Ground Breakers, Inc.

National Labor Relations Board - Board Decisions

May 30, 1986

280 N.L.R.B. 146 (N.L.R.B. 1986)

146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ground Breakers , Inc. and United Mine Workers of
America and United Mine Workers of America,
District 31. Cases 6-CA-17898 and 6-CA-
18001
30 May 1986
DECISION AND ORDER
By MEMBERS DENNIS, BABSON, AND
STEPHENS
On 31 July 1985 Administrative Law Judge
James L. Rose issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel and the Charging Party
filed answering briefs.
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, I and
conclusions2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Ground
Breakers , Inc., Clarksburg, West Virginia, its offi-
cers, agents, successors , and assigns, shall take the
action set forth in the Order.
' The record shows that Willoughby and Harrison filed their first
grievance on 27 December 1984 , not 21 December as the judge incor-
rectly stated.
2 In adopting the Judge's conclusion that the Respondent unlawfully
refused to provide the information the Union requested , we rely only on
the Board 's decision in United Technologies Corp, 274 NLRB 504 (1985),
setting forth an employer 's obligation to provide information relevant to
a union's evaluation of employee grievances . We find it unnecessary to
pass on the judge's discussion of whether arbitration clauses survive expi-
ration of collective-bargaining agreements.
Matthew M. Franckiewicz, Esq., for the General Counsel.
Robert M. Steptoe, Esq., and Richard M. Yurko, Esq.
(Steptoe & Johnson), of Clarksburg, West Virginia, for
the Respondent.
DECISION '
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This
matter was tried before me at Clarksburg, West Virginia,
on 19 April 1985, on the General Counsel's complaint'
which alleged that the Respondent refused to give cer-
tain requested information to United Mine Workers of
' The charge in Case 6-CA-17898 was filed 22 January 1985. The
charge in Case 6-CA-18001 was filed 21 February 1985. The consolidat-
ed complaint issued 8 March 1985.
America and United Mine Workers of America, District
31 (the Union), and refused to meet with the Union's
designated agent in connection with a grievance pro-
ceeding, thereby violating Section 8(a)(5) of the National
Labor Relations Act, 29 U.S.C. § 151 et seq.
The Respondent generally denied that it committed
any unfair labor practices. In addition, the Respondent
contends that that inasmuch as the information was re-
quested subsequent to the expiration of the collective-
bargaining agreement between it and the Union, it had
no obligation to furnish the information. The Respondent
further contends that the collective-bargaining agreement
under which the grievance in question was processed
specifically limits participation at that particular step to a
committee of employees. Therefore, it was appropriate
for the Respondent to refuse to allow the attendance or
participation of a nonemployee union representative.
On the record as a whole, including my observation of
the witnesses , briefs, and arguments of counsel , I issue
the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
The Respondent is a West Virginia corporation en-
gaged in the construction industry doing heavy earth
work, heavy excavation, pipe laying, road work, and rec-
lamation . Some of its work is performed in connection
with coal mine operations. Annually the Respondent per-
forms services valued in excess of $50,000 for enterprises,
such as Consolidated Coal Company, which themselves
meet the Board's direct inflow and outflow jurisdictional
standards.
The Respondent admits, and I find, that it is an em-
ployer engaged in interstate commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is admitted to be, and I find is, a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
The facts here are largely undisputed. As indicated,
the Respondent is a small construction company doing
some, but not all, of its business in connection with coal
mine operations . In June 1979 , and again in February
1982, the Respondent signed the collective-bargaining
agreement between the Union and the Association of Bi-
tuminous Contractors, a multiemployer bargaining asso-
ciation representing employers engaged in coal mine con-
struction. Though not a member of the Association, the
Respondent became a party to the Association's contract
with the Union and during the material period its em-
ployees were represented by the Union and covered
under the terms and conditions of those contracts.
Though somewhat ambiguous from the record, the
parties seem to agree that the Respondent 's employees
were covered under the collective-bargaining agreement
only for "union" jobs. For construction projects on
280 NLRB No. 14
GROUND BREAKERS, INC.
which the Respondent was the successful bidder but not
within the work jurisdiction as outlined in the collective-
bargaining agreement , its terms would not apply. Thus,
employees would be paid a wage rate dependent on
whether the project was "union" or "non-union," and
benefits would or would not be paid to the various trust
funds on their behalf.
The most recent collective-bargaining agreement to
which the Respondent was a party expired on 30 Sep-
tember 1984. To the date of the hearing, the Union had
not approached the Respondent for purposes of negotiat-
ing or executing any kind of a successor agreement.
Robert Willoughby was first employed by the Re-
spondent in early 1982 as a member of the bargaining
unit, and thereafter worked on various projects for the
Respondent until he was laid off in May 1984.2
After Willoughby was laid off for what he was told
was lack of work, he learned that the Respondent was
doing other jobs and, as a result, came to the conclusion
that he had been treated unfairly by the Respondent.
Thus, in December 1984, Willoughby went to the union
hall with fellow employee Roy Harrison and talked to
Business Agent Ricky Yanero. Among other things, Wil-
loughby told Yanero that on a project which he under-
stood was to have been covered under the collective-bar-
gaining agreement, he was not paid union scale.
Yanero made a brief investigation, checking docu-
ments submitted to the Union by the Respondent, and
concluded that sufficient questions were raised concern-
ing whether the Respondent had breached the collective-
bargaining agreement to investigate further. Thus, on 19
December 1984, Yanero wrote the Respondent's presi-
dent, John P. Keeley III, and requested certain informa-
tion concerning employees of the Respondent during
1984, the number of hours they worked on specific
projects, and the like.
On 16 January 1985, Keeley responded, stating that
the Respondent had performed no work at certain mines
named by Yanero in his letter and, further, that as to the
Blacksville project, "work was not performed under the
jurisdiction of United Mine Workers of America or
under the 1981 contract."
Finally, Keeley stated that because the 1981 contract
had expired, the information requested by Yanero was
not "relevant to any inquiry by you."
Yanero responded to this letter with one dated 21 Jan-
uary 1985, again requesting certain information and en-
closing a second grievance dated 18 January, filed by
Willoughby and Harrison. Willoughby and Harrison had
filed a grievance on 21 December which had not been
processed because, apparently, Respondent's counsel had
advised that the Respondent was under no obligation to
do so.
There was no answer by the Respondent to Yanero's
further demands of 21 January. However, a grievance
meeting was arranged by Keeley for 7 February under
the second step of the grievance procedure contained in
Y On p 22 of the transcript there is an indication that he worked until
December 1964, but this is in error. The transcript is corrected to read
December 1983.
147
the expired collective-bargaining agreement (the first
step having apparently been waived as not applicable).
By separate letters dated 30 January, Keeley advised
Willoughby and Harrison that the grievance meeting
would be held on 7 February at the Respondent's shop.
On 7 February, Willoughby and Harrison appeared with
Yanero immediately prior to the scheduled time for the
meeting. Keeley, in effect, told Yanero that he would not
allow Yanero on the premises nor allow Yanero to par-
ticipate inasmuch as step 2 of the grievance procedure
provides only for a meeting between a committee of em-
ployees and a representative of management . After some
discussion concerning this, Yanero, along with Wil-
loughby and Harrison, left.
The meeting then proceeded with Edgar Sions, Danny
Hedrick, and James Straight comprising the employee
committee, and John Keeley representing the Respond-
ent. The Respondent argued that the grievance was un-
timely, to which the employee committee agreed and the
grievance was denied . Inasmuch as both parties agreed
on the disposition of the grievance, no further proceed-
ings were taken concerning the claim of Willoughby and
Harrison that they had not been recalled to certain
named projects in May, June, July, August, and Septem-
ber 1984, and were entitled to backpay.
B. Issues
The principal issues in this matter are:3
1. Whether the Union was entitled to the information
requested, notwithstanding that at the time of the request
the collective-bargaining agreement which the Union
sought to police had expired.
2. Whether the Respondent was entitled to prohibit
the presence and participation in step 2 of the grievance
procedure of a nonemployee business representative for
the Union.
C. Analysis and Concluding Findings
1. Refusing to furnish information
In United Technologies Corp., 274 NLRB 504, 506
(1985), the Board outlined its rule concerning an employ-
er's obligation to give requested information to the
union:
It is well established that an employer has an ob-
ligation to supply requested information which is
reasonably necessary to the exclusive collective-bar-
gaining representative 's responsibilities . NLRB v.
Acme Industrial Co., 385 U.S. 432 (1967); NLRB v.
Truitt Mfg. Co., 351 U.S. 149 (1956). Included in
such responsibilities is the processing and evaluating
of employee grievances . The Board has held that an
3 Though denying that the Union was the duly designated representa-
tive of its employees , the Respondent presented no facts nor offered any
argument that the Union's status had changed. The Union had been rec-
ognized by the Respondent in two collective -bargaining agreements.
There are no facts to rebut the presumption that the Union continued in
its representative capacity Accordingly, I conclude that the Union con-
tinued its status as the representative of employees of the Respondent
within the meaning of Sec. 9(a) of the Act See, e.g, Stratford Visiting
Nurses Assn ., 264 NLRB 1026 ( 1982).
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer is obligated to furnish information re-
quested for the purpose of handling grievances.
United-Carr Tennessee, 202 NLRB 729 (1973);
Safeway Stores, 236 NLRB 1126 (1978). An actual
grievance need not be pending at the time of the in-
formation request, nor must the information request-
ed clearly dispose of the grievance. Ohio Power Co.,
216 NLRB 987, 991 (1975); Los Angeles Chapter,
Sheet Metal Contractors, 246 NLRB 886, 888 (1979).
The standard for the union 's entitlement to the in-
formation requested is a liberal, discovery-type test
as to whether the information bears upon the
union's determination to file a grievance or is help-
ful in evaluating the merits of the grievance and the
propriety of pursuing the grievance to arbitration.
Los Angeles Chapter, Sheet Metal Contractors, supra.
The information requested by Yanero in this matter
clearly falls within the parameters of the Board's analy-
sis; and , but for the fact that the collective-bargaining
agreement had expired prior to the time the Union re-
quested the information, there would be little argument
that the Respondent was required to furnish it. Indeed,
the Respondent does not contend that the material re-
quested by the Union is not ordinarily of the sort re-
quired to be furnished.
In Nolde Bros v. Bakery Workers Local 358, 430 U.S.
243 (1977), the Supreme Court held that the arbitration
clause of a collective -bargaining agreement survives its
expiration. Nolde dealt with severance pay, a matter
which could have become an issue only on the expiration
of the collective-bargaining agreement (a fact which the
Respondent contends distinguishes Nolde from the in-
stant situation). Nevertheless, it is clear from the Su-
preme Court's decision that the procedure by which the
rights of parties under a collective-bargaining agreement
are defined and resolved survives the expiration of the
agreement.
If ending the collective-bargaining agreement auto-
matically extinguished a party's duty to arbitrate griev-
ances arising thereunder , then an anomalous situation
could result. As the Chief Justice noted, "Carried to its
logical conclusion that argument would preclude the
entry of a post-contract arbitration order even when the
dispute arose during the life of the contract but arbitra-
tion proceedings had not begun before termination. The
same would be true if arbitration processes began but
were not completed, during the contract' s term."
Clearly then, under Nolde, a party's duty to abide by
the mechanism for resolving grievances does not end
with expiration of the contract. And, it appears in this
matter that the Respondent , though arguing to the con-
trary, concedes this point inasmuch as the Respondent in
fact did meet pursuant to the grievance procedure con-
cerning the Willoughby and Harrison grievance of 18
January, notwithstanding that the collective -bargaining
agreement expired several months before.
If the grievance resolution provisions of the collective-
bargaining agreement survive its expiration , it necessarily
follows that the Union's right to information to deter-
mine whether grievances are meritorious and/or whether
arbitration should be pursued, also survives.
It may well be, as contended by the Respondent, that
on the merits, the grievance of Willoughby and Harrison
was untimely. Therefore, other grievances would have
been untimely and arbitration by the Union would not
have been successful . But the possible , even probable,
outcome is immaterial to the issue of whether the Re-
spondent is required to furnish information so the Union
can perform its function of representing employees who
file grievances or who might file grievances . The Re-
spondent's duty under the Act is not relieved by show-
ing, after the fact , that the Union might not have pre-
vailed had it been given the information in a timely fash-
ion. Further, the Respondent's defense on the merits was
timeliness . Because there are exceptions to such defenses,
it is far from certain that the Respondent would have
been successful. In any event, by denying the informa-
tion to the Union, the process was thwarted.
Accordingly, I conclude that by denying the Union's
request for information , the Respondent violated its bar-
gaining obligations under Section 8(a)(5) of the Act.
2. Denying Yanero's attendance at the grievance
meeting
Article XXI, "Settlement of Disputes ," of the most
recent collective -bargaining agreement reads, in material
part:
Section (a) Grievance Committee
A committee consisting of no more than three (3)
employees shall be elected at each project of each
Employer by the employees of that Employer at
that project. The duties of the grievance committee
shall be confined to the adjustment of disputes aris-
ing out of this Agreement that the project manage-
ment or the employee or employees fail to adjust.
Section (b) Grievance Procedure
Should differences arise between the mine con-
struction workers and the Employer as to the mean-
ing and application of provisions of this Agreement,
or should differences arise about matters not specifi-
cally mentioned in this Agreement, or should any
local trouble of any kind arise at the project, an ear-
nest effort shall be made to settle such differences at
the earliest practical time.
Disputes arising under this agreement shall be re-
solved as follows:
2. If no agreement is reached between the em-
ployee and his foreman, then within five (5) work
days of the foreman's decision, the grievance shall
be presented to the Employer in writing on the
standard grievance form and shall be taken up by
the grievance committee and a representative of
management.
If the parties then are unable to agree, step 3 provides
that a representative of the Union will meet with a repre-
sentative of the Employer.
GROUND BREAKERS, INC.
Inasmuch as step 2 provides for consideration of a
grievance by the employee committee and step 3 pro-
vides for the intervention of a designated agent of the
Union, the Respondent argues that the contract therefore
prohibits the presence of a union agent at a step 2 pro-
ceeding.
In Native Textiles, 246 NLRB 228, 229 (1979), the
Board held, "The right of employees to designate and to
be represented by representatives of their own choosing
is a basic statutory policy set forth in Section 7 of the
Act, and a fundamental right guaranteed employees by
Section 7 of the Act." Thus, for an employer to deny
employees this right by invoking the terms of the collec-
tive-bargaining agreement , it must contain "a clear and
unmistakable waiver of the Union's right to designate
whomever it desires as its representatives for processing
grievances." Absent such a clear and unmistakable
waiver, an employer's refusal to meet with those desig-
nated by the union in connection with grievance process-
ing is violative of Section 8(a)(5) of the Act.
In this case, the language relied on by the Respondent
is not a clear and unmistakable waiver. Step 2 simply
states that the employee committee will meet with a rep-
resentative of the Employer and they will make a deci-
sion concerning disposition of the grievance. There is
nothing in step 2 which prohibits the presence of a non-
employee representative of the Union.
The Respondent, in effect, argues that by naming the
grievance committee, the parties necessarily meant to ex-
clude all others including the nonemployee representa-
tive of the Union. Such an argument scarcely rises to the
level of "clear and umistakable." As the Board noted in
Native Textiles, we are dealing here not so much with a
matter of contract interpretation as with a matter of em-
ployees' rights under Section 7 of the Act. An employ-
ee's right to be represented by a representative of his
own choosing should not be so lightly denied. Here,
indeed, had Yanero been allowed to attend the grievance
meeting, it is certainly more than conceivable that his lay
opinion concerning the timeliness of the grievance within
the terms of the collective-bargaining agreement might
have caused the employee committee to have reached a
result different than simply agreeing with Keeley.
In any event, since the contract does not specifically
limit the presence of a nonemployee union representative
at a step 2 meeting, there was no waiver and I conclude
that by refusing attendance to Yanero at the 7 February
meeting , the Respondent violated Section 8(a)(5) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices found above, occurring in
connection with the Respondent's business, have a close,
intimate, and substantial relationship to trade , traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof within the meaning of Section 2(6)
and (7) of the Act.
V. THE REMEDY
149
Having concluded that the Respondent engaged in the
unfair labor practices found above, I shall recommend
that it be ordered to cease and desist therefrom and take
certain appropriate action designed to effectuate the poli-
cies of the Act. I shall recommend that the Respondent
be ordered to furnish the Union the information request-
ed by it in its letters of 19 December 1984 and 21 Janu-
ary 1985, and to re-refer to step 2 of the grievance pro-
cedure under the 1981 collective -bargaining agreement
the 18 January 1985 grievance of Robert Willoughby and
Roy Harrison, allowing those employees to designate to
represent them a nonemployee representative of the
Union, and to continue to process this grievance through
the settlement of disputes procedure of the collective-
bargaining agreement.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
ORDER
The Respondent, Ground Breakers, Inc., Clarksburg,
West Virginia, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain with United Mine Workers of
America, and United Mine Workers of America, District
31, as the exclusive bargaining representative of employ-
ees in the following bargaining unit by refusing to fur-
nish it with information that it requested which is rele-
vant and reasonably necessary to the processing of em-
ployee grievances:
All employees engaged in coal mine construction
work covered by the National Coal Mine Construc-
tion Agreement between the United Mine Workers
of America and the Association of Bituminous Con-
tractors; excluding supervisors, foremen, assistant
foremen, office clerks, guards, engineering and tech-
nical forces and timekeepers.
(b) Refusing to allow grievants the right to have
present at any stage of the processing of their grievance
a nonemployee representative of the Union.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies,of the Act.
(a) Furnish to the Union all information requested in
its letters of 19 December 1984 and 21 January 1985.
(b) Post at its office at Clarksburg, West Virginia,
copies of the attached notice marked "Appendix."6
4 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
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 Nation-
Continued
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copies of the notice , on forms provided by the Regional
Director for Region 6, after being signed by the Re-
spondent 's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form , join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to bargain with United Mine
Workers of America, and United Mine Workers of
America, District 31, by refusing to furnish the Union
with information relevant and necessary to the process-
ing of employee grievances under the collective-bargain-
ing agreement.
WE WILL NOT refuse to bargain with United Mine
Workers of America, and United Mine Workers of
America, District 31 , by refusing to allow employees to
designate a nonemployee representative of the Union to
be present at any step of the grievance procedure.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL furnish United Mine Workers of America,
and United Mine Workers of America, District 31, such
information as it requested by letters of 19 December
1984 and 21 January 1985.
GROUND BREAKERS, INC.