work in question. For purposes of analy-
sis, I treat the case as if the Union needs the information
to determine whether to process the grievance to arbitra-
tion.
The question then becomes whether a grievance re-
garding subcontracting is arbitrable. The contract states
Respondent may call in a subcontractor when, in the
1106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Company's "exclusive judgment," it is more efficient or
economically advantageous to do `so. Respondent con-
tends that it has the exclusive judgment to decide wheth-
er to use a subcontractor and therefore the issue of sub-
contracting is not grievable.
The implemented proposal is not a bargaining agree-
ment. The Union-has not accepted the agreement and ap-
parently has given no consideration for the arbitration
clause. Although Respondent has accepted grievances
and apparently will arbitrate disputes under the imple-
mented agreement, there appears to be no way the Union
can compel Respondent to arbitrate the issue of subcon-
tracting. The General Counsel argues that under AT&T
Technologies,2 the question is "whether the parties agreed
to submit disputes over the meaning of the language in.
question to arbitration." The answer to that question is
no. The Union never agreed to arbitrate anything be-
cause it never agreed to the `contract and Respondent
never agreed, to arbitrate over subcontracting when it
unilaterally ,placed subcontracting in its exclusive juris-
diction,
Similarly, in another context, the Board in Arizona
Portland Cement Co., 281 NLRB 304 fn. 2(1986), found
that there was no contract in existence between this same
Respondent and Union,"under which the parties are mu-
tually bound by an agreed-upon grievance-arbitration
procedure."
At the hearing, the General Counsel and Union argued
for the first time that the information was relevant to
bargain about subcontracting. At no time relevant to this
case did the Union urge-that the information was to be
used for those purposes nor is there any evidence' that
the Union is pursuing bargaining over subcontracting or
any other purpose. I,-therefore, find no violation of the
Act based on this belated argument. See Bohemia,' inc.,
272 NLRB 1128 (1984), in which the Board dismissed a
refusal-to-bargain charge based in part on the union's
failure to indicate to the employer which contract provi-
2 AT&T Technologies v. Communications Workers, 121 LRRM 3329
(1986).
sion was alleged to have been violated. Here, the Union
repeatedly sought the information for processing,a griev-
ance that was not arbitrable-a reason the employer
could reject-and never indicated a valid reason for re-
questing the information. The recent, basis urged by
counsel was not presented to the employer during the
time period-that was the subject of the instant litigation.3
For the foregoing reasons, I find that Respondent did
not violate Section 8(a)(5) and (1) of the Act, as alleged,
when it refused to furnish information regarding, the
wages paid to . Perez or Manpower for the powderman,
work.
CONCLUSIONS OF LAw
1. Respondent is an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act. -
3. Respondent did not violate Section 8(a)(5) and (1)
of the Act as alleged in the complaint.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
ORDER
It having been found and concluded that the Respond-
ent, California Portland Cement Division, Calmat Co.,
Colton, California, has not engaged in unfair labor prac-
tices, the complaint is dismissed in its entirety.
s In its posttrial brief, the Union argued for the first time that the in-
formation was relevant to a determination of whether Respondent com-
mitted an unfair, labor practice under the Act. No specific unfair labor
practice was mentioned For the reasons stated above, I reject this argu-
ment as well
4 All outstanding motions inconsistent with this recommended Order
are denied. If no exceptions are filed as provided by Sec, 102 46 of the
Board's Rules and Regulations, the findings, conclusions, and recom-
mended 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
purposes