Gifford-Hill & Co.

National Labor Relations Board - Board Decisions

Sep 10, 1987

285 N.L.R.B. 746 (N.L.R.B. 1987)

746 GIFFORD-HILL & CO
Gifford-Hill & Company and Cement, Lime,
Gypsum, and Allied Workers Division of Inter-
national Brotherhood of Boilermakers, Iron
Ship Builders , Blacksmiths , Forgers and Help-
ers, Local Lodge D405 , AFL-CIO. Case 28-
CA-8072
10 September 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 26 November 1985 Administrative Law
Judge Russell L. Stevens issued the attached deci-
sion. The General Counsel and Charging Party
filed exceptions and supporting briefs; the Re-
spondent filed cross-exceptions, a supporting brief,
and an answering brief to the exceptions of the
General Counsel and Charging Party; the General
Counsel filed an answering brief and the Charging
Party filed a memorandum in response to the Re-
spondent's cross-exceptions.
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 only to the extent consistent this Deci-
sion and Order, and to adopt the recommended
Order.
The judge found that the Respondent did not
violate Section 8(a)(5) and (1) of the Act by refus-
ing to arbitrate certain grievances based on events
arising after the 30 April 1984 expiration date of its
most recent collective-bargaining agreement. We
agree that the Respondent's conduct was not un-
lawful, but we do so for the reasons set forth
below.
In Indiana & Michigan Electric Co., 284 NLRB
52 (1987), which issued after the judge's decision,
we addressed the issue presented here concerning
whether a postexpiration refusal to arbitrate griev-
ances violates Section 8(a)(5). A focal point of our
analysis was the identification in Nolde Bros. v.
Bakery & Confectionery Workers Local 358, 430 U.S.
243 (1977), of a presumptive postexpiration duty to
arbitrate grievances "arising under" the expired
contract. We found that the refusal to arbitrate in
Indiana & Michigan constituted "an unlawful un-
qualified abandonment because it encompassed not
only grievances for which there may have been no
postexpiration obligation to arbitrate under Nolde,
but also grievances arbitrable under Nolde."2 We
emphasized that it was the employer's general in-
tention to refuse to arbitrate any grievances during
the contractual hiatus that constituted the unlawful
conduct. Accordingly, its "entire course of conduct
amounted to a wholesale repudiation of its contrac-
tual obligation to arbitrate."3
By contrast, the General Counsel has not proven
here that the Respondent generally repudiated its
limited contractual obligation to arbitrate griev-
ances "arising under" the expired contract within
the meaning of Nolde and Indiana & Michigan. Al-
though refusing on 9 April 1985, to arbitrate three
specific grievances, the Respondent did not cate-
gorically refuse to arbitrate all grievances based on
postexpiration facts. Remarks contemporaneous
with the Respondent's refusal to arbitrate those
three grievances on 9 April 1985, indicated that the
Respondent was taking an ad hoc, case-by-case ap-
proach to postexpiration arbitration requests. Al-
though the Respondent's remarks suggested that it
was applying other than Nolde criteria in deciding
whether to arbitrate postexpiration grievances, this,
in and of itself, is insufficient proof that the Re-
spondent's position constituted a "wholesale repu-
diation of its contractual obligation to arbitrate"
postexpiration grievances within the meaning of
Nolde and Indiana & Michigan.4
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
2 284 NLRB 52, 58
9 Id
* In light of the result reached by application of the principles of Indi-
ana & Michigan , we find it unnecessary to pass on the judge's discussion
of the 10(b) issue
Michael J Karlson, Esq., for the General Counsel.
Robert G. Mebus, Esq. (Haynes & Boone), of Dallas,
Texas, for the Respondent.
Michael J. Stapp, Esq. (Blake & Uhlig, P.A.), of Kansas
City, Kansas, for the Charging Party.
DECISION ,
1 The Charging Party has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge'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 re-
versing the findings
Fn 7 of the judge's decision refers to 13 December 1985 The correct
date is 13 December 1984
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge. This
case was tried in Phoenix, Arizona, on 17 September
1985.1 The complaint, issued 31 May, is based on a
' All dates hereafter are in 1985, unless otherwise stated
285 NLRB No. 100
GIFFORD-HILL & CO.
charge filed 16 April by Cement, Lime, Gypsum, and
Allied Workers Division of International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers
and Helpers, Local Lodge D405, AFL-CIO (Union, or
Local D405). The complaint alleges that Gifford-Hill &
Company (Respondent) violated Section 8(a)(5) and (1)
of the National Labor Relations Act (the Act).
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel, the Charging Party, ' and
the Respondent.
On the entire record, and from my observation of the
witnesses and their demeanor, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is, and at all times material here has been,
a corporation duly organized under , and existing by
virtue of, the laws of the State of Texas , with an office
and place of business ,in Clarksdale , Arizona, where it is
engaged in the manufacture and nonretail sale of cement
and related products. During the past 12-month period,
which period is representative of its annual operations
generally, Respondent, in the course and conduct of its
business operations , sold and shipped in interstate com-
merce from its Clarksdale, Arizona facility products,
goods, and materials valued in excess of $50,000 directly
to points outside the State of Arizona, and purchased
and received products, goods, and materials valued in
excess of $50,000 directly from points outside the State
of Arizona.
I find that Respondent is, and at all times material has
been, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Cement, Lime, Gypsum, and Allied Workers Division
of International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers and Helpers, Local
Lodge D405, AFL-CIO is, and at all times material has
been, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background2
Respondent's predecessor was AMCORD, Inc., which
operated the facility involved at Clarksdale, Arizona,
from mid-1970 until the latter part of 1980, when the fa-
cility was sold to Respondent. Respondent also has facili-
ties in Riverside and Oro Grande, California. The
Clarksdale facility has approximately 135 unit employees,
who are, and have been for approximately 20 years, rep-
resented by Local D405. Approximately 130 of the unit
employees are members of Local D405.
This background summary is based on stipulations of counsel, and on
testimony and evidence not in dispute.
747
The most recent collective-bargaining agreement be-
tween Respondent and the Union was effective 1 May
1981 through 30 April 1984. That agreement included a
provision for grievances and arbitration, as article 18,
sections (a) through (o).
In the spring of 1984 Respondent joined with Califor-
nia-Portland Cement Company (later merged with an-
other company and now known as CALMAT), which
operated several facilities, in a multiemployer bargaining
relationship (Association),' with concurrence of the
Union. Negotiations commenced in February 1984 be-
tween the Association, the International Union, and vari-
ous local uni s.4 Negotiations were conducted at three
levels. The first level negotiated basic issues common to
all the plants of the Association's two members. The
second level negotiated, on a single-employer basis,
issues common to Respondent's three plants at Clarks-
dale, Riverside, and Oro Grande. Unions involved were
the International Union and the three locals. The third
level negotiated issues peculiar to each local plant. In-
volved were Respondent," the International Union, and
the respective locals.
The issues involved in this case are concerned with
grievances and arbitration, which were discussed only at
the first level of negotiations. The General Counsel con-
tends that, following expiration of the 1981-1984 agree-
ment, Respondent implemented a grievance and arbitra-
tion provision nearly identical to the one in the expired
agreement , but on 9 April 1985 unlawfully announced to
the Union that it no longer would' arbitrate all griev-
ances-that thereafter, it would arbitrate only those mat-
ters it unilaterally selected for arbitration. Respondent
contends that, following expiration of the 1981-1984
agreement, it had no duty, contractual or otherwise, to
arbitrate grievances.
Several negotiation sessions were held in the spring of
1984, with both Respondent and the Union presenting
proposals for a new contract. The parties were not able
to agree and reached impasse . On 20 June 1984 Respond-
ent implemented its final proposal,' which contained,
inter alia, a grievance and arbitration provision as, article
18. The proposed article 18 was essentially the same as
article 18 of the 1981-1984 agreement. The only changes
were elimination of step 3 in section (b) and renumbering
the former step 4 as step 3 and reducing the number of
cases per hearing in section (k) from four to one.6 Prior
to the implementation by Respondent, there had been no
discussion during negotiations, of arbitration of disputes.
On 26 June 1984 a third-step grievance meeting was
held at the Clarksdale facility, attended by representa-
tives of Respondent and the Union, including among
others, Respondent's regional personnel manager, Mason
Dickerson, and Walter St. Clair, administrative manager
of the Clarksdale facility, as well as the International
Union's Floyd Phillips, Local D405's Robert Mochizuki,
3 This term "association" is used here solely for convenience. It has no
legal connotation
4 Local D48 represents Respondent's unit employees at Riverside, and
Local D192 represents Respondent's unit employees at Oro Grande.
5 It. Exh. 2
6 Later proposed by Respondent as two, rather than one
748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and Local D405's Mike Bellow. The grievance involved
several employees, and the facts relating to the grievance
had occurred prior to expiration of the 1981-1984 agree-
ment, as had establishment of the date of the grievance
meeting. On 27 June 1984 a fourth-step grievance meet-
ing was held at Clarksdale, attended by representatives
of Respondent and the Union, including, inter alia, Dick-
erson, Phillips, Bellow, who was vice president of Local
D405 and a longtime employee of Respondent at Clarks-
dale, and Mochizuki, president of Local D405 and also a
longtime employee of Respondent at Clarksdale. The
grievance related to stackers, and the facts relating to the
grievance arose prior to expiration of the 1981-1984
agreement. The grievance was "tabled," i.e^, held pend-
ing completion of a similar grievance at another plant.
The grievance to date has not been arbitrated.
In November and December 1984, Respondent and the
Union were engaged in a controversy concerning pro-
posed appearance of a representative of the International
Union at a second-step grievance which had arisen at
Respondent's Oro Grande plant. By letter dated 5 De-
cember 1984 addressed to the personnel director of the
Oro Grande plant, Jack Hammond, an International rep-
resentative of the Brotherhood of Boilermakers, stated,
inter alia:
The Company has completely changed the griev-
ance procedure by deleting the Fourth Step and the
Arbitration Procedure. You also changed the Third
Step so that only two (2) people are involved. It is
imperative that one of the International Representa-
tives be involved in the Second Step of the griev-
ance procedure because we are the ones that have
the expertise in conducting the investigations and
hearings. If we are not involved from the beginning,
then we will not know what is happening with the
grievances. Our involvement is necessary more than
ever now in the Second Step, because there is no
arbitration procedure.
A third-step grievance of Clarksdale employees was
held 7 December 1984, attended by Dickerson and an-
other representative of Respondent, as well as Interna-
tional Representative Ernest Lamoureux, and the Union's
chief steward at Clarksdale. Possible arbitration was dis-
cussed, but no decision was made.
At a joint conference (union) meeting on 13 December
1984, Kent Weaver, an area coordinator for the Interna-
tional Union, reported to union representatives that Re-
spondent "might not arbitrate grievances after the im-
posed date 1'7
On 9 April 1985 a third-step grievance meeting was
held at the Clarksdale facility. Present among others for
Respondent were Dickerson and the Clarksdale plant
manager . Present for the Union were Phillips and
Bellow. Three grievances were discussed, involving em-
ployees Jimmy Woodburn, Gary Fuqua, Teddy Carpen-
This quotation is from Mochizuki's testimony He explained that "im-
posed" means "implementation" of Respondent's proposals (of 20 June
1984) Mochizuki said he assumed Weaver acquired that knowledge
sometime prior to 13 December 1985, through conversation or a tele-
phone call with Dickerson
ter, and Phil Holt.8 The facts relating to all grievances
arose after Respondent's implementation of its last offer
on 20 June 1984. The Fuqua grievance was a carryover
of the one discussed 7 December 1984, noted above. All
grievances involved sections of the expired contract that
were carried over into Respondent's final (and imple-
mented) offer.9 The merits of the grievances were not
discussed. The Union asked, relative to all three griev-
ances, whether Respondent would go to arbitration, and
on each occasion the answer was no. Bellow asked Dick-
erson if Respondent was going to deny all grievances for
arbitration, and Dickerson replied, "We're not going to
deny all grievances for arbitration. We will deal with the
grievances as they come up, and with the company's per-
mission we will arbitrate only grievances pertaining to
their implemented proposals."10 The union representa-
tives then left the meeting, after threatening to strike Re-
spondent.ti
To date, Respondent has not changed its position rela-
tive to arbitration.
A. Union's Knowledge of Respondent's Position
Mochizuki, Bellow, Phillips, Lamoureux, and Kent
Weaver, a representative of the Union 's International,
testified that they were not aware prior to 9 April 1985
that Respondent would not arbitrate grievances under
Respondent's implemented final proposal.
1. Dickerson testified that, at the third-step grievance
meeting of 26 June 1984, referred to above, he stated to
Phillips:
I told Mr. Phillips at that time that since this was an
old third-step grievance meeting that I wanted to
take the opportunity, when we finished with these
grievances, to clear the air about where we were
with the new third-step grievance meetings, new
grievances.
At that time I said that we were not duty bound
to arbitrate grievances which occurred after expira-
tion of the contract, and we did not intend to do
that.
He said he understood. Then he said , "You also
understand that we can strike you over these griev-
ances?" I said, "I understand that too," and then we
proceeded into the grievances.
St. Clair testified.
Mason explained that the grievances that we were
going to discuss that day had happened prior to the
expiration of the contract, so that it would not be
under the old third-step procedure.
But any grievances that came up after the expiration
of the contract would be under the new implemented
proposals. At that point in time he made it clear that we
8 Carpenter and Holt were parties to the same grievance
9 Secs 3, 20, and 25 as numbered in the expired contract and the offer
10 This credited quotation is from Bellow's testimony
i i This threat was not carried out
GIFFORD-HILL & CO. 749
did not feel legally we had a duty to arbitrate griev-
ances.
Q. Did Mr. Phillips respond to that?
A. Mr. Phillips said, "That's right, and we can
strike over any grievance."
Q. Was there any-
A. Mason said, "That's my understanding."
Mochizuki testified:
A, Mr. Mason Dickerson upon observing the
number of participants that the Union had on their
side informed us that since these grievances had oc-
curred before the implementation of their firm and
final offer , that we're still going under the old
grievance procedure as far as the number of com-
mittee men allowed.
In the future any grievances occurring after June
20th, 1984, will go according to the number of
people allowed under their proposal.
Q. 'What was the difference with respect-to the
old agreement and their proposal as to the number
of people that comprised the union committee?
A. Under their proposal third -step grievance
meetings would allow only one local representative.
Q. At that meeting , was the subject of the em-
ployer 's willingness to arbitrate grievances dis-
cussed?
A. No.
Phillips corroborated Mochizuki's testimony, and
counsel stipulated that, if called to testify, Bellow also
would corroborate Mochizuki's testimony.
2. Dickerson testified:
On August 13th, 1984 we had a meeting in Oro
Grande, California. Mr. Kent Weaver was there as
spokesman for the Union with the local grievance
committee. We met at the plant in the conference
room.
The issue was a return to work offer that the
Union had given us. They had-some 30, 33 days
earlier certain maintenance people had refused to
bring their personal tools that they had brought
before, and they had been off work for those some
33 days.
The Union had written us a letter saying that
they were giving us an offer to return to work with
their tools. There was a statement in there about
some understanding that this would not prejudice
their case.
We wanted to meet with them to discuss with
them what they thought that understanding was.
So, we met with the Union on August 13th, 1984.
Kent Weaver was present.
At that time Mr. Weaver indicated that he
wanted to arbitrate our differences pertaining to
back pay for these maintenance men. I said then,
"We are not duty bound to arbitrate grievances
which occurred after the expiration of the contract,
and we do not intend to do so."
Q. Do you recall who was present for the Union
besides Mr. Weaver?
A. Mr. Al Padilla was there . Mr Ollie Olson.
There was some 14 or 15 maintenance people [sic]
who were affected that showed up for that meeting
too.
Weaver, who attended the meeting as the Union's
spokesman, denied there was any discussion of a griev-
ance or grievance and arbitration. He said the only
matter discussed concerned the right of employees to
take certain tools home. He said some employees had not
been permitted to come to work until the tools were re-
turned, and the Union wanted the employees made
whole under the contract for their losses.
3. Dickerson testified he attended a first-level negotia-
tion session 20 September 1984, at which a Federal com-
missioner was present. Weaver and Mochizuki also at-
tended, as did Bill Duran, a Crestmore employee who
was the Union's recording secretary for Local D48.
Duran asked Dickerson if Gifford-Hill was going to
guarantee arbitration, and Dickerson replied no. Dicker-
son continued:
Then he turned to the spokesman for California-
Portland, Mr. Frank Lewis, and nodded toward
him and said to me, "Do you mean you are sitting
right next to California Portland, who is honoring
arbitration, and you're not?" I said, "That's cor-
rect."
A little bit later in the evening Kent Weaver
asked each of us, Mr. Lewis and myself, about our
position relative to two issues as I recall. Whether
or not we would provide a copy- of the-a full text
copy of the implemented proposals, and whether or
not we would honor arbitration.
Mr. Lewis replied that they were honoring arbi-
tration and they were going to provide a full text
copy. I responded, "We are not honoring arbitra-
tion, and we are not going to provide a full text
copy as, quote, required by the agreement since
there is no agreement."
Mr. Weaver said, "You're damn right, and there
never will be one."
Weaver testified that he did not remember Duran
asking if Gifford-Hill representatives were going to guar-
antee arbitration and denied that Duran asked why Re-
spondent's position on arbitration- was different from that
of California-Portland Cement. Weaver also denied
asking if Respondent would honor the arbitration portion
of its proposal. Weaver testified that "the very first time"
he had been aware from Dickerson that Respondent was
not going to arbitrate grievances was a few weeks prior
to the hearing of this matter, although he,previously had
heard something to that effect from Lamoureux, who
said "the company was taking the position that they
weren't going to arbitrate."
St. Clair testified that, at the meeting, Duran asked if
Respondent was going to honor arbitration, and Dicker-
son said no. Duran then asked, "Do you mean to tell me
you are both sitting there at the same table and one is
750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
going to do nothing and one of you is going to do some-
thing different?"
4. Dickerson testified he attended a meeting on 2 No-
vember 1984, at which Jerry Farr, plant manager of the
Oro Grande plant, and Claire Moseley, Oro Grande's
personnel representative, were present. Hammond and
Lamoureux were present for the Union. Dickerson be-
lieved the meeting , which had been scheduled by Re-
spondent , was for third-level negotiations. Dickerson tes-
tified:
Mr. Hammond insisted that that was not the pur-
pose of the meeting . He was there. He wanted to
discuss disputes with the Company. I had suggested
that we had a grievance procedure that he might
follow to discuss disputes. At that time he said,
"There is no arbitration clause and we may or may
not use your grievance procedure."
Q. Did he ask you during the course of that
meeting if you would arbitrate the disputes, some of
which were the subject of that meeting?
A. Yes, he did. And I responded that would not
give him blanket arbitration, but that if he wanted
to use the grievance procedure and in the course of
that grievance procedure as the issues came up, spe-
cifically if they wanted to ask us about arbitration,
we would consider them at that time.
Q. Was there any discussion about the right to
strike?
A. Yes. I asked him at that time if he had the
right to strike, and he says, "Yes, we do."
Hammond did not testify.
Lamoureux testified that, at the meeting, Hammond
and Dickerson had a dispute concerning the reason for
the meeting . Dickerson said it was for local negotiations,
and Hammond said it was to discuss disputes. Some out-
standing disputes involving employees were mentioned,
and Dickerson insisted that Hammond "go through the
grievance procedure"-that the parties were there for
local (third level) negotiations. Hammond insisted that
they discuss the employee disputes. Lamoureux testified:
Hammond said, "Will you arbitrate these disputes?"
Dickerson says, "You give me a no strike clause."
Hammond said, "I'll agree not to strike over these
issues , you agree to arbitrate them." Dickerson
again just said, "Go through the grievance proce-
dure." The meeting ended rather abruptly.
Dickerson never said at the meeting that he would not
arbitrate grievances.
5. Dickerson testified that, during a third-step griev-
ance meeting at Clarksdale on 7 December 1984, he
stated to Lamoureux that Respondent would consider ar-
bitrating cases which occurred after the 1981-1984 con-
tract expired, but that Respondent was not "duty bound"
to do so.
Lamoureux testified that Dickerson stated at the meet-
ing "that he would look at each case on a case-by-case
basis , each grievance on a case-by-case basis " Lamour-
eux testified that there was no refusal by Respondent to
arbitrate any grievances that came up during the meeting
and stated that, when he asked to arbitrate the Fuqua
matter, Dickerson said, "He would take it under consid-
eration and get back to me." On 14 February 1985 La-
moureux wrote a letter to Dickerson and asked for his
reply to Lamoureux's request of 7 December 1984, but
Dickerson did not reply and never has.
Bellow testified that, although he did not attend the
meeting of 7 December 1984, there was some question as
of that date about whether Respondent would arbitrate
grievances.
6. As noted above, Mochizuki testified:
You stated, in response to counsel's question a
little while ago, that the first you heard, and correct
me if I'm paraphrasing this incorrectly, the first you
heard that the Company was not going to arbitrate,
and my recollection is you said three specific cases,
and you heard that on April the 9th?
A. That's correct.
Q. All right. Now, actually, is it fair to say that
you had heard prior to that time that the Company
was not going to arbitrate cases arising subsequent,
I'm talking about grievance cases , arising subse-
quent to the expiration of the contract?
A. Not from the Company, but from a report
given to us, yes.
Q. Well, all right. When was that?
A. That was on-if I recorded the date correctly,
it was December 13, 1984.
Q. And from where did you get that?
A. From Brother Kent Weaver at a joint confer-
ence meeting we held in Oro Grande, California.
Weaver testified:
Q. Did you give a report to members day we had
a joint conference meeting at the community center
in Oro Grande, California, a two-day meeting. As is
common for those kind of meetings, I was on the
agenda for comments or reports to the conference
on various matters.
Q. As one of those matters did you report that
the Company would or might not arbitrate cases?
A. No, I did not.
Discussion
Dickerson appeared to be a reliable witness and is
credited. In addition to his appearance on the stand, his
testimony partially is supported by that of the General
Counsel's witnesses, and further, there are several incon-
sistencies in the accounts given by the union representa-
tives. A noteworthy inconsistency is that of witnesses
Mochizuki and Weaver, noted in No. 6 above.
B. The 10(b) Issue
In its amended answer, Respondent stated as its third
affirmative defense "The subject matter of the complaint
is not the subject of a timely unfair labor practice to the
GIFFORD-HILL & CO. 751
National Labor Relations Board and therefore this com-
plaint is barred by limitations." 12
The charge was filed 16 April 1985, as noted above.
The 6-month 10(b) date is 17 October 1984.
As summarized in section A above, it is quite clear
that the Union knew since 26 June 1984 that Respondent
did not feel obligated to arbitrate disputes that arose
after Respondent implemented its final proposal -on 20
June 1984. Respondent contends that its refusal to arbi-
trate such disputes was clear and unequivocal, and-coun-
sel for the General Counsel contends it was not.
It is necessary, if Respondent's 10(b) defense is to be
found proved, that Respondent's refusal to arbitrate cases
was communicated to the Union prior to 17 October
1984 in a clear and unequivocal manner. I s Review of the
testimony shows that Respondent's notice was not clear
and unequivocal. Respondent couched its refusal to arbi-
trate in fuzzy language. Respondent was hedging its bets,
so to speak.
On 26 June 1984 Dickerson stated that Respondent
was not "duty bound" to arbitrate, and "did not intend"
to do so. That is not a refusal to arbitrate . It is a state-
ment of future intention, not a statement of present fact.
On 13 August 1984 Dickerson stated to union repre-
sentatives "We are not duty bound to arbitrate griev-
ances which occurred after the expiration of the con-
tract, and we do not intend to do so." That statement
added nothing to Respondent's earlier {26 June) state-
ment of intentions relative to the future.
On 20 September Dickerson told Duran, Weaver, and
Mochizuki that Respondent "was not going to guaran-
tee" or "honor" arbitration.
Although Respondent's position stated within the 10(b)
period is not probative so far asthis issue is concerned,
its statements are indicative of that position and support
the conclusion that its position was not a hard and fast
refusal to arbitrate grievances. At meetings on 2 Novem-
ber and 7 December 1984, Dickerson told union repre-
sentatives that arbitration requests would be considered
on a case-by-case basis, although Respondent was not
"duty bound" to arbitrate grievances. Further, Dickerson
never replied to Lamoureux's letter of 14 February 1985,
where the latter asked if Respondent was going to arbi-
trate a dispute. That letter was based on the Union's ear-
lier verbal request for arbitration.
So far as the Union is concerned, it is apparent that it
was as uncertain about Respondent's position as Re-
spondent was. The grievance of 27 June 1985 was
"tabled" for future determination of the matter of arbi-
tration. At a meeting between Respondent and the Union
on 7 December 1984, possible arbitration of a grievance
was discussed, but no decision was reached. At a union
meeting on 13 December 1984, Weaver stated that Re-
spondent "might not arbitrate grievances after the im-
posed date."
Considering the record as a whole, it is clear, and
found, that Respondent did not sustain its burden of
proof relative to this affirmative defense, and that Re-
12 At trial, Respondent withdrew, solely for the purpose of this case,
its first affirmative defense, relating to a merger involving the Union
13 Harvey Engineering Corp., 270 NLRB 1290 (1984); American Distrib-
uting Co. v NVLRB, 715 F 2d 446 (1983), enfg 264 NLRB 1413 (1982)
spondent did not, 'in 'clear and unequivocal terms, state
prior to 17 October 1985 that it repudiated any require-
ment that it arbitrate disputes.14 However, this conclu-
sion does not dispose of the basic issue.
C. The Arbitration Issue
All of section 18 of Respondent's contract proposals of
4 June 1984 is not in issue. Respondent and the Union
have followed all of the arbitration portion of section 18
proposals except that which provides that disputes not
resolved by an arbitration board, comprised of two mem-
bers each from Respondent and the Union, will be pre-
sented to an' independent arbitrator. The meeting of 9
April 1985 was such an arbitration board meeting. Re-
spondent contends that it has no duty, even under its im-
plemented proposal, to take disputes to a neutral arbitra-
tor.
So far as practice is concerned, both Respondent and
the Union have followed procedures set forth in Re-
spondent's proposal of 4 June 1984, other than referral of
grievances to a neutral arbitrator. The grievances and
disputes discussed 26 June 1984 (Clarksdale), 27 June
1984 (Clarksdale), 13 August 1984 (Oro Grande), and 2
November 1984 (Oro Grande) all involved grievances
based on facts that occurred prior to expiration of the
1981-1984 agreement. Respondent was willing to go to
arbitration on those grievances, and there is no issue so
far as they are concerned.
The grievance meeting of 9 April 1985 was the first in-
stance following expiration of the 1981-1984 agreement,
where the facts arose after expiration of that agreement.
As noted, Respondent declined to submit those griev-
ances to a neutral arbitrator following the request of the
Union-to arbitrate.
In a case pending before the National Labor Relations
Board captioned Dundee Cement Co.,15 issued by Ad-
ministrative Law Judge Mary Ellen R. Renard -on 7
August 1985, one of the issues was quite similar to the
one now under consideration. 16 Administrative Law
Judge Renard summarized the law relating to this issue
and, although the Board has not yet spoken, it appears
that the Dundee decision was well-reasoned and consist-
ed with applicable law. In summary, Administrative Law
Judge Benard stated:
Nolde,17 American ,5ink,18 and Digmor, 19 thus all
stand for the proposition that at least in the absence
of clear evidence to the contrary, the parties will be
deemed, to have intended that the arbitration clause
in an expired contract continues to apply to griev-
ances that arose under that contract or prior to its
expiration. However, these cases also stand for the
proposition that a party cannot be compelled to ar-
bitrate in the absence of a contractual obligation to
14 Harvey Engineering, supra
15 Consolidated Cases 7 -CA-23980 and 7-CA-24135, JD-224-85.
16 Counsel for the General Counsel states, inter alia "No attempt will
be made where to distinguish the facts of the instant case from Dundee
because most of them are the same "
17 Nolde Bros v Bakery Workers, 430 U S 243 (1977).
18 American Sink Top Co , 243 NLRB 408 (1979).
19 Digmor Equipment Co, 261 NLRB 1175 (1982).
752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
do so. In the instant case, it is undisputed that the
Respondent remained willing to arbitrate grievances
which arose under the expired contract, and that
the issue is whether the Respondent was required`to
include an arbitration provision in the terms and
conditions of employment implemented after im-
passe. The question thus becomes whether the Re-
spondent was obligated to implement an arbitration
clause because it was included in its final offer to
the Union. I think not.
Administrative Law Judge Benard found that the Re-
spondent's refusal to implement the arbitration portion of
its offer did not run afoul of the requirement that an
offer implemented after negotiation impasse must have
been "reasonably comprehended" by the offer made
prior to impasse.20 In finding that the Respondent was
not required to implement its arbitration offer made prior
to impasse, even though other offered provisions were
implemented, Administrative Law Judge Benard placed
emphasis on the expired contract's no-strike provision. In
making that finding, the administrative law judge stated:
My conclusion that the Respondent was not re-
quired to implement the arbitration clause is bol-
stered by the fact that the grievance procedure in
the expired contract included a no-strike clause,
which was incorporated in the Respondent's final
offer No-strike clauses are generally considered to
be a quid pro quo for arbitration provisions, al-
though a determination to that effect in any given
case must be based on an analysis of the intentions
of the parties. In the instant case, both a no-strike
clause and an arbitration clause were included in
the Respondent's final offer and, in the absence of
any evidence to the contrary, it is reasonable to
assume that the parties intended these clauses to be
interdependent. Consequently, since the Respondent
could not unilaterally implement the no-strike
clause, it should not be required to implement the
arbitration clause. [Footnote omitted.]
In the case at hand, Phillips explicitly, and Mochizuki
implicitly, testified that all provisions of the expired con-
tract not mentioned in Respondent's final offer were to
be included in any new agreement reached by the par-
ties. In other words, Respondent's final offer included
the no-strike provision of the 1981-1984 contract At the
20 See , e g , Pease Co, 251 NLRB 540 (1980), enfd 603 F 2d 225 (9th
Cir 1979), Providence Medical Center, 243 NLRB 715 (1979)
meeting of 9 April 1985, discussed above, Phillips threat-
ened to strike Respondent, but no strike was called. On
two occasions since the 1981-1984 contract expired, the
Union has struck Respondent. One strike occurred in
September 1984, and the other occurred in February
1985. No contractual provision prohibiting such strikes
then was in effect, hence Respondent was not able legal-
ly to oppose them.
In this case, as in Dundee, a no-strike provision and an
arbitration provision were included in Respondent's final
offer. Reasonably it may be inferred, and it is inferred,
that Respondent and the Union intended that the two
provisions are interdependent.21 That inference is sup-
ported by the strike actions of the Union after the 1981-
1984 agreement expired, and by the statements of Re-
spondent made to the Union dunng various conversa-
tions quoted above.
It is found that, since no contract existed between the
parties,22 Respondent was not obligated to implement
the arbitration provision contained within its final offer.
On the basis of the above findings of fact and on the
entire record, I make the following
CONCLUSIONS OF LAW
1. Gifford-Hill & Company is, and at all times material
here has been, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Cement, Lime, Gypsum, and Allied Workers Divi-
sion of International Brotherhood of Boilermakers, Iron
Ship Builders, Blacksmiths, Forgers and Helpers, Local
Lodge D405, AFL-CIO is, and at all times material here
has been, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. Respondent did not, as alleged, violate Section
8(a)(5) and (1) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed23
ORDER
The complaint is dismissed in its entirety.
21 Dundee, supra, and cases cited there
22 Milwaukee Typographical Union Local 23 v Madison Newspapers, 444
F Supp 1223 (W D Wis 1978)
23 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 ti.em shall be deemed waived for all pur-
poses