Exxon Chemical Co.

National Labor Relations Board - Board Decisions

Sep 29, 2003

340 N.L.R.B. 357 (N.L.R.B. 2003)

EXXON CHEMICAL CO. 357
Exxon Chemical Company and Teamsters Local 877.
Case 22–CA–23546
September 29, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN
AND WALSH
On March 28, 2001, Administrative Law Judge How-
ard Edelman issued the attached decision. The Respon-
dent filed exceptions and a supporting brief. The Charg-
ing Party filed an answering brief to the Respondent’s
exceptions.1 The Respondent filed a reply brief to the
answering briefs of the Charging Party and the General
Counsel.
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 decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order.
This case which arises in the context of the winding
down of the Exxon Chemical Company, involves the Un-
ion’s request to arbitrate grievances that arose during the
life of the collective-bargaining agreement. The Respon-
dent refused to arbitrate. The primary issue, as specifi-
cally alleged in the complaint, is whether the Respondent
violated Section 8(a)(1) and (5) of the Act when it refused
to designate an arbitrator pursuant to the procedures set
forth in the collective-bargaining agreement and refused
to arbitrate the grievances. We adopt the judge’s decision
and find that the Respondent violated the Act as alleged.
The last collective-bargaining agreement between the
Respondent and the Union was effective from March 2,
1996 to June 1, 1999. It contained, inter alia, a griev-
ance-arbitration clause covering any “claim . . . that the
Company has violated an express provision of this
Agreement.” The collective-bargaining agreement pro-
vided that grievances must be presented within 30 days
after the alleged violation occurs. The agreement also
contained a provision for notice and severance pay in the
event of layoff, and the following provision entitled
“Company Benefit Plan:”

1 The General Counsel also filed an answering brief, but it was un-
timely and consequently was not forwarded to the Board for its consid-
eration.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
This Agreement does not affect the Exxon Benefit Pro-
gram (a. Thrift Plan . . .), or the Exxon Chemical Bene-
fit Program (a. Thrift Plan . . .), or the administration
thereof. This provision, however, is not a waiver of
such rights as the Union has to bargain concerning
these programs.
Around July 1996, the Respondent announced that it
would be forming a joint venture, later named Infineum.
Throughout the following 2 years, the Respondent and
the Union participated in extensive effects bargaining
related to this decision. From July 1996 though October
1998, the Union filed numerous grievances and unfair
labor practice charges relating to the formation of the
joint venture.3 On November 24, 1998, the Respondent
and the Union signed a non-Board settlement agreement,
resolving all then-pending grievances and unfair labor
practice charges.4
Infineum, formed by the joint venture, became opera-
tional on January 1, 1999.5 The last day that the unit
employees were employees of the Respondent, and the
day that they received their last paycheck from the Re-
spondent, was December 31, 1998. In its grievances
filed on January 30, the Union contends that as of that
date, the Respondent had not provided the employees
with the contractually required 6-month notice of layoff,
had failed to match a contribution to the employees’
thrift fund based upon the severance pay, and had unilat-
erally decided to transfer the Exxon thrift fund to the
Infineum thrift fund.6
On January 29, Union Trustee and Chief Spokesman
Albert DeFreece telephoned the Respondent’s labor rela-
tions manager, William Goodhart, to inform him that the
Union was going to file three grievances concerning these
matters. Goodhart responded to DeFreece by saying,
“send me the grievances and I’ll take a look at them.”
The Union formally filed the three grievances by letter
3 The judge found that, at no time during effects bargaining and
grievance processing did the parties discuss the possibility of terminat-
ing their bargaining agreement or contractual grievance-arbitration
procedures.
4 Par. 6 of the parties’ settlement agreement states:
The Union agrees to withdraw with prejudice all pending Unfair La-
bor Practice charges and grievances relating to the formation of
INFINEUM (as set forth in the attached list, which the Union certifies
is a complete accounting of all outstanding claims relating to the for-
mation of INFINEUM initiated by the Union as of this date). The Un-
ion further agrees not to initiate or reinstitute these or substantially
similar claims against Exxon in any forum whatsoever.
5 All dates hereafter are 1999 unless otherwise indicated.
6 The transfer to the Infineum thrift fund was implemented in March
1999.
340 NLRB No. 51
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 358
dated January 30,7 which specifically asked for a response
to the grievances. The Respondent did not respond.
On March 26, DeFreece sent another letter to Good-
hart, restating the three grievances and requesting that the
Respondent designate a contact with whom the Union
could communicate to facilitate the selection of arbitra-
tors and the scheduling of hearings. By letter dated April
29 to DeFreece, Goodhart asserted for the first time,
without explanation, that all three grievances were un-
timely, notwithstanding that the Union presented its
grievances within 30 days, as required by the collective-
bargaining agreement. In addition, Goodhart claimed
that one of the grievances was in violation of the settle-
ment agreement and that the Union had waived its right
to make the claims contained in the other two grievances.
Goodhart also failed to respond to the Union’s request
that the Respondent designate a contact person for the
selection of arbitrators.
By letters to Goodhart, dated May 12, DeFreece again
requested arbitration of the grievances and requested that
Goodhart make the usual arrangements to select arbitra-
tors. He asked Goodhart to contact him regarding these
matters. Goodhart did not respond.
Lacking a response from the Respondent, on June 16
the Union submitted the three grievances to the Ameri-
can Arbitration Association (AAA) for arbitration. On
July 2, the Respondent sent a letter to the AAA contend-
ing that the grievances were not arbitrable. It further
asserted that the parties had a contractual process for
selecting arbitrators. On August 2, the AAA notified the
parties that it lacked authority to administer arbitrations
between the parties.
On August 2, the Union made its final written request
that the Respondent designate the arbitrators and submit
the grievances to arbitration. By letter dated August 10,
the Respondent restated, but did not further explain, its
position that the grievances were not arbitrable. The Un-
ion filed this unfair labor practice charge on September 1.
Analysis
The judge found that the Respondent violated Section
8(a)(5) of the Act by refusing to designate an arbitrator
pursuant to the procedures set forth in the collective-
bargaining agreement and by refusing to arbitrate the
grievances. We agree because the Respondent’s conduct
amounted to a complete repudiation of the contractual
grievance-arbitration provision.

7 (a) Grievance C-001-99—Respondent failed to provide the em-
ployees with the requisite 6 months of notice of layoff.
(b) Grievance C-002-99—Respondent failed to match the thrift fund
contribution on the severance pay received by the employees.
(c) Grievance C-003-99—Respondent unilaterally decided to trans-
fer the Exxon thrift fund to the Infineum thrift fund.
The Respondent asserts procedural challenges to the
judge’s decision. The Respondent contends that the
Board lacks jurisdiction over it and that the charge is
barred by the statute of limitations established in Section
10(b) of the Act. Relying on the expired collective-
bargaining agreement, discredited evidence regarding
when the Respondent notified the Union of its decision
not to arbitrate, and the parties’ 1998 agreement settling
previously filed grievances, the Respondent contends, as
it did before the judge, that the instant grievances are “un-
timely.”8 Further, the Respondent contends that the judge
violated its due process rights by refusing to permit the
introduction of evidence related to grievances settled in
1998. As for the merits, the Respondent admits that it did
not agree to the Union’s request to select an arbitrator and
proceed to arbitration, but it characterizes its refusal as a
refusal to arbitrate a class of grievances. Citing Velan
Valve Corp., 316 NLRB 1273, 1274 (1995), the Respon-
dent contends that its refusal to arbitrate is thus not
unlawful.
We find no merit in the Respondent’s challenge to our
jurisdiction. Further, we find no merit in the Respon-
dent’s remaining exceptions.
Jurisdiction
The Respondent has excepted to the judge’s finding
that the Respondent was engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. On
careful examination of the judge’s decision and the re-
cord, we are satisfied that the Respondent’s contention is
without merit. Therefore, we assert jurisdiction over the
Respondent, as we have done in prior decisions.9
Section 10(b)
As noted, the Respondent contends that the complaint
in this case is barred by Section 10(b) of the Act. The
Respondent alleges, without record support, that it noti-
fied the Union, in a January 29 telephone conversation,
that it would not designate an arbitrator and arbitrate the
grievances. The charge was filed on September 1. The
record shows that the Respondent first informed the Un-
ion that it was not willing to select arbitrators or arbitrate
the grievances on April 29, when it claimed that the
grievances were untimely. This notification occurred
within 6 months of the filing date of the charge. Accord-
8 As shown, the formal filing of the grievances on January 30 (pre-
ceded by a telephonic notification on January 29) was within the 30-
day contractual deadline. The Respondent has not argued to the con-
trary.
9 Exxon Co. USA, 321 NLRB 896 (1996); Exxon Research & Engi-
neering Co., 317 NLRB 675 (1995); Exxon Co. USA, 315 NLRB 952
(1994); Exxon Co. USA, 313 NLRB 1193 (1994); and Exxon Chemical
Co., 307 NLRB 1254 (1992).
EXXON CHEMICAL CO. 359
ingly, we adopt the judge’s finding that the complaint is
not barred by Section 10(b) of the Act.
Section 8(a)(1) and (5)
The judge found, and we agree, that the Respondent
violated Section 8(a)(1) and (5) of the Act by refusing to
select an arbitrator and refusing to proceed to arbitration
over grievances filed by the Union and covered by the
grievance-arbitration provisions of the collective-
bargaining agreement.
An employer’s refusal to designate an arbitrator and
arbitrate grievances, pursuant to a collective-bargaining
agreement, violates Section 8(a)(1) and (5) of the Act, if
the employer’s conduct amounts to a unilateral modifica-
tion or wholesale repudiation of the collective-bargaining
agreement.10 We agree with the judge, under the circum-
stances of this case, that by refusing to arbitrate the Un-
ion’s grievances, the Respondent has repudiated its bar-
gaining agreement with the Union.
It is undisputed that a bargaining agreement was in ef-
fect on December 31, 1998, the Respondent’s last day of
operations. As shown, that agreement contained a griev-
ance-arbitration provision and provisions governing lay-
offs, severance pay, and employee benefit plans, includ-
ing the thrift fund.
The Union’s grievances alleged the Respondent’s fail-
ure to honor contractual severance pay and notice-of-
layoff requirements, and its unilateral decision to transfer
employee funds from the Exxon thrift plan to the In-
fineum thrift fund. The Respondent’s alleged conduct
was evident to the Union after employees received their
final paychecks on December 31, 1998. These griev-
ances implicated a range of contractual issues, not a nar-
row class of issues, and constituted the totality of collec-
tive-bargaining issues pending between the parties.
Clearly, as the judge found, the grievances arose under
the bargaining agreement and are covered by the griev-
ance-arbitration provision. Thus, the Respondent was
under an obligation to submit these grievances to arbitra-
tion.11 It failed to satisfy its obligation. Under these

10 Beverly Farm Foundation, 323 NLRB 787, 796 (1997); McDaniel
Ford, 322 NLRB 956, 965 (1997); Richmond Convalescent Hospital,
313 NLRB 1247, 1259 (1994); 3 State Contractors, 306 NLRB 711,
715 (1992); Indiana & Michigan Electric Co., 284 NLRB 53, 59–60
(1987); Paramount Potato Chip Co., 252 NLRB 794, 796–797 (1980).
11 Nolde Brothers v. Bakery Workers, 430 U.S. 243 (1977); Indiana
& Michigan Electric Co., supra at 54–55, 59–60; Nicholas County
Health Care Center, 331 NLRB 970, 989 (2000); CBC Industries, 311
NLRB 123, 128 (1993). See generally AT&T Technologies Inc. v.
Communication Workers of America, 475 U.S. 643, 650 (1986), quot-
ing Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574,
582–583 (1960) (presumption of arbitrability exists where bargaining
agreement contains an arbitration clause, and only the most forceful
evidence of exclusion will overcome the presumption).
circumstances, by refusing to arbitrate any of the griev-
ances that had arisen during the life of the bargaining
agreement, the Respondent unilaterally abandoned or
repudiated the contractual grievance-arbitration proce-
dure, thereby refusing to bargain with the Union in viola-
tion of Section 8(a)(5).12
We find this case distinguishable from Velan Valve
Corp., 316 NLRB 1273 (1995), and similar cases, cited
by the Respondent, where the Board found no violation
of Section 8(a)(1) and (5). In those cases, the employer’s
refusal to select an arbitrator and arbitrate grievances
occurred in the context of an ongoing bargaining rela-
tionship and was limited to a particular grievance or
“narrow class” of grievances. Here, in contrast, the Re-
spondent refused to arbitrate three grievances, each con-
cerning a different provision of the bargaining agreement
and together representing the universe of bargaining is-
sues still pending between the parties at the end of their
relationship. Additionally, in Velan Valve Corp., supra
at 1274, the Board emphasized that the employer, at the
time of its refusal to arbitrate grievances, reassured the
union of its commitment to the collective-bargaining
agreement and to good-faith dealing with the union. The
Respondent here provided no such assurances. Rather, it
repeatedly ignored the Union’s requests to respond to the
Union’s arbitration requests.
Once the Board has determined that the parties are ob-
ligated to submit the subject matter of a dispute to arbi-
tration, as we have here, matters of contract interpreta-
tion and procedural questions which grow out of the dis-
pute and bear on its final disposition must be left to the
arbitrator.13 The remainder of the Respondent’s excep-
tions raises such questions. They are not dispositive of
the 8(a)(5) allegations of the complaint, i.e., the refusal
to select an arbitrator and proceed to arbitration.
First, the Respondent asserts that the unfair labor prac-
tice charge, to the extent that it seeks to compel arbitra-
12 Indiana & Michigan Electric Co., supra at 54. Here, as in Indiana
& Michigan, the parties’ grievance-arbitration provision contained a
reservation of the company’s right to participate in a grievance-
arbitration without waiving its right to “take the position that a claim is
not a grievance.” Thus, the Respondent was free to participate in the
arbitration and yet adhere to its initial position regarding the merits of
the grievances. Therefore, the Respondent could have selected arbitra-
tors and proceeded to arbitration without “surrender[ing] to an entity
with the authority to issue a final and binding decision.” It could have
adhered, before the arbitrator, to its position that the grievances were
not arbitrable “if it remain[ed] unconvinced by the facts and arguments
brought out in the course of the grievance procedure.” Id., citing
Newspaper Printing Corp., 221 NLRB 811, 820 (1975).
13 John Wiley & Sons v. Livingston, 376 U.S. 543, 557 (1964);
Steelworkers v. Warrior & Gulf Navigation Co., supra; Steelworkers v.
American Mfg. Co., 363 U.S. 363 (1960) (only the arbitrator may ex-
amine potential merits of claims underlying an arbitrable grievance).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 360
tion of union grievances regarding notice of layoff14 and
severance pay,15 was filed in violation of the parties’
November 1998 settlement agreement. In essence, the
Respondent contends that, by entering into an agreement
settling grievances and unfair labor practices arising in
the aftermath of the Respondent’s announcement of a
joint venture and during effects bargaining, the Union
waived its right to file these two subsequent grievances
and is estopped from raising them now. As the judge
correctly explained, issues of waiver and estoppel are
procedural and must be determined by the arbitrator.16
The Respondent also contends that the benefit funds
provision of the parties’ bargaining agreement expressly
excludes from arbitration the Union’s grievance regard-
ing the Respondent’s transfer of the thrift fund ac-
counts.17 Again, this is a contract-interpretation issue to
be determined by the arbitrator.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Exxon
Chemical Company, Newark, New Jersey, its officers,
agents, successors, assigns, and representatives, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
“(a) Failing to comply with the collective-bargaining
agreement with the Union by refusing to bring to arbitra-
tion the grievances filed by the Union.”
2. Substitute the following for paragraph 1(b).

14 Grievance C-001-99. The Respondent excepts to the judge’s
“finding” that the Respondent “gave improper notice of layoff.”
Whether or not the Respondent did so is a question raised by the Un-
ion’s grievance and will be determined by the arbitrator. To the extent
that the judge intended this statement as a finding of fact, we do not
rely on the statement.
15 Grievance C-002-99.
16 The Respondent excepts to the judge’s refusal to allow it to intro-
duce evidence relating to the 1996-October 1998 grievances and unfair
labor practice charges that were settled in November 1998. The Re-
spondent attempted to adduce evidence related, inter alia, to the timeli-
ness and merits of those earlier, settled grievances to demonstrate that
the current grievances were encompassed within the November 1998
settlement. The Respondent contends that the judge thus denied its due
process right to a full and fair hearing. We find no merit in these excep-
tions. The effect, if any, of the 1998 settlement agreement is a determi-
nation to be made by the arbitrator. As we have found, the grievances
arose under and are covered by the parties’ bargaining agreement and,
accordingly, must be processed to arbitration. The judge properly lim-
ited the scope of the evidence in this case to matters raised in the unfair
labor practice complaint, i.e., the Respondent’s failure to arbitrate the
instant grievances. The judge thus permitted the Respondent to cross-
examine the General Counsel’s witness regarding the timeliness of this
unfair labor practice charge under Sec. 10(b) of the Act.
17 Grievance C-003-99.
“(b) In any like or related manner, interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.”
3. Substitute the following for paragraph 2(b).
“(b) Mail, at its own expense, a copy of the attached
notice marked “Appendix”18 to all former employees
who were laid off as a result of the Respondent’s cessa-
tion of operations. Such notice shall be mailed to the last
known address of each employee. Copies of the notice,
on forms provided by the Regional Director or Region
22, after being signed by the Respondent’s authorized
representative, shall be mailed within 14 days after ser-
vice by the Region.”
4. Substitute the following notice for that of the admin-
istrative law judge.

CHAIRMAN BATTISTA, dissenting in part.
I do not agree that Respondent’s refusal to designate
an arbitrator and to proceed to arbitration on three spe-
cific grievances violated Section 8(a)(5) of the Act.
Section 8(a)(5) and 8(d) proscribe an untimely “termi-
nation or modification” of a contract. It does not pro-
scribe a mere breach of contract.1 Thus, if an employer
repudiates an entire contract, or clauses of a contract, the
employer has violated the Act. For example, if an em-
ployer takes the position that it will no longer abide by the
arbitration provisions of a contract, that conduct would be
unlawful under Section 8(a)(5)and 8(d) of the Act. By
contrast, if an employer does not take this position, but
rather contends that specific grievances are not arbitrable,
that conduct is not a termination or modification of the
contract.2 It is only a breach of contract (assuming that
the employer’s contractual contention has no merit).
The instant case falls within the latter category. Re-
spondent has not abrogated the arbitration provisions of
the contract. Rather, Respondent has refused to arbitrate
three grievances. Respondent argues that the specific
grievances were not arbitrable because: (1) they were
filed after the expiration of the contract; (2) they were
subsumed under a prior settlement; (3) the thrift plan and
the grievance related thereto were not covered by the
expired contract. I do not say that these contractual ar-
guments are meritorious. Rather, I say only that they are
specific challenges to three grievances, rather than a re-
18 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
1 NCR Corp., 271 NLRB 1212 (1984); Thermo Electric Corp., 287
NLRB 820 (1987).
2 Velan Valve Corp., 316 NLRB 1273 (1995); Indiana & Michigan
Electric Co., 284 NLRB 53 (1987); and Mid-American Milling Co., 282
NLRB 926 (1987).
EXXON CHEMICAL CO. 361
pudiation of grievance-arbitration provisions of a con-
tract. Accordingly, under the cases cited supra, the fore-
going matters are contract interpretation issues for a
court to resolve under Section 301, and/or for an arbitra-
tor. They are not matters for the Board under Section
8(a)(5). Thus, they should have been taken to arbitration,
rather than brought as charges before the National Labor
Relations Board.
My colleagues say that the three grievances constituted
“the universe of bargaining issues still pending between
the parties.” Assuming that this is so, it does not change
the result. That is, the fact that all other matters have
been resolved by the parties does not transform the re-
maining controversy as to the three grievances into a
wholesale repudiation of the arbitration provisions of the
contract.
Finally, my colleagues say that the Respondent has re-
pudiated the agreement. In truth, the Respondent has
simply taken the position that three grievances are not
arbitrable.
APPENDIX

NOTICE TO EMPLOYEES
MAILED 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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail to comply with the collective-
bargaining agreement with the Union by refusing to
bring to arbitration the grievances filed by the Union.
WE WILL NOT in any like or related manner, interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL submit the grievances filed by the Union,
described herein to arbitration and select arbitrators pur-
suant to the terms of the parties’ collective-bargaining
agreement.

EXXON CHEMICAL COMPANY

Brian Monroe, Esq. and Richard E. Fox, Esq., for the General
Counsel.
Charles Beck, Esq., for the Respondent.
David Grossman, Esq. (Schneider, Goldberger, Cohen, Finn,
Solomon, Ceder & Montalbano), for the Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This
case was tried before me on November 14, 2000, and January
22, 2001, at Newark, New Jersey.
A complaint issued on January 13, 2000, alleging that Exxon
Chemical Company (Respondent) violated Section 8(a)(1) and
(5) of the Act by refusing to arbitrate grievances filed by Local
877 International Brotherhood of Teamsters AFL–CIO (the
Union) with whom it had a collective-bargaining agreement.
Based on the entire record in this case, including my obser-
vation of the demeanor of the witnesses and a full consideration
of briefs filed by counsel for the General Counsel, counsel for
the Union, and counsel for Respondent, I make the following
FINDINGS OF FACT
Respondent is a corporation with an office and place of busi-
ness in Linden, New Jersey, where it is engaged in the manu-
facture, sale, and distribution of chemical products. In the
normal course of its usual business operations, Respondent sells
and ships from its New Jersey facility goods valued in excess of
$50,000 directly to points outside the State of New Jersey. It is
admitted that Respondent is engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
It is also admitted that the Union is a labor organization
within the meaning or Section 2(5) of the Act.
The Union and Respondent were parties to a long series of
collective-bargaining agreements covering a unit of:

All operating, mechanical and maintenance employees in the
Bayway Chemical Plant of the Company, excluding office
and plant clerical employees, watchpersons, guards, profes-
sional employees, technical employees, metal inspectors, gas
lasters, measurement persons, and supervisors as defined in
the National Labor Relations Act.

The last agreement was effective March 2, 1996, and expired
June 1, 1999. The collective-bargaining agreement contained a
grievance-arbitration provision.
Pursuant to the arbitration provision, the board of arbitration
was to consist of three members, one chosen by the Union, one
chosen by Respondent, and a third by an impartial arbitrator.
Pursuant to article 21, section 21–4 of the arbitration provision,
the parties agreed to a panel of 10 third-party neutral arbitra-
tors. When a grievance was submitted to arbitration, Respon-
dent and the Union were to designate a third-party neutral arbi-
trator from the panel of arbitrators.
On or about July 12, 1996, Respondent made an announce-
ment concerning the formation of a joint venture with Shell Oil,
an international oil and gasoline corporation.
The mechanical department head and plant manager of Re-
spondent went around in the plant to discuss the joint venture
with the unit employees. The mechanics and process techni-
cians were told that Respondent’s operation was going to be
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 362
sold and there would be a new company and that Respondent’s
involvement would come to an end.
After this announcement, the Union requested information
from Respondent concerning the joint venture and also re-
quested effects bargaining.
During the period of July 12, 1996, through October 1998,
the Union filed numerous unfair labor practice charges against
Respondent and filed numerous grievances, all relating to the
formation of the joint venture. A settlement agreement was
eventually signed on November 24, 1998. However, that set-
tlement only pertained to the outstanding grievances and unfair
labor practice charges existing at that time.
There was no discussion during the effects bargaining with
Respondent about terminating the grievance and arbitration
procedures in the present collective-bargaining agreement. No
document was generated as a result of the effects bargaining
that terminated the 1996–1999 collective-bargaining agreement
between Local 877 and Respondent on December 31, 1998.
The last date that Respondent operated at its Linden, New
Jersey facility was December 31, 1998. On December 31,
1998, the employees received their last paychecks from Re-
spondent.
On December 31, 1998, the employees noticed that Respon-
dent had failed to match a contractually required 6-percent
contribution for the employees’ “Thrift fund” based on their
severance pay, which was given to them on December 31,
1998.
Also, on December 31, 1998, Respondent unilaterally trans-
ferred the Exxon thrift fund to the Infineum thrift fund.
Article 5 of the Respondents collective-bargaining agree-
ment with the Union specifically requires that the Union has a
right to bargain concerning Respondent’s programs, including
the “Thrift Plan.”
Article 33, paragraph 33–34 of the parties agreement, which
talks about the notice required to be given in the case of a lay-
off requires that when an employee is to be laid off, the em-
ployees will receive 6 months’ notice. On December 31, 1998,
the Union noticed that Respondent had failed to give the em-
ployees the 6-month notice prior to their layoff and failed to
pay them due to their failure to give the proper notice.
Albert DeFreece, a union trustee and chief spokesman for the
Union with regard to Respondent testified it was normal for the
Union to file grievances regarding perceived violations of col-
lective-bargaining agreement.
DeFreece also testified that while the issue of the thrift con-
tribution on the severance was discussed during the effects
bargaining, described above, there was no discussion concern-
ing the notice of layoff, or the transfer of the thrift plan to In-
fineum.
On or about January 29, 1999, DeFreece had a telephone
conversation with William Goodhart, the labor relations man-
ager for Respondent, putting him on notice that the Union was
going to file three grievances concerning the above-referenced
perceived violations of the collective-bargaining agreement.
Goodhart told DeFreece to send them in and he would look at
them. Goodhart did not question the timeliness of the griev-
ances.
Goodhart testified that he told DeFreece that he would not
hear the grievances, and did not agree to accept them. He also
testified that he did not agree to arbitrate these three grievances.
Based on a comparison of demeanor and the written commu-
nications between the Union and Respondent set forth below, I
credit DeFreece’s testimony.
By letter dated January 30, 1999, DeFreece sent Goodhart a
letter with the three grievances arising under the collective-
bargaining agreement. The letter sets forth as follows:

Pursuant to our phone conversation on January, 1999,
this letter will serve to document the content of that con-
versation of which Local 877 initialized grievances to the
following three (3) occurrences:
First, Teamster’s Local 877 (the Union) is grieving the
action of Exxon Chemical Company (the Company) for its
failure to match the severance pay amount within the pay
period that was received on December 31, 1998. Also, the
severance amount that was placed in escrow accounts of
those employees who resigned or retired were not
matched.
Second, the Union is grieving the Company’s pro-
posed decision to transfer Exxon Thrift fund accounts of
those former Exxon employees who have accepted em-
ployment or are employed with INFINEUM USA Inc.
Finally, the Union is grieving the Company’s applica-
tion of Article 33 specific to six months Notice of Layoff.
The Company gave improper notice; not in accordance to
the contract.
Please respond promptly in order to facilitate the
proper process for settlement of these grievances. Thank
you for your attention to these matters.

Goodhart did not respond to this letter.
In view of Respondent’s failure to respond and to the Un-
ion’s January 30 letter, DeFreece sent Goodhart a second letter
dated March 26. This letter restated the three grievances and
requested Respondent contract the Union for the purpose of
selecting arbitrators.
Respondent, by a letter from Goodhart dated April 29, 1999,
to the Union simply alleged that the grievances were untimely.
The letter did not indicate Respondent’s position that they did
not consider the three grievances to be grievances covered un-
der the collective-bargaining agreement, nor did it indicate the
Respondent would not arbitrate the three grievances.
By letter dated May 12, 1999, DeFreece sent to Goodhart
three letters indicating that the Union was formally requesting
arbitration concerning the three grievances, and was requesting
Respondent to meet to designate an arbitrator from the perma-
nent panel of arbitrators pursuant to the arbitration provision of
their agreement. Respondent has failed and refused to meet
with the Union for the purpose of designating an arbitrator for
the three grievances. Respondent did not, advise the Union as
to why it was refusing to meet and designate an arbitrator.
Counsel for the Union then submitted the three above-
described grievances to arbitration pursuant to the rules of the
American Arbitration Association.
It was only after the submission of the three grievances to
arbitration pursuant to the rules of the American Arbitration
EXXON CHEMICAL CO. 363
Association that Respondent indicated in letters dated July 2, 6,
and 26, 1999, that it was their position that these grievances
were not arbitrable. Respondent also indicated to the American
Arbitration Association that pursuant to the arbitration provi-
sion of the collective-bargaining agreement there was a method
by which an arbitrator could be designated, and that the Ameri-
can Arbitration Association did not have jurisdiction over these
grievances.
By letter dated August 2, 1999, counsel for the Union wrote
to Respondent to request the designation of an arbitrator from
the panel of arbitrators per the arbitration provision of the col-
lective-bargaining agreement. It was Respondent’s position
from that point, to date, that the grievances were not arbitrable.
By a letter dated August 10, 1999, Respondent refused again to
designate an arbitrator. Respondent has at all times thereafter
refused to designate an arbitrator from the panel of arbitrators
per the arbitration provision of the collective-bargaining
agreement. The Union thereafter filed the instant unfair labor
practice charges.
ANALYSIS
Respondent’s defense to allegations of the instant complaint
are essentially that the grievances were discussed and settled
during the effects bargaining, described above, and thus the
grievances are without merit, not timely, and that the Union had
waived its right to arbitrate.
I conclude that Respondent’s reasons for refusing to arbitrate
the grievances establish Respondent’s bad faith and improper
repudiation of the collective-bargaining agreement because
these issues regarding the merits of a grievance, the timeliness
of the filing of a grievance, and argument of waiver and/or
estoppel, are issues to be resolved by an arbitrator, and not by
the Board.
There are numerous Board cases, which are analogous to this
case, which establish that an employer’s refusal to designate an
arbitrator pursuant to the procedures set forth in a collective-
bargaining agreement, and its refusal to arbitrate the underlying
grievances, constitutes a violation of Section 8(a) (1) and (5) of
the Act.
In Beverly Farm Foundation, Inc., 323 NLRB 787, 796
(1997), the employer rejected the union’s request to submit
grievances to mediation as the final step in the grievance pro-
cedure. The Board found by refusing to proceed to mediation,
the employer had altered a condition of employment, and
thereby violated Section 8(a)(1) and (5). Id.
In McDaniel Ford, 322 NLRB 956 (1997), the collective-
bargaining agreement between the parties contained a grievance
and arbitration clause, and if a grievance could not be resolved,
it would be submitted to an arbitrator selected by mutual con-
sent. Id. at 958. The union submitted a grievance and sug-
gested that their parties use a permanent arbitrator used by the
Automobile Dealers Industrial Association or an arbitrator des-
ignated by the American Arbitration Association, the New
York State Employment Relations Board, the New Jersey State
Board of Mediation of the Connecticut Board of Mediation and
Conciliation. Id. at 960–961. The company refused to utilize
any of the above agencies, and instead insisted that the arbitra-
tor be one of several named attorneys. Id.
The Board found that the Employer’s actions could reasona-
bly be viewed as an attempt to avoid its obligation to select an
arbitrator and to impede the arbitration process. Id. at 965. The
Board found that the Employer had violated Section 8(a)(1) and
(5) of the Act. Id., citing, Richmond Convalescent Hospital,
313 NLRB 1247, 1258–1259 (1994); Independent Stove Co.,
248 NLRB 219, 227 (1980); and South Florida Hotel & Motel
Assn., 245 NLRB 561, 609–609 (1979).
In the instant case, the facts establish that after Goodhart’s
letter dated April 29, 1999, in which he advised DeFreece that
the grievances were untimely, DeFreece sent letters dated May
21, 1999, requesting arbitration, and requesting the Company
meet to designate an arbitrator from the panel of arbitrators.
The Union then attempted to obtain the designation of an arbi-
trator from the American Arbitration Association (AAA). It
was then, by letter dated July 2, 1999, Respondent indicated its
position that the grievances were not arbitrable and thwarted
the union efforts to obtain the designation of an arbitrator by
the AAA. By letter dated August 2, 1999, counsel for the Un-
ion offered to have appointed arbitrators from the panel to ad-
judicate the grievances per the arbitration provision. By letter
dated August 10, 1999, Respondent refused again to designate
an arbitrator.
The issues raised by the grievances are clearly covered by
the grievance-arbitration provisions under the collective-
bargaining agreement. There is no exclusion from arbitration.
I conclude and find that Respondent has engaged in bad-faith
bargaining and has repudiated the terms of the grievance–
arbitration provisions of its collective-bargaining agreement in
violation of Section 8(a)(1) and (5) by its refusal to designate
an arbitrator and by its refusal to arbitrate the grievances filed.
It is clear that the issues raised by the union grievances were
covered by the terms of the grievance-arbitration provisions of
the last collective-bargaining agreement between the parties
which by its terms expired on June 1, 1999.
Respondent ceased operations at its New Jersey facility on
December 31, 1998. However, during their effects bargaining,
the Union and Respondent did not enter into an agreement,
which terminated the 1996–1999 collective-bargaining agree-
ment. The grievances filed related to and arose out of that col-
lective-bargaining agreement, and matured on December 31,
1998. The fact that the grievances were filed after the Com-
pany ceased operations does not end the Company’s obligation
to arbitrate the grievances nor does it make the filing untimely,
as contended by Respondent. See Nolde Bros. v. Bakery Work-
ers Local 358, 430 U.S. 243 (1977): Richmond Convalescent
Hospital, supra, 313 NLRB at 1259.
Respondent contends that the grievances were discussed and
resolved during the effects bargaining described above. To
establish this contention Respondent placed in the rejected
exhibit file 40 voluminous exhibits. Respondent contends that
I, and the Board, should consider and determine the merits of
the Union’s grievances. However, the Board and the courts
have consistently held that this is not an issue to be decided by
the Board. Lukens Steel Co. v. Steelworkers, 989 F.2d. 668,
672 (3d Cir. 1992); E.M. Diagnostic System Inc. v. Teamsters
Local 169, 812 F. 2d 91, 94 (3d Cir. 1987); Ladies Garment
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 364
Workers v. Ashland Industries, 488 F.2d 641 (5th Cir.), cert.
denied 419 U.S. 840 (1974).
Respondent also contends that the grievances were not
timely filed under the terms of their collective-bargaining
agreement and that the Union waived its right to file such
grievances and should be estopped therefrom.
The issue of timeliness in the Union submitting a grievance
is a procedural question reserved for the arbitrator. Arkla Inc.
Entex Division v. Oil Workers Local 4-227, 147 LRRM 2607,
2610 (S.D. Tex 1993) (citation omitted).
Issues of waiver and estoppel are also determined by the ar-
bitrator. Bakery Workers v. National Biscuit Co., 378 F.2d 918
(3d Cir. 1967).
Respondent also contends that the instant unfair labor prac-
tice charge, which led to the issuance of this complaint was not
timely filed within the provisions of Section 10(b) of the Act.
The 1947 Taft-Hartley amendments Section 10(b) state that
the Board shall not issue a complaint “based upon any unfair
labor practice occurring more than six months prior to the filing
of the charge with the Board.”
In Leach Corp., 312 NLRB 990 (1993), enfd. 54 F.3d 802
(D.C. Cir. 1995), the Board reaffirmed its position that the stat-
ute of limitations does not begin to run until “a party has clear
and unequivocal notice of a violation of the Act.” The issue in
Leach was whether the 6-month limitations period commenced
when the employer gave the union advance notice of its intent
not to apply the parties’ collective-bargaining agreement to its
new facility. The Board determined that, for purposes of the
union’s charge alleging that the employer had unlawfully repu-
diated the collective-bargaining agreement after gradually
transferring operations from its unionized facility to its nonun-
ionized facility, the limitations period began to run when the
relocation of the operations was “substantially completed”
rather than when advance notice was given to the union by the
employer or when the first employees began working at the
nonunion plant.
The first notice the Union had that Respondent objected to
the grievances was by its letter dated April 29, 1999.
The first time Respondent asserted that the grievances were
not arbitrable was by letter dated July 2, 1999.
The unfair labor practice charge was filed August 31, 1999,
well within the 6-month period from the April 29, 1999 letter. I
conclude these charges were filed within the 10(b) period.
CONCLUSIONS OF LAW
1. Exxon Chemical Company is an employer engaged in
commerce within the meaning of the Section 2(2), (6), and (7)
of the Act.
2. Local 877, International Brotherhood of Teamsters is a la-
bor organization within the meaning of Section 2(5) of the Act.
3. Respondent and the Union were at all times material, par-
ties to a collective-bargaining agreement covering the following
unit of employees:

All operating, mechanical and maintenance employees in the
Bayway Chemical Plant of the Company, excluding office
and plant clerical employees, watchpersons, guards, profes-
sional employees, technical employees, metal inspectors, gas
lasters, measurement persons, and supervisors as defined in
the National Labor Relations Act.

4. By refusing to select an arbitrator and refusing to proceed
to arbitration concerning grievances filed by the Union and
covered by the grievances-arbitration provisions of their collec-
tive-bargaining agreement. Respondent has violated Section
8(a)(1) and (5) of the Act.
REMEDY
Having found Respondent violated Section 8(a)(1) and (5) of
the Act, I shall recommend it be ordered to cease and desist
therefrom and to take certain affirmative action to effectuate the
policies of the Act.
On these findings of fact and conclusions of law and the en-
tire record, I shall issue the following recommended1
ORDER
The Respondent, Exxon Chemical Company, Newark, New
Jersey, it officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to follow the procedures required in the collec-
tive bargaining with the Union, to bring arbitration, the griev-
ances filed by the Union.
(b) In any like or related matter interfering, restraining, or
coercing its employees in the exercise of the rights guaranteed
them by the Section 7 of the Act.
2. Take the following action necessary to effectuate the poli-
cies of the Act.
(a) Submit the grievances filed by the Union, described
herein to arbitration and select arbitrators pursuant to the terms
of the parties collective-bargaining agreement, described herein
(b) Within 14 days after service by the Region, post at its
Linden, New Jersey facility, and other appropriate facilities
copies of the attached notice marked “Appendix.”2 Copies of the
notice, on forms provided by the Regional Director for Region
22, after being signed by the Respondent’s authorized represen-
tative, shall be posted by the Respondent immediately upon
receipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to are customarily
posted. Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the
Respondent at any time since July 2, 1999.

1 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 objections to them shall be deemed waived for all pur-
poses.
2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
EXXON CHEMICAL CO. 365
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.