Granite City Steel Co.

National Labor Relations Board - Board Decisions

Sep 5, 1967

167 N.L.R.B. 310 (N.L.R.B. 1967)

310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Granite City Steel Company and Local 50, Interna-
tional Chemical Workers Union , AFL-CIO, CLC.
Case 14-CA-4148
September 5, 1967
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On May 29, 1967, Trial Examiner Samuel M.
Singer. issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel and the Respond-
ent filed exceptions to the Decision, and briefs in
support of their exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as modified below to
conform the Order and Notice to the recommenda-
tions set forth in the section of the Trial Examiner's
Decision entitled "The Remedy."
(a) In accordance with the practice which ex-
isted prior to September 7, 1966, restore to the
business representative of the above Union the
right of unlimited access, on foot and by automo-
bile, to the plant at all times, with the understanding
that the business representative is not to interfere
with or impede progress of work or the direction of
any member of management, and that he is to con-
duct himself in a proper manner and in accord with
the collective-bargaining agreement between the
parties.
(b) Revoke the unilateral changes in grievance
practices and procedure instituted on September 7,
1966, which restricted access to plant property by
the business representative of the above Union, and
notify the Union to that effect.
(c) Post at its premises in Granite City, Illinois,
copies of the attached notice marked "Appendix."'
Copies of said notice, on forms provided by the Re-
gional Director for Region 14, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 14,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
' In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals En-
forcing an Order "
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respond-
ent, Granite City Steel Company, Granite City, II-
linois, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Failing and refusing to bargain collectively
with Local 50, International Chemical Workers
Union, AFL-CIO, CLC, as the exclusive collec-
tive-bargaining representative of its employees in
the appropriate unit, by unilaterally instituting or
changing grievance practices or procedure, or any
other term or condition of employment of its em-
ployees within the aforesaid unit, without prior con-
sultation and bargaining with the aforesaid Union.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the exer-
cise of their rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action
designed to effectuate the policies of the Act:
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board, and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL, in accordance with the practice
which existed prior to September 7, 1966,
restore to the business representative of Local
50, International Chemical Workers Union,
AFL-CIO, CLC, the right of unlimited access,
on foot and by automobile, to the plant at all
times with the understanding that the business
representative is not to interfere with or im-
pede progress of work or the direction of any
member of management, and that he is to con-
duct himself in a proper manner and in accord
with our collective-bargaining agreement.
WE WILL revoke the unilateral changes in
grievance practices and procedure instituted by
us on September 7, 1966, which restricted ac-
167 NLRB No. 35
GRANITE CITY STEEL CO.
cess to our plant property by the business
representative of Local 50, International
Chemical Workers Union , AFL-CIO, CLC,
and we will notify the Union to that effect.
WE WILL NOT fail or refuse to bargain collec-
tively with the Union as the exclusive
representative of all our employees in the ap-
propriate bargaining unit , by unilaterally
changing grievance practices or procedure or
any other term or condition of employment of
our employees in the unit without prior con-
sultation and bargaining with the Union.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce our em-
ployees in the exercise of their rights guaran-
teed in Section 7 of the National Labor Rela-
tions Act.
GRANITE CITY STEEL
COMPANY
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 1040 Boatmen's Bank Building, 314 North
Broadway, St. Louis, Missouri 63102, Telephone
622-4167.
TRIAL EXAMINER'S DECISION
SAMUEL M. SINGER, Trial Examiner: This case was
heard before me at St. Louis, Missouri, on March 13-14,
1967, pursuant to a charge filed on November 17, 1966,
and a complaint issued on February 8, 1967.1 The issue
litigated was whether Respondent, in violation of Section
8(a)(1) and (5) of the National Labor Relations Act, as
amended, unilaterally restricted the Charging Party's
representatives' previous unrestricted access to Respond-
ent's blast furnace plant for the purpose of administering
the collective-bargaining agreement.
All parties appeared and were afforded full opportunity
to be heard and to examine and cross-examine witnesses.
All waived oral argument at the conclusion of the case.
Briefs were received from General Counsel and Re-
spondent.
Upon the entire record in the case,2 the briefs, and my
observation of the witnesses, I make the following:
' Unless otherwise specified, date references are during the period
aroundJune 1966-February 1967
2 Transcript corrected by my order dated May 3, 1967.
3 The findings in this and succeeding sections are based largely on un-
contradicted testimony and documentary evidence.
FINDINGS AND CONCLUSIONS
311
1. THE BUSINESS OF RESPONDENT; THE LABOR ORGANIZA-
TION INVOLVED
Respondent, a Delaware corporation, with its principal
office and place of business in Granite City, Illinois, is en-
gaged in the manufacture, sale, and distribution of steel
and related products. It annually ships to States outside
Illinois products valued in excess of $50,000. I find that
at all material times, Respondent has been and is engaged
in commerce within the meaning of the Act.
The Charging Party, herein called the Union, is a labor
organization within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background; Contractural Grievance Provisions,
Understandings, and Practices3
Respondent's facilities at Granite City include a blast
furnace plant and steel mill, separated by approximately
three-quarters of a mile. The blast furnace area, 1,487 by
487 yards, contains a complex of buildings (coal
machines "plant," sulphate building, machine shop, etc.),
where different operations or processes are performed.
Most of the blast furnace employees work within 200
yards of the main gate. The employees' parking lot is out-
side the blast furnace area, directly across the road from
the main gate, while the supervisors' parking area is in-
side the plant, near the main gate. The blast furnaces
operate 3 shifts, 7 days a week, the largest being the "day
turn" (8 a.m.-4 p.m.) with about 400 employees. The two
night shifts consist of about 160 employees each and the
weekend shifts of about 180.
The Union has represented Respondent's approxi-
mately 900 blast furnace employees since Respondent
acquired the blast furnace plant in February 1951; it has
since entered into successive collective agreements with
Respondent. Among Respondent's other employees are
steelworkers, bricklayers, and hod carriers, represented
by other unions.
The collective agreement contains a five-step
grievance-arbitration provision. Step one provides that
the "employee or employees involved, and their Union
Representatives may take the grievance up with the
foreman in charge within twenty-four (24) hours, and not
later than thirty (30) days from the date of occurrence."
Step two provides that if no agreement is reached at step
one, "the grievance shall be reduced to writing" and con-
sidered by the "Department Superintendent" and "Union
Representatives." In practice, the Union's business agent
has usually been the "Union Representive" at the first
stage of the grievance procedure, although shop stewards
have also represented grievants at that stage.' Union Pre-
sident Braun, a former business agent, credibly testified
that stewards normally "become involved" at the second
or third steps when the grievance reaches the stage of for-
mal meeting with management and, in fact, that it was not
until that stage that the steward is informed of the
" Union Officials Braun and Bennett credibly testified that the business
agent is involved in 90 percent of the grievances at the first step Company
Official Hundley conceded that he is "principally" involved in handling
grievances, but estimated that 50 percent were filed by shop stewards. I
credit the more positive testimony of Braun and Bennett on this point.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grievance . Furthermore , the business agent participates
in every grievance step. As the Union's only full-time
paid employee, he is "on 24-hour call" to serve all shifts.
Business agents servicing the bargaining unit have been
employees on leave for the duration of their tenure as
agents. The Union has only 10 to 15 shop stewards in the
entire blast furnace plant , some shifts (and indeed some
of the 26 departments) without any.5
The collective agreement contains no specific provi-
sion on access by business agents or other union
representatives for the purpose of handling grievances.6
Nor was the question of right of union access specifically
raised in precontract negotiations - at least in those
preceding the current contract, effective September 1,
1965, to October 1, 1968.7 For 12 years (February 1951
to December 1963), each of the Union's five elected busi-
ness agents was verbally advised by Respondent that he
had "unlimited" access to company property as long as
he did not interfere with or impede production and
management direction. With the election of the sixth busi-
ness representative, Richard Hamilton, the scope and
conditions of such "unlimited" access was put into writ-
ing. Respondent ' s December 27, 1963, letter to Richard
Hamilton states in relevant part:
So long as you conduct yourself in a proper
manner and operate according to the Contract
between the parties, you will be permitted access on
foot to the plant at all times, with the understanding
that you are, under no circumstances, to interfere
with or impede progress of work, or the direction of
any member of Management.
The restriction "on foot" was withdrawn by Respondent
after discussion with the Union, Respondent thereby
agreeing that Richard Hamilton, like the business agents
before him, could use his automobile to go about plant
property. Also like previous business agents, Hamilton
was able to enter the plant on all shifts, including the two
night shifts and on holidays and weekends without obtain-
ing prior permission from management. Company Vice
President Hundley, Respondent's chief industrial rela-
tions official, testified that the access "privilege" was
granted "automatically and routinely to all business
representatives since [Respondent] acquired [its] facili-
ties on February 3, 1951 "
B. Respondent's New Restrictions on Plant Access, Im-
pairing the Business Agent's Communications With Em-
ployees on Grievances
The record establishes, and I find, that on June 25,
1966, Richard Hamilton induced a slowdown in the blast
It was stipulated that there were "approximately 70 openings for
stewards presently filled by 10 to 15." According to Union President
Bennett , the Union has had difficulty in recruiting volunteers for those
positions , chiefly because of the feeling that stewards were being
"bypassed" in the grievance procedure Business Agent Charles Hamil-
ton, a former steward, testified that "some people just don 't care to be
stewards, .. since the business representative has been more or less the
union . we didn't really have too much use for stewards . .
6 Under a supplementary agreement adopting "company policies
concerning employees entering the plant ," the union president , financial
secretary , and recording secretary are authorized "to enter the plant any-
time on official Union business ," but it is conceded (Resp. Br p 2) that
these officers - all employees - never enter the plant on union business,
except to attend meetings with company representatives . None of them
participates in the grievance procedure
7 During the final stages of the 1965 negotiations the parties did make
furnace plant over a dispute concerning the discharge of
two employees According to Vice President Hundley,
Hamilton had driven through the plant to direct the slow-
down, countermanded orders of supervisors, and other-
wise interfered with production. Braun, then union pres-
ident, helped resolve the dispute and, at the urging of
Company Offical Muttach, drove through the plant and
got the men to return to "normal operations" that same
day. In a subsequent meeting (June 28) and in an
exchange of correspondence Respondent discussed with
the Union this incident and other problems, including
some of its own (e g., competing market conditions)
which contributed to restlessness in the plant. In its July
6 letter to Richard Hamilton, Respondent warned that in
the event of "any repetition" by Hamilton of the June 25
incident or other concerted work disruption, the Com-
pany was "prepared" to "[d]eny you admission to the
Company premises except under special terms and condi-
tions as established by the Company." Vice President
Hundley testified that after an "outstanding effort" to
reestablish past good relations, made by International
Union Attorney Sheppard at a July 19 meeting, "condi-
tions started to show a significant improvement." He also
testified that subsequent to this July 19 meeting there was
"no further indication" of a recurrence of the kind of
problems about which Respondent had been com-
plaining."
On September 1, Braun replaced Richard Hamilton as
business representative. By letter of September 7, Com-
pany Manager of Industrial Relations Christy informed
Braun that his access to premises as business agent would
thenceforth be limited to weekday hours, thereby
precluding his entry on two of the three shifts and on
holidays, Saturdays and Sundays; and that access would
be permitted only "on foot," thereby forbidding him to
drive his automobile about the plant. Christy wrote:
So long as you conduct yourself in a proper manner
and operate according to the contract between the
parties, you will be permitted access on foot to the
plant any time during the day turn, Monday through
Friday, and at other times when approved by the In-
dustrial Relations Department or by Mr. H. A. Mut-
tach [superintendent of sheet metals division]. This
is with the understanding that you are under no cir-
cumstances to interfere with or impede the progress
of work, or the direction of the operations by mem-
bers of Management.
When Braun protested the new access limitations,
Christy explained that they were imposed "because of ac-
tions that the previous agent [Richard Hamilton] had
taken" in instigating a slowdown. When Braun pointed
general reference to existing practices Union Representative Braun
testified that although expressing bitterness concerning "many practices"
in the blast furnace plant , Company Vice President Hundley stated that
"to get a signed contract he would assure us that there would be no
changes made [ in existing practices ] during the life of this contract."
Hundley testified that he only "indicate[d] that there would be no
wholesale change in practices or agreements unless there were new or
changed conditions "
" Richard Hamilton is presently a company supervisor, in charge of the
transportation department . Hundley testified that although "a real thorn
in our side as a business representative. we felt that [ his] aggressive at-
titude , if carried over into a supervisory position " would make him excel-
lent management material He indicated that Richard had shown interest
in a supervisory position for years , and named other former union busi-
ness agents promoted to supervisory positions in the past Richard is a
brother of Charles Hamilton , the Union 's current business representative.
GRANITE CITY STEEL CO.
out that he did not think he "should be judged" by
Richard's conduct, Christy assured him that "there was
nothing personal in it," but that this was nevertheless
going to be new "Company policy." Braun stated that he
intended to take the matter further.
At the hearing Vice President Hundley cited additional
reasons for the new access limitations. As to access on
foot, he stated that "about 90 percent of the employees
are located within 200 yards of the main gate and we did
not feel that it was necessary for [the business agent] to
drive his car into that plant." As to hours of access, he ex-
plained that the Company and Union had negotiated a
grievance procedure 8 years ago and "we felt that it did
provide for an orderly procedure in the processing of
grievances [which] should be done during normal busi-
ness hours" except when otherwise imperative "in ex-
treme emergencies." Hundley also indicated that allow-
ing the business agent unrestricted access "promoted"
petty and minor complaints which would "probably"
never come up "in a more business like and orderly"
grievance procedure.
Hundley admitted that from his knowledge of and ex-
perience with Braun (a former union president and busi-
ness agent when Respondent introduced the new restric-
tions) and Charles Hamilton ( Braun 's successor and a
business agent for 3 years between 1961 and 1963),1° he
believed that neither would "personally" engage in the
kind of improper activity in which Richard Hamilton had
engaged. Hundley characterized Braun as "a fine gen-
tleman, an outstanding worker," who, although "in-
volved" in the June 25 incident in his capacity as union
president, was "in complete disagreement with Richard
Hamilton" and took affirmative steps to quelch the slow-
down. He characterized his past relationship with
Charles Hamilton as "excellent" and stated that to his
knowledge he "never participated in or would condone
the types of activities his brother [Richard Hamilton]
participated in."
As previously noted, Respondent's bricklayers, hod
carriers, and steelworkers are represented by unions
other than the Charging Party. The business representa-
tives of the Bricklayers Union (Zupan, an employee), and
of the Hod Carriers (Steward, a nonemployee), credibly
testified that Respondent has interposed no restrictions
on their access to plant premises either as to days, hours,
shifts, or method of travel. As previously, Zupan drives
his car anywhere in the steel mill, although he does not do
so within the blast furnace plant where he parks his car at
the brick shed." Steward likewise drives his car in all
areas of the steel mill. Although as a nonemployee he is
issued a special pass each time he enters the plant, he was
never denied permission to enter.
N When asked whether the decision as to "an emergency situation" was
to be made only by the Company, Hundley testified, "Your [sic] darn
right ... an emergency situation is not what the Union thinks it is . "
11 Braun has been with the Company since July 1952; Charles Hamilton
was hired by Respondent 's predecessor 21 years ago
" The bricklayers in the blast furnace plant apparently work only in this
area , unlike the bricklayers in the steel mill, they usually work only day
hours.
11 Braun nevertheless arranged to meet the grieving employees and the
foreman at the gate ("the clock alley") where he discussed the problem,
directed the men to resume work , and the next day settled it When Hans
learned what happened, he stated that in the future employees meeting
him at the gate "would be docked" for leaving their jobs
13 Braun did not specifically give Hans the nature of his "union busi-
ness" because "the last time" he called he was told "it didn 't make any dif-
ference."
313
C. The Union's Abortive Attempts To Obtain Access to
Company Property
After the new September 7 access restrictions, the
Union's business representatives made several unsuc-
cessful attempts to enter the plant to attend to grievances
of night-shift employees. In mid-September, Robert
Hans, Industrial Relations Manager Christy's assistant,
denied Business Representative Braun's 12:30 a.m.
request to enter the plant to settle a work assignment
dispute because he "didn't feel that it was serious enough
to warrant [his] being out there. 1112 Hans again rejected
Braun's request to enter the plant on October 4 and also
Union President Bennett's appeal the same evening that
he reconsider his denial of permission.13 He similarly de-
nied Braun access permission on October 5. On October
8, Superintendent Muttach likewise refused Braun per-
mission to enter the plant to attend to a grievance because
he "didn't think that it [the matter Braun described] was
serious enough" and "anyway, he couldn't give the per-
mission to get in even if he wanted to."'a In the last week
of December, Christy refused to grant Charles Hamilton,
the newly elected business representative, permission to
enter the plant to handle a complaint against a foreman,
telling Hamilton "to take it through the grievance
procedure." Christy gave Hamilton the same response
when he denied Hamilton's Jaunuary 1 request to handle
the grievance of an employee who believed he was being
discriminated against by his foreman.' 5
The disputed matters involved in the October 4 and
New Year's Day incidents were processed as written
grievances in accordance with the contractual provisions
while those involved on October 5 and 8 were not.
D. The Union's Unsuccessful Attempts to Reestablish
the Business Representative's Right to UnlimitedAccess
The Union repeatedly protested the September 7 ac-
cess restrictions and met with Respondent on several oc-
casions in an attempt to reestablish the business represent-
ative's right to unlimited access. On September 9, Busi-
ness Representative Braun and Union Vice President
Jackson conferred with Company Officials Hundley,
Christy, and Muttach. When Braun asked Hundley to
reconsider the new access restrictions, Hundley refused
to do so "because of the actions that the previous busi-
ness agent had taken," explaining, however, that "there
was nothing personal in it" as far as Braun was con-
cerned. When Braun pointed out that the supplementary
agreement (supra, fn. 6), authorized certain union officers
to enter the plant "at any time on union business,"
Hundley remarked that that was not "a binding agree-
'" In course of the discussion Muttach expressed the personal opinion
that the newly imposed restrictions were "pretty childish and he could see
no reason " for them
15 The findings on the first three incidents recited in this paragraph are
based on uncontradicted evidence , the findings on the last two on Hamil-
ton's credited testimony Although recalling details of the New Year's
Day call, Christy denied that Hamilton requested permission to enter the
plant He similarly denied Hamilton requesting such permission in the
December incident . Portions of Chnsty's testimony , particularly on the
December episode, are evasive and incredible Thus , although claiming
that he discussed the matter on the telephone with Hamilton for 30
minutes, he could not recall the nature of the problem discussed, he re-
membered only that it was "inconsequential" and that he told Hamilton
that it "could be handled just as well the next day " In its brief (p. 5),
Respondent does not question that Hamilton was denied permission to
enter the plant on New Year's Day
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment," but "a privilege" revocable at will. Respondent
nevertheless agreed to relax the September 7 restrictions
to the extent of allowing the business representative to
drive his car to a designated area within the blast furnace
plant, park it, and then continue on foot, but only during
day hours. The Union maintained that it "could not
operate with these restrictions."
In the last week of September, Braun and then Union
President Bennett again met with Company Officials
Christy and Hans. Braun requested the Company not to
"penalize" him for the conduct of the previous business
agent, but Christy said that "they could not change the
Company's policy" in regard to plant access. Bennett ex-
plained that the Union needed unlimited access for the
business representative because many departments had
no stewards and pointed out that the business agent has
often settled grievances with the foreman on the spot.
.Christy replied that "the business agent had no business
going out there browbeating [the foreman] or changing
his mind about anything" and that "the business agent
should meet with the higher echelon of the Company and
this would be on a second or third step of our grievance
procedure." Christy also said that "the Company figured
this was a good time to make a clean break" on the matter
of plant access, since the Union now had a new business
agent and president; and that if the business representa-
tive had to get into the plant at night he could still do so by
obtaining permission from one of three company officials
who would grant it "if they thought [the] matter was im-
portant enough." When Bennett asked if Christy would
consider discharge of an employee "serious enough" to
warrant plant visitation at night, Christy replied that
"nothing short of a department shutdown or a plant shut-
down could warrant coming out there at night" since
"anything else could be handled through the grievance
procedure." The discussion then turned to a recent in-
cident in which an employee arranged to meet Business
Representative Braun at the gate to discuss his grievance
because Braun 'could not gain access within the plant.
Christy stated that "in his mind the employee was creat-
ing a work stoppage" and that he would "put a stop to it."
When Bennett observed that if he did that the employees
would telephone the business representative, Christy
responded that "use of the phone on the job was also a
privilege" which, if abused, would also be stopped.
Within 2 weeks, Braun and Bennett again met with
Christy and Hundley. Hundley expressed full agreement
with Christy's views on plant access and stated there
would be no change in company policy as embodied in the
September 7 letter. Observing that he was aware of
Respondent's claim that a slowdown occurred in the past,
Bennett assured Respondent that the Union opposed
such conduct, and was endeavoring "to create a better
relationship" with the Company. Hundley responded that
he believed Bennett was sincere and that he respected
Bennett's integrity, but insisted that "this was the time to
make a clean break." Hundley reiterated the company
position that the business agent's access to the plant, at
night or day, was "a privilege" and if Braun or any other
business agent "in the future abuses this privilege, they
will be denied access to the premises." Hundley also said
that if necessary all meetings between the Company and
Union would be held outside the blast furnace area and
the Union "wouldn't be allowed to meet with any of the
foremen." Also discussed was Respondent's right to
withdraw the union officers' access privilege under the
supplement agreement and the Union's argument about
the desirability of settling grievances at the job level to
avoid employee restlessness and dissension within the
plant. At the end of the meeting the union representatives
stated that they would "fight" Respondent on the matter
of access. Hundley said he "thought as much."
On October 26, Attorney Sheppard, counsel for the In-
ternational , telephoned Hundley , requesting him to
"reconsider" the Company' s position on limiting plant ac-
cess to the business representatives. Hundley stated that
he did not believe "the Company was going to change its
position," but if it did he would let him know.
On December 23, Charles Hamilton, the newly elected
steward, received from Respondent a letter restating the
restricted access policy as contained in the September 7
letter to Braun (supra), except that it included the conces-
sion verbally made to Braun that the business representa-
tive could park his automobile at a designated place
within the blast furnace area. About 2 weeks later,
Charles Hamilton and the newly elected Union President
Phelps met with Company Officials Hundley, Christy,
and Hans. When Charles Hamilton pointed out that his
relationship with the Company during his previous term
as business representative (1961-63) "had been good,"
Hundley agreed and stated the restrictions were not in-
tended as "a personal slap" against him. Hundley again
said that the new restrictions resulted from Richard
Hamilton's (Charles' brother) instigating a slowdown.
Charles replied that he "couldn't account" for Richard's
action, nor would the Union "condone" conduct of the
kind he attributed to Richard, and asked that he be al-
lowed to enter the plant during evening shifts so that he
could attend to "problems" that might arise . Hundley
again said that while he "might consider letting you
[Charles Hamilton ] into the plant ... we are not assured
that you will always be in office." Hundley went on to say
that "even if we wanted to, these N.L.R.B. charges have
been filed and our position has to remain the same."
Around February 9, after issuance of the complaint
herein , Charles Hamilton telephoned Hundley, asking
whether they "could get together" on the dispute before
the hearing. Hundley stated that if permitting the business
representative to drive about the plant "would settle" the
matter, they could "probably" resolve the dispute. No
agreement was reached and on or about February 14,
Hamilton and Union President Phelps again conferred
with Hundley and other Company officials. Hundley re-
peated his offer to permit the business representative to
use his car in and about the blast furnace plant during the
day turn. Claiming that "driving around was immaterial"
to him, Charles Hamilton replied that the Union
"couldn 't settle for anything less " than the unlimited right
of access it had always had.
In the meantime, the Union sought a solution to the
problem by increasing and training its shop stewards. On
January 16, it posted a notice at the plant requesting the
employees to select a steward for each department. Later
that month , Charles Hamilton and Union President
Phelps drove to Akron, Ohio, to discuss with Interna-
tional officials the creation of a "steward school " to train
stewards. Convinced of the need of "responsible
stewards " to handle grievances on the two night shifts,
the International's president approved creation of such
school.
E. Conclusions
1. Respondent does not dispute the settled proposition
that where, as here, the employees have a collective-bar-
GRANITE CITY STEEL CO.
gaining representative, the employer may not effect a
change in "wages . . . or other conditions of employment"
without first affording the bargaining representative an
opportunity to discuss and negotiate concerning the
change. Sections 8(a)(5), 8(d), and 9(a) of the Act;
N.L.R.B. v. Katz, 369 U.S. 736, 747. The major question
here is whether Respondent's September 7 action in cur-
tailing the business representative's access to the blast
furnace plant constituted a change in "conditions of em-
ployment" as to which Respondent was required to notify
and bargain with the Union. Respondent's basic position
(Br. p. 12) is that "access to the plant by the business
agent [was] a privilege, not a right set forth in the collec-
tive-bargaining agreement; therefore, modification of the
privilege was not an unfair labor practice within the
meaning of the Act."
As observed in East Bay Union of Machinists, Local
1304 (Fibreboard Paper Products Corp.) v. N.L.R.B.,
322 F.2d 411, 414 (C.A.D.C.), affd. 379 U.S. 203, Con-
gress "of necessity framed in the broadest terms possi-
ble" the scope of the statutory duty to bargain. See also
N.L.R.B. v. Frontier Homes Corporation, 371 F.2d 974,
979-980 (C.A. 8), affg. 153 NLRB 1070. The fact that a
particular working condition or benefit is not expressly
embodied in the governing collective agreement is im-
material where satisfactorily established by practice or
custom. See Citizens Hotel Company d/b/a Hotel Texas,
138 NLRB 706, 712-713, enfd. 313 F.2d 708 (C.A. 5);
Frontier Homes Corporation, 153 NLRB 1070,
1072-73; Central Illinois Public Service Company, 139
NLRB 1407, 1415, enfd. 324 F.2d 916 (C.A. 7). This is
no less true where the practice is denominated a
"privilege," voluntarily institued or bestowed by the em-
ployer. Central Illinois Public Service Co., supra, 139
NLRB at 1415. "Any change in the established practices
requires that the employer notify the bargaining represent-
ative and submit the proposed change to negotiation.
The unilateral alteration of this established condition of
employment is a proscribed refusal to bargain under the
Act." N.L.R.B. v. Frontier Homes Corp., supra, 371
F.2d at 980.
A grievance procedure is a mandatory subject of bar-
gaining and, hence, a unilateral change therein likewise
constitutes a refusal to bargain. As the Board stated in
Bethlehem Steel Company, 136 NLRB 1500, 1502, enfd.
320 F.2d 615,620 (C.A. 3):
A method for presenting and adjusting grievances
which deal with "wages, hours, and other terms and
conditions of employment" is manifestly related to
those matters. In accord with Board and court deci-
sions, we find that ... a grievance procedure [is a
matter] related to "wages, hours, and other terms
and conditions of employment" within the meaning
of Section 8(d) of the Act and, therefore, [is a] man-
datory subject for collective bargaining.
See also Westinghouse Electric Corporation, 141 NLRB
733, 735-736, reversed on other grounds 325 F.2d 126
(C.A. 7); Motoresearch Company and Kems Corpora-
tion, 138 NLRB 1490, 1492. For reasons hereafter
shown, I find that Respondent unilaterally altered the
established existing grievance procedure, in violation of
Section 8(a)(5) and (1) of the Act.
2. Step one of the contractual five-step grievance
procedure provides that before the filing of a grievance in
315
writing (step two) the "Union Representative may take
the grievance up with the foreman" within a specified
period. The record shows that it was traditionally the
business agent, a full-time paid union employee, who
represented grievants at this stage.' 6 The record further
shows that for 15 years prior to September 7, six succeed-
ing business representatives were "routinely and auto-
matically" accorded "unlimited" access to all areas of the
blast furnace for the purpose of resolving grievances with
the foreman on the spot-as part of the first grievance
step. This right of access comprehended the right to visit
employees on all three shifts and to move about the plant
by automobile, so long as the business agent did not inter-
fere with production or management direction. The right
was in every sense a real and substantial benefit, enabling
employees of all shifts to receive expeditious assistance
and advice from independent, experienced union agents.
It also enabled employees to process their grievances on
their work shifts, without having to make special trips at
their own expense for that purpose during off-duty hours.
On September 7, Respondent, without prior notice to and
consultation with the Union, informed the business agent
that he would thenceforth be confined to weekday visita-
tion, thereby precluding his entry into the plant on the
two night shifts and on Saturdays and Sundays; and
thereby also precluding him from on-the-job communica-
tion with any of the 500 employees (of a total work force
of 900) on those shifts. Respondent also informed the
business agent that the access still permitted in day hours
would be "on foot," thereby precluding his driving an au-
tomobile directly to the jobsites. These actions substan-
tially reduced and impaired the employees' representa-
tion rights.
In my view, Respondent's action was tantamount to a
unilateral modification of the established contractual
grievance procedure as historically administered and fol-
lowed by the parties, in which procedure unlimited on-
the-job access by the business agent to all shifts for pur-
poses of processing grievances (at the first step of the
grievance procedure) was an integral part. It follows that
Respondent's action constituted a unilateral change in
working conditions, in violation of Section 8(a)(5) and (1)
of the Act. See Westinghouse Electric Corp.; Mo-
toresearch Company and Kems Corp.; and Bethlehem
Steel Company cases, supra.
3. Respondent contends that "there is no violation of
the Act, because the plant access [still] allowed the busi-
ness agent is entirely reasonable." Analogizing to cases
such as N.L.R.B. v. Babcock & Wilcox Company, 351
U.S. 105, and N.L.R.B. v. Lake Superior Lumber Cor-
poration, 167 F.2d 147 (C.A. 6), it argues that it was not
legally obligated to provide plant access for nonemployee
union officials, so long as employees could reasonably be
reached by alternative channels of communication, citing
as examples communication through stewards and
through the formal contractual grievance procedure. In
addition, it points out that its new access policy afforded
the business agent free access on the day turn, that the
business agent could gain access during night and
weekend shifts in emergencies, and that his "patrolling
the plant" by automobile was unessential since his parked
car "is just a few moments' walk from 90 percent of the
Union members on the shift."
19 Although stewards have participated in processing grievances at the
initial stage , the business agent was involved in 90 percent of the cases.
316 GRANITE CITY STEEL CO.
Respondent itself recognizes the substantial distinction
between the Babcock & Wilcox line of cases, which deal
with right of access to organize, and the present case
which deals with the right of access for purposes of ad-
ministering a contractual grievance clause. The first situa-
tion involves a balancing of employer rights with those of
employees in need to inform themselves on self-organiza-
tional matters. The second-this case-involves an al-
ready established bargaining relationship, indeed a
balancing of rights struck by the parties themselves by
contract, practice, and custom. In the latter situation the
employer is under a statutory mandate to refrain from
taking unilateral action destructive of the bargaining rela-
tionship. Unilateral action-whether it be in regard to a
working condition such as grievance procedure or mat-
ters of monetary value such as wages or bonuses-is in
derogation of the statutory representative's bargaining
authority and destructive of the bargaining process. And
whether or not there is a violation "do[es] not rest on a
basis of improper motivation." Fibreboard Paper
Products Corp. v. N.L.R.B., supra, 322 F.2d at 414.
4. Nor is Respondent's unilateral action legally justified
because it may have been grounded on misconduct of one
of the Union's business agents -Richard Hamilton who
instigated a slowdown. While under the existing un-
derstanding on access (see Respondent's December 27,
1963, letter to Richard Hamilton conditioning plant ac-
cess on production nondisruption, etc.), the offender's
misconduct would have justified restriction of his right to
access, such misconduct did not justify unilateral
wholesale limitation of such right for all business agents.
There is no showing that the misconduct complained of
was other than personal to the business agent engaging
therein."
This is not to say that the statute freezes Respondent
to the existing practices on plant access. It is to say that
prior to effecting changes therein it is under a duty to give
its employees' statutory representative an opportunity to
bargain concerning proposed changes. The bargaining
representative is entitled to "an opportunity to present ar-
guments to the employer to dissuade him from effecting
the change, and also an opportunity to propose alterna-
tives or compromises which might moderate the change
so as to accommodate the interests of the employees as
well as of the employer." Kinard Trucking Company,
Inc., 152 NLRB 449, 450.
5. In reaching the conclusions herein, I have not over-
looked the fact that subsequent to its unilateral action
Respondent met with the Union, discussed the changes,
and bargained thereon. This factor, however, "did not
eradicate the initial violation inherent in its unilateral ac-
tion. Save in special circumstances not present here, the
bargaining philosophy of the Act requires that good-faith
negotiations precede rather than follow changes in bar-
gainable conditions of employment." Central Illinois
Public Service Company, 139 NLRB 1407, 1417, enfd.
324 F.2d 916 (C.A. 7). Clearly, talking about a decision
after it is a fait accompli, is not the same as bargaining
about it. Town & Country Manufacturing Company,
Inc., 136 NLRB 1022, 1030, enfd. 316 F.2d 846 (C.A.
5); Robert Abbott Publishing Company, 139 NLRB
1328, 1329; Langlade Veneer Products Corporation, 118
NLRB 985, 988. This is particularly true where, as here,
Respondent's entire approach in the belated bargaining
was predicated on the fixed and inflexible, but erroneous,
belief that plant access by business representatives con-
stituted a "privilege," revocable at will.
I conclude that Respondent's September 7 unilateral
change in the existing grievance practices and procedure,
as customarily followed and applied by the parties, con-
stituted a unilateral change in employment conditions
and, hence, a refusal to bargain collectively within the
meaning of Section 8(a)(5) and (1) of the Act.
111. THE REMEDY
Having found that Respondent violated Section 8(a)(5)
and (1) of the Act by unilaterally changing existing
grievance practices and procedure , I shall recommend
that it cease and desist therefrom and from unilaterally
changing its employees ' terms and conditions of employ-
ment without prior consultation and bargaining with the
majority bargaining representative . The Recommended
Order will require Respondent to rescind the described
unlawful unilateral changes and, if Respondent still
desires such changes, to bargain with the Union with
respect thereto.
In making the foregoing recommendations , I am cogni-
zant that Respondent met and negotiated with the Union
concerning rescission of the unilateral action . But, as al-
ready noted , bargaining after the fact is not good-faith
compliance with the statute ; nor did such bargaining
operate to expunge the effects of the unfair labor prac-
tices found . For one thing , such bargaining operates from
a position of change which has already been made , rather
than from a position of whether the change should be
made . The statute requires that an employer enter
negotiations with an open mind, unencumbered , as here,
by a preconceived and precommitted position that a man-
datory bargaining subject is only a "privilege ," solely
within its discretion and revocable at will. Nor am I per-
suaded that Respondent 's postunilateral action negotia-
tions met the standards of good-faith bargaining in other
respects . Thus, the evidence reveals that in addition to
the unilateral action taken , Respondent threatened, or at
least expressed an inclination , to take other restrictive
unilateral action , including unilateral revocation of the
three Union officials' right to unlimited access expressly
provided for in a supplement to the collective agreement.
It also expressed reluctance to involve its foremen in
grievance processing, although the written contractual
grievance clause (step one) specifically contemplates his
participation in the grievance procedure.
Accordingly " in accord with the established Board pol-
icy of restoring working conditions unilaterally changed"
(Dickten & Masch Mfg. Company, 129 NLRB 112,113)
and reestablishing "the prior situation . . . until legally
changed" (Kinard Trucking Company, Inc., 152 NLRB
449, 452), the Order will require Respondent to bargain
in good faith concerning the change in grievance practices
17 Indeed, the 1 day (June 25) slowdown instigated by Richard Hamil-
ton did not even result in withdrawal of Richard's right of access. Re-
spondent's July 6 letter to Richard Hamilton informed Richard only that
"[i]f, in the future, there is any repetition of an incident such as occurred
on June 25 the Company is prepared to . [d]eny you admission to
the Company premises except under the special terms and conditions as
established by the Company " Thus, Respondent failed to take action
against the culprit, the only business representative about whom it had
complained.
GRANITE CITY STEEL CO. 317
after restoration of such practices, should it still desire to
institute such change."
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All employees in the blast furnace department of
Respondent except superintendents, foremen in charge
of any class of work, clerical workers, technical experts,
chemists who are not engaged primarily in routine analy-
sis, police officers, brick masons, and chauffeurs em-
ployed at its Granite City, Illinois, plant, constitute a unit
appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act.19
4. At all times material herein, the Union has been the
exclusive bargaining representative of the employees in
the aforesaid unit within the meaning of Section 9(a) of
the Act.
5. By unilaterally changing established and existing
grievance procedure and practices, without prior con-
sultation and bargaining with the Union, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
[Recommended Order omitted from publication.]
18 See also Citizens Hotel Company dlbla Hotel Texas, 138 NLRB
706, 714, 715, enfd. 313 F.2d 708 (C.A. 5); Frontier Homes Corporation,
153 NLRB 1070, 1088, enfd. 371 F.2d 974 (C.A. 8); Westinghouse Elec-
tric Corporation, 141 NLRB 733, 737, reversed on older grounds 325
F.2d 126 (C.A. 7). The present case is distinguishable from Central Il-
linois Public Service Co., 139 NLRB 1407, 1419, enfd. 324 F.2d 916
(C.A. 7), where the Board did not find it necessary to enter the usual
remedy. Among other things, the Trial Examiner in that case found that
the postunilateral change bargaining was in good faith, and he expressed
the conviction that bargaining after a Board order "would have lead to the
same impasse" as that reached in the postunilateral action bargaining. But
cf. Industrial Union of Marine and Shipbuilding Workers AFL-CIO
(Bethlehem Steel Co.) v. N.L.R B., 320 F.2d 615, 621 (C.A 3).
11 There is no dispute as to the appropriate unit.