Lehigh Portland Cement Co.

National Labor Relations Board - Board Decisions

Jan 5, 1988

287 N.L.R.B. 978 (N.L.R.B. 1988)

978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Lehigh Portland Cement Company and Cement,
Lime, Gypsum and Allied Workers Division,
International Brotherhood of Boilermakers,
Iron Shipbuilders, Blacksmiths , Forgers and
Helpers. Case 10-CA-21498
ployer's being allowed to unilaterally establish a
procedure in which it deals directly with employ-
ees.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law5 January 1988
DECISION AND ORDER
BY MEMBERS BABSON, STEPHENS, AND
CRACRAFT
On 13 May 1987 Administrative Law Judge
Philip P. McLeod issued the attached decision. The
Respondent filed exceptions and a supporting brief.
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 brief and has
decided to affirm the judge's rulings, findings, i and
conclusions and to adopt the recommended Order
as modified.'
The judge found that the Respondent violated
Section 8(a)(5) and (1) of the Act by adhering to its
unilaterally implemented contract proposal and re-
fusing to meet with the union grievance committee
unless that committee was composed of no more
than three permanently named employee commit-
tee members. The judge reasoned that because the
Respondent instituted its final proposal before bar-
gaining with the Union in good faith to impasse, in
violation of Section 8(a)(5), the Respondent's ad-
herence to the terms of this proposal violated Sec-
tion 8(a)(5) and (1) of the Act. We agree.
Because we affirm these findings, we find it un-
necessary to pass on the judge's discussion that,
even had the parties reached a valid impasse in ne-
gotiations, the Respondent could not unilaterally
impose on the Union the size and makeup of its
grievance-handling committee. Thus, we do not ad-
dress the issues of whether the Respondent's pro-
posal unlawfully interferes with the Union's right
to designate its own representative or whether al-
lowing the Employer to unilaterally exclude the
Union's International representative from the
second-step grievance meetings results in the Em-
' In affirming the judge's decision we find it unnecessary to rely on his
discussion in sec IV, A of his decision, concerning whether the merger
of the Cement Workers with the Boilermakers resulted in changes so sub-
stantial or significant as to create a different entity thereby raising a ques-
tion concerning representation In a related case, Lehigh Portland Cement
Co, 286 NLRB 1366 (1987), involving the same Cement Workers-Boller-
makers merger and the same parties, the Board found that the Respond-
ent was estopped from challenging the merger In that case the Board
also adopted the judge's finding that no impasse existed at the time the
Respondent unilaterally implemented its last offer and, accordingly, that
such conduct violated Sec 8(a)(5) and (1) of the Act
2 The recommended Order has been modified to conform more closely
to the violation found, as alleged in the complaint
4:
"4. By adhering to its unlawfully implemented
contract proposal and refusing to meet with the
union -appointed grievance committee unless that
committee is composed of no more than three per-
manently named employee-members , the Respond-
ent has violated Section 8(a)(5) and (1) of the Act."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Lehigh Portland Cement Company,
Leeds, Alabama, its officers, agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraph 1(a).
"(a) Refusing to meet, pursuant to its unilaterally
implemented contract proposal, with the union-ap-
pointed grievance committee unless that committee
is composed of no more than three permanently
named employee-members."
2. Substitute the attached notice for that of the
administrative law judge.
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, loin, 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 meet, pursuant to our
unilaterally implemented contract proposal, with
the union-grievance committee unless it is com-
posed of no more than three permanently named
employee members.
287 NLRB No. 96
LEHIGH PORTLAND CEMENT CO 979
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
LEHIGH PORTLAND CEMENT COMPA-
NY
Virginia L . Jordan, Esq ., for the General Counsel.
Larry J. Rappoport, Esq (Kleinbard, Bell & Brecker), of
Philadelphia , Pennsylvania , for the Respondent
Michael J. Stapp, Esq . (Blake & Uhlig , PA.), of Kansas
City, Kansas, for the Charging Party
DECISION
STATEMENT OF THE CASE
PHILIP P MCLEOD, Administrative Law Judge I
heard this case on 21 January 1987 in Birmingham, Ala-
bama. The charge that gave rise to this case was filed on
28 January and amended on 25 February 1986 by
Cement, Lime, Gypsum and Allied Workers Division,
International Brotherhood of Boilermakers , Iron Ship-
builders, Blacksmiths , Forgers and Helpers (the Union),
against Lehigh Portland Cement Company (Respondent).
On 11 September 1986, a complaint and notice of hear-
ing issued , which alleges, inter alia, that Respondent vio-
lated Section 8(a)(1) and (5) of the National Labor Rela-
tions Act (the Act), first by refusing to meet with the
union-appointed grievance committee unless that com-
mittee was composed of no more than three permanently
named employee committee members, and second by
unilaterally and without notice or consultation with the
Union refusing to allow union representatives access to
Respondent's premises in order to investigate grievances
In its answer to the complaint, Respondent admitted
certain allegations including the filing and serving of the
charge, its status as an employer within the meaning of
the Act; the status of Cement, Lime , Gypsum and Allied
Workers Division , International Brotherhood of Boiler-
makers, Iron Shipbuilders , Blacksmiths , Forgers and
Helpers as a labor organization within the meaning of
the Act, and the appropriate bargaining unit . Respondent
denied having engaged in any conduct that would consti-
tute an unfair labor practice within the meaning of the
Act.
At the trial herein, all parties were represented and af-
forded full opportunity to be heard, to examine and
cross-examine witnesses , and to introduce evidence. Fol-
lowing the close of the trial, the General Counsel and
Respondent both filed with me timely briefs that have
been considered
On the entire record in this case and from my observa-
tion of the witnesses , I make the following
FINDINGS OF FACT
I JURISDICTION
Lehigh Portland Cement Company is, and has been at
all times material here, a Pennsylvania corporation with
an office and place of business located at Leeds, Ala-
bama, where it is engaged in the production and distribu-
tion of cement and related products . During the past cal-
endar year , which period is representative of all times
material here , Respondent sold and shipped from its
Leeds, Alabama facility, cement products valued in
excess of $50,000 directly to customers located outside
the State of Alabama.
Respondent is, and has been at all times material here,
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act
II LABOR ORGANIZATION
Cement, Lime, Gypsum and Allied Workers Division,
International Brotherhood of Boilermakers, Iron Ship-
builders, Blacksmiths , Forgers and Helpers is, and has
been at all times material herein, a labor organization
within the meaning of Section 2 (5) of the Act.
III THE UNFAIR LABOR PRACTICES
A Background
Respondent operates nine plants at various locations
within the United States at which it produces cement.
The plant involved in this case is located at Leeds, Ala-
bama. The Leeds plant was purchased by Respondent in
1980 Respondent recognized the Union and in 1981 en-
tered into a collective -bargaining agreement with the
United Cement , Lime, Gypsum and Allied Workers
International Union covering all nine plants , including
the Leeds facility This collective-bargaining agreement
was effective from I May 1981 to 30 April 1984 . There-
after, it was extended by mutual agreement of the parties
to 25 May 1984.
On 1 April 1984 , the United Cement, Lime, Gypsum
and Allied Workers International Union merged with the
International Brotherhood of Boilermakers, Iron Ship-
builders, Blacksmiths , Forgers and Helpers The former
Union then became the Cement, Lime, Gypsum and
Allied Workers Division of the International Brother-
hood of Boilermakers.
The parties were unsuccessful at negotiating a new
collective -bargaining agreement During May 1984 the
Union began a strike against Respondent that lasted ap-
proximately 3 weeks . The Union made an unconditional
offer on behalf of the employees to return to work and
terminated the strike on 7 June 1984 Respondent imme-
diately implemented the terms of its last offer '
B The Unilateral Changes
The expired collective -bargaining agreement between
the parties provided a multistep grievance procedure
' The Union filed a charge in Case 4-CA-14604 alleging that no im-
passe existed at the time Respondent implemented its last offer On 30
January 1986 , Administrative Law Judge Arline Pacht issued a decision
finding that no impasse existed at the time Respondent implemented its
final offer and, accordingly, that Respondent violated Sec 8(a)(1) and (5)
of the Act by doing so Lehigh Portland Cement Co, JD-20-86 (January
30, 1986) Respondent filed exceptions , and the case is presently pending
before the Board [Issued as 286 NLRB 1366 (1987) ] This decision af-
fects certain findings and conclusions in the case before me, as is more
fully discussed below
980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ending in final and binding arbitration. The second step
of that grievance procedure provided that grievances
that could not be resolved between the employee and
his/her immediate supervisor be referred to the plant
manager and a union grievance committee. The expired
agreement did not specifically define "grievance commit-
tee" or place any explicit restriction on the number of
union representatives on that, committee During the
term of that agreement, however, a practice developed
whereby second-step grievance meetings were held on a
monthly basis between the plant manager and what was
known as the union "grievance committee " During this
time, the committee was made up of six employees. If
resolution of a grievance was not successful at that step,
the third step involved Respondent's manager of labor
relations and a representative from the International
Union or District Council
The expired collective-bargaining agreement contained
a provision that stated in part that "representatives of the
International Union shall, upon notice to the company,
be permitted on the company's premises to investigate
grievances." The Union's business office is immediately
across the street from Respondent's plant, and during the
term of that agreement, International Representative
Larry Myers developed a habit of entering Respondent's
premises without giving notice to the Company. On only
one or two occasions, however, were those visits actual-
ly to investigate employee complaints prior to the
Union's filing a grievance There is no evidence that Re-
spondent had notice of Myers entering its premises with-
out first notifying the Company.
Respondent's "final offer" to the Union, which was
implemented on 7 June, contained a new provision at-
tempting to define and limit the term "grievance commit-
tee " Article I, section 4 of the implemented proposal
provides.
Each plant shall be entitled to a maximum of three
(3) committeemen and there shall be not more than
one (1) committeeman from any classification
and/or department.
The implemented proposal contains the identical provi-
sion from the expired agreement giving the Union the
right to have access to its facility in order to investigate
grievances.
After employees abandoned the strike and returned to
work, second-step grievance meetings resumed in August
1984. During the meetings in both August and Septem-
ber 1984, Respondent was represented by its plant man-
ager and the Union by three employees. In October
1984, however, the Union brought five employees to the
second-step meeting Employees advised Respondent
that they would not be limited to three representatives as
provided for in the implemented proposal. The meeting
concluded without discussion of any pending grievances.
The parties did not meet again in second-step griev-
ance meetings until August 1985. At that time, because
of a backlog of grievances, the Union agreed to meet,
under protest, with only three committeemen present.
Meetings were held in this manner during September,
October, and November 19S5.
During the meeting in November 1985, Robert
Falkner, one of the three employees on the grievance
committee, asked Plant Manager Malcolm Hardin
whether International Representative Myers could par-
ticipate at second-step meetings. Hardin told Falkner that
Myers could not participate at this step because it was
reserved to Respondent's employees. Hardin pointed out
that Myers became involved representing the Union at
step three of the grievance procedure. Hardin also told
Falkner that Respondent would be willing to meet with
Myers at a special meeting
On 27 November, Myers telephoned Hardin to arrange
a meeting and to discuss access to Respondent's prem-
ises Myers testified he had received several complaints
from employees about Respondent subcontracting vari-
ous work. According to Myers, he told Hardin of the
employee complaints and stated he wished to see certain
people about those complaints and the type of work they
were complaining about Hardin responded that the
Company would not allow Myers to enter the plant to
speak to the employees about complaints. Hardin stated
he would check further on this and let Myers know Re-
spondent's position.
Hardin described the conversation somewhat different-
ly. According to Hardin, Myers simply asked in a gener-
al sense what Respondent's position was regarding
Myers having access to the plant. According to Hardin,
Myers "never gave me any particular specific reason. He
never really requested access at that time; he was just
simply asking what our position would be regarding
access " Hardin testified he told Myers that Respondent
would permit him to have "reasonable access" when
necessary to investigate grievances Hardin admits telling
Myers that if Myers simply wanted to speak to an em-
ployee, he should do that at the union hall dust across the
street from Respondent's plant Hardin testified he told
Myers that if Myers "needed to see a machine or observe
a procedure, something which actually required his pres-
ence in the plant, we would have no objection to permit-
ting him access "
To the extent there is a conflict in their testimony, I
credit Hardin over Myers. Hardin was both straightfor-
ward and consistent. Although Myers testified initially
that he told Hardin specifically about the subcontracting
complaints and his need therefor to observe specific pro-
cedures, Myers admitted on cross-examination, "Well,
the reason for calling was some subcontracting out com-
plaints, and I don't know if I went into any specific sub-
ject at that particular time or not." Myers' reason for
calling may well have been complaints he received about
subcontracting, but it is not at all clear that Myers re-
vealed this to Hardin I credit Hardin that Myers did not
do so Rather, I find that Myers simply asked Hardin
what Respondent's position or policy was concerning his
having access to the plant Hardin's response is as de-
scribed above in Hardin's testimony Before ending their
conversation, Myers and Hardin agreed to have a special
meeting on 3 December.
The meeting on 3 December was attended by Myers,
the three employees who had been acting as the Union's
"grievance committee," Assistant Plant Manager R. J.
LEHIGH PORTLAND CEMENT CO
Sagmeister, and Hardin Several topics were discussed,
including subcontracting of work, the size and makeup
of the Union's "grievance committee," and Myers' access
to Respondent's plant As was its usual practice, Re-
spondent took notes at this meeting, from which it later
made minutes Respondent's minutes contained the fol-
lowing statement.
The discussion tended to move from one topic to
another and back again For clarity, these minutes
are written as if each topic was entirely discussed
before moving on to the next
The minutes reflect, and all witnesses agreed, that during
this meeting Myers stated that Respondent was improp-
erly limiting the size of the Union's committee. Myers
stated he was not suggesting that no limit be set on the
number of committeemen permitted to attend meetings.
Myers told Respondent, however, that the Union should
be left free to use its best judgment concerning the
number of individuals to serve on the grievance commit-
tee. Hardin responded that grievance meetings would be
conducted only pursuant to the provisions of Respond-
ent's implemented proposal, which limited union attend-
ance to three committeemen As Respondent's own min-
utes reflect, Hardin stated flatly that "any deviation from
this criteria simply would not be acceptable." Myers told
Hardin that he then was going to sit on the grievance
committee as a member and would be attending the reg-
ularly scheduled meetings between Respondent and the
grievance committee Hardin questioned whether it
would be appropriate for Myers to serve on the griev-
ance committee because he was the Union's representa-
tive at the third step of the grievance procedure Hardin
stated that he did not believe it would be acceptable to
Respondent for Myers to serve on that committee, but
that he would "take the matter under advisement "
Myers' and Hardin's testimony and Respondent's min-
utes of the December meeting reflect that Myers then
raised once again the subject of his having access to Re-
spondent's plant to "investigate complaints and prob-
lems." Hardin again stated that Myers would be permit-
ted access to the plant to obtain facts that would not
normally be obtainable without access, but that access
would not be granted simply for the purpose of discuss-
ing complaints with employees Myers does not assert,
and Respondent's minutes do not reflect, that at this
meeting on 3 December Myers' request for access was
made with specific reference to a particular grievance or
a particular topic I find that it was not
On 19 December, four employees in Respondent's
packing department were suspended. Myers telephoned
Hardin the following day and asked if they could discuss
the suspensions. Myers and Hardin met at Respondent's
plant on 20 December to discuss the suspensions Fol-
lowing their discussion, Myers specifically asked permis-
sion to go to the packing department in order to speak
with the suspended employees Hardin denied Myers' re-
quest, stating that Myers would disrupt their work and
pointing out that Myers could speak to the employees
during nonworking hours Myers then requested to speak
with Robert E Falkner, the chairman of the employee
981
grievance committee, during Falkner's break Hardin
permitted Myers to go to the maintenance shop and meet
with Falkner at that time
In early January 1986, Falkner attempted to set up a
meeting with Respondent's plant manager to discuss
grievances concerning the suspensions issued on 19 De-
cember. In a conversation with Hardin in early January,
Hardin told Falkner that he had not yet set up the re-
quested meeting because a new plant manager was due
to arrive soon and Hardin believed it would be fruitless
to try to meet and discuss the grievances before the new
plant manager took over The new plant manager ar-
rived on 6 January Falkner met Hardin in the plant that
day and asked if Hardin had set up a meeting to discuss
the grievances Hardin replied that he had not done so
yet Falkner testified that on 7 January, Hardin came out
to where Falkner was working and engaged him private-
ly in a conversation. Hardin informed Falkner that the
new plant manager would meet with Falkner and one
employee from the packing department to discuss the
suspensions issued 19 December According to Falkner,
whom I credit, Hardin then stated that from that time on
Falkner would have to give Hardin a list of three names
and that they would be the permanent grievance com-
mittee with whom the new plant manager would meet
Falkner told Hardin he would have to get back in touch
with him later. Apparently, Falkner did not do so as a
result of the instant charge being filed.
By letter dated 8 January 1986, Myers wrote to
Hardin requesting to meet with Respondent concerning
various outstanding grievances. The letter stated in part.
I informed you on December 3, 1985 and again on
December 19, 1985 that I would be part of the
Union's Committee.
Myers asked that the Union and Respondent meet "at
your earliest convenience." By letter dated 17 January
1986, Respondent replied:
In response to your letter of January 8, 1986, the
company is available to meet with the local union
committee regarding any grievances which are ripe
for consideration at the second step of the grievance
procedure. I would remind you, however, that
under the terms of the implemented proposal, the
meeting should include no more than three mem-
bers of that committee.
In addition, it is our understanding of the griev-
ance procedure that an international representative
does not become involved until the third step. We
would expect, therefore, that the persons with
whom we meet will be limited to Lehigh employees
who are members of the local union committee.
IV. ANALYSIS AND CONCLUSIONS
A. The Merger
Respondent argues that regardless of its actions in this
case, it has not violated Section 8(a)(5) of the Act be-
cause it has no bargaining obligation to the Union here.
Respondent argues that the affiliation/merger between
982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Cement Workers and the Boilermakers was proce-
durally defective that the Cement Workers was "swal-
lowed whole" by the Boilermakers, and that the Cement
Workers no longer maintains any truly separate exist-
ence.
Respondent advanced a similar argument before Judge
Pacht, contending that the due-process standards re-
quired by the Board in Amoco Production Co. (Amoco
IV), 262 NLRB 1240 (1982), should govern every union
combination, whether styled a merger or an affiliation
Respondent also argued that procedural defects attended
the affiliation/merger between the Cement Workers and
the Boilermakers so as to relieve it of its responsibility to
recognize and bargain with the Union. Judge Pacht con-
cluded that "the merger procedures relied upon by the
Cement Workers were appropriate, and consequently,
that the Respondent's reliance upon their alleged invalid-
ity offers no defense for its refusal to bargain." Judge
Pacht also found that Respondent is estopped from chal-
lenging the merger. For reasons expressed below, I reach
the same result.
During 1982, the United Cement, Lime, Gypsum and
Allied Workers International Union formed an Interna-
tional merger committee to seek out and find another
International union with whom it might compatibly
merge. The committee was entrusted with guidelines that
the merger be with an industrial union ; that conditions,
interests, and objectives be shared; that the Cement
Workers not lose its identity, and that the merger be rati-
fied by the Cement Workers' membership. During 1983,
a proposed merger agreement was consummated be-
tween the Cement Workers and the Boilermakers. There-
after, the Cement Workers widely publicized the terms
and consequences of the merger among its membership.
In compliance with its International constitution, the
Cement Workers planned a special merger convention.
Delegates from each local union to this convention were
in proportion to its membership. Delegates to represent
each local were to be elected by secret ballot, but this
procedure was adhered to, if at all, only in the breach.
Local unions advertised meetings at which delegates
were to be selected by posting written notices in the
places where their other meetings were typically an-
nounced. Reminders were issued largely by word of
mouth. For the most part, less than a majority of the
members attended these meetings . The number of nomi-
nees did not exceed the number of delegates alloted to
the various local unions. Because the outcome of these
single slate elections was a foregone conclusion, secret
balloting was viewed as unnecessary. Voting for dele-
gates was done by show-of-hand. Of the 300 Cement
Workers' local unions, 171 sent delegates to the merger
convention. The local unions at each of Respondent's
nine facilities were represented by at least two delegates
Secret ballot voting took place on the second day of the
merger convention, and merger was approved by more
than the requisite two-thirds majority.
As a consequence of the merger, the United Cement,
Lime, Gypsum, and Allied Workers International Union
became a major and separate division of the Boilermak-
ers. Although the Boilermakers' International constitu-
tion supplanted that of the Cement Workers, it guaran-
teed a substantial degree of autonomy to its various divi-
sions. Moreover, the merger agreement provided that
"industry-wide negotiating and servicing policies of the
United Cement, Lime, Gypsum and Allied Workers
International Union will not be changed as a result of the
merger."
As a consequence of the merger, the Cement Workers'
10 districts were styled areas. The former International
union's vice presidents were renamed "international
representative/coordinators." Their duties remained un-
changed. The merger agreement also provided that the
300 local unions of the Cement Workers would remain
intact. All the local officers remained in place, as did the
methods of their selection. The method of processing
grievances and the degree of local responsibility for col-
lective bargaining were both unaffected by the merger
The amounts of initiation fees, dues, and total per capita
taxes were not affected by the merger. Local meeting
places and meeting dates remained the same.
Judge Pacht issued her decision on 30 January 1986,
prior to the Supreme Court's decision on 26 February in
NLRB v. Financial Institution Employees, 475 U.S 192
(1986). Judge Pacht provided a thorough and scholarly
discussion of the case law as it then existed, including the
Board's "due process" requirement of Amoco IV, supra,
and the more recent decision of Texas Plastics, 263
NLRB 394 (1982). Judge Pacht concluded that where, as
here, International unions enter into a relationship with
one another that does not significantly change the way
employees in the affected bargaining unit are represent-
ed, the Board would not demand adherence to its Amoco
IV rule.
Judge Pacht's analytical approach was effectively su-
perseded by the Supreme Court's decision in Financial
Institution Employees, supra, which rejected the Board's
Amoco IV requirement that all employees in the bargain-
ing unit-not merely union members-have the opportu-
nity to participate in an affiliation decision The Supreme
Court, however, left undisturbed the principle estab-
lished in earlier Board decisions that if the organizational
changes accompanying affiliation were substantial
enough to create a different entity, then the affiliation
raised a question concerning representation that could
only be resolved through the Board's election proce-
dures.
In the case before me, Respondent argues that the
Cement Workers' merger with Boilermakers does not
provide the requisite continuity to require it to recognize
and bargain with the merged union I find, however, that
few organizational changes accompanied the merger of
the Cement Workers with the Boilermakers, and certain-
ly whatever changes there were were not so substantial
as to effectively create a different entity. The Boilermak-
ers' International constitution expressly guarantees a sig-
nificant degree of autonomy to its various divisions. The
Cement Workers' division continues to negotiate and
ratify its own collective-bargaining agreements. The
same Cement Workers officials who were responsible for
negotiating and administering collective-bargaining
agreements continued in their same roles after the
merger, with only their titles changed. The continuation
LEHIGH PORTLAND CEMENT CO 983
of industrywide bargaining is guaranteed by the merger
agreement itself Accordingly , I find that the merger of
the Cement Workers with the Boilermakers did not
result in changes so substantial or so significant as to
create a different entity, and I find that Respondent is re-
quired to recognize and bargain with the Cement, Lime,
Gypsum and Allied Workers Division , International
Brotherhood of Boilermakers , Iron Shipbuilders , Black-
smiths, Forgers and Helpers as the collective -bargaining
agent of its employees in the same bargaining unit that
existed prior to the merger of Cement Workers with
Boilermakers.
B. The Grievance Committee
The uncontested facts in this case show that before
Respondent would meet with the Union to process
grievances , Respondent insisted , pursuant to its unilater-
ally implemented proposal , that the Union establish a
grievance committee with no more than three members,
that the three members be employees and could not in-
clude the Union 's International representative , and, even-
tually, that the three members be permanently named to
the committee
Judge Pacht found that Respondent instituted its final
proposal without having bargained in good faith. Ac-
cordingly , she found that by instituting its proposal, Re-
spondent violated Section 8(a)(5) of the Act. It necessari-
ly follows that by insisting on adherence to the terms of
this proposal , and thereby interfering with the Union's
right to appoint its own representatives for grievance
processing , Respondent violated Section 8(a)(1) and (5)
of the Act.
Even if Judge Pacht's decision is overturned by the
Board, and the Board should find that Respondent bar-
gained with the Union in good faith to impasse , I would
nevertheless find for reasons expressed more fully below
that Respondent violated Section 8(a)(5) of the Act by
interfering with the Union 's right to designate its own
representatives for grievance processing.
Respondent argues Board law is clear that the terms of
a collective -bargaining agreement concerning grievance
procedures survive expiration of the agreement Re-
spondent argues that , therefore , a portion of the griev-
ance procedure limiting a union 's International represent-
ative to participation at the third step also survives expi-
ration of the agreement Next , Respondent argues that in
limiting the union committee to three members, Re-
spondent "acted entirely consistent with its pre-impasse
bargaining proposal "2 Finally, Respondent argues that
"given the status of grievance provisions generally as
mandatory subjects of bargaining , Lehigh was free to im-
plement its proposed changes thereto which were rea-
sonably comprehended by its last offer to the Union, in-
cluding the limitation on the size of the grievance com-
mittee upon reaching impasse in the negotiations." Re-
2 Judge Yacht , in her decision referred to above , stated however that
"a summary of major provisions in Respondent 's implemented contract
which were not previously proposed to nor discussed with the Union
during the 1984 collective-bargaining negotiations " included as item No
17 "the proposal (which) limited the number of grievance committeemen and
terminated Lehigh ' s duty to compensate them for non -scheduled time
when they were not on duty " (Emphasis added )
spondent argues that I should follow a decision by Ad-
ministrative Law Judge Mary Ellen R . Benard to Dundee
Cement Co., JD-224-85, 7 August 1985, which involved
a similar issue In that decision , Judge Benard stated:
Neither the parties ' briefs nor my own research
has disclosed any cases precisely on point on the
question of whether an employer may implement,
after impasse, a final proposal which limits the
number of members on the union ' s grievance com-
mittee. . . I conclude that Times Herald [Printing
Co., 223 NLRB 505 (1976)] indicates that grievance
procedures are not an exception to the general rule,
and I therefore conclude that following impasse the
Respondent was entitled to implement its proposal
limiting the number of union grievance committee-
men entitled to participate in third- and fourth-step
grievance meetings. [Slip op. at 21-22.]
For the following reasons , I disagree with the conclu-
sion reached by Judge Benard , and I decline to follow
her decision While it has long been recognized that an
employer who bargains in good faith about mandatory
subjects of bargaining and reaches impasse in negotia-
tions with the union representing its employees may im-
plement its final proposal without violating the Act, this
principle has never been applied to allow an employer to
unilaterally wrest from a union statutory rights granted
by the Act. In Times Herald supra , the Board found that
an employer violated Section 8(a)(5) of the Act by refus-
ing to participate in a long-established local joint stand-
ing grievance committee during a contract hiatus because
"no impasse existed with regard to the joint committee "
.From this, Respondent argues, and I agree, that one can
presume the Board would have allowed the employer to
discontinue its participation in the joint committee if
such a change had been proposed by the employer and
impasse had been reached following good-faith bargain-
ing. This decision , however , very clearly deals with one
party's own obligation in grievance processing It in no
way deals with one party 's right to unilaterally impose a
particular manner of grievance processing on another
party to the collective-bargaining relationship. I there-
fore find the Board's decision in Times-Herald not only
to be inapplicable but to be wholly dissimilar
The Board held long ago in Shell Oil Co, 93 NLRB
161, 163-165 (1951)•
Under the Act, a union , as the duly designated
representative of the employees, has a right to
select the class of persons, whether they be employ-
ees or nonemployees , to negotiate with the employ-
er as to grievances . An employer may not, without
violating the Act, insist , as a condition of signing a
collective bargaining agreement , that the union sur-
render its right to be represented by a particular
class in bargaining as to grievances.
For, in the first instance, the union is not required
to bargain at all with respect to waiving or restrict-
ing its right to be represented by any specific class,
regardless of an employer's insistence.
984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The right of a union to select its own representatives for
grievance processing is a statutory right which may be
voluntarily discussed at negotiations and can be limited
only by agreement of the Union An employer is not free
to bargain to impasse and unilaterally implement a pro-
posal regarding the union's selection of its grievance pro-
cedure. In Arizona Portland Cement Co, 281 NLRB 304
(1986), the Board affirmed the decision of Administrative
Law Judge David G. Heilbrun finding that the company
could not refuse to allow the union's International repre-
sentative to serve at the second step of a grievance pro-
cedure. As Judge Heilbrun stated (281 NLRB 307)
[A] fundamental entitlement of the collective-bar-
gaining process must be recognized This is the
right of either labor or management to select repre-
sentatives of its choosing for participation in the
various phases of a complex collective-bargaining
relationship and, absent extreme reason to the con-
trary, to be free of interference in the process from
the opposite party.
In the final analysis, resolution of this issue requires a
balancing test between an employer's right to institute its
final offer concerning mandatory subjects following
good-faith bargaining and a union's right to designate its
own representatives for purposes of grievance process-
ing. To the extent this is so, I would find that the rights
of the Union in this case outweigh the rights of Re-
spondent for I find it of critical importance to a success-
ful collective-bargaining relationship that either party be
able to designate its own representatives for purposes of
collective bargaining, including grievance processing In
the absence of a collective-bargaining agreement mutual-
ly agreed to by both parties, an employer's obligation to
bargain over individual grievances concerning terms and
conditions of employment is no different than the obliga-
tion to bargain over the terms and conditions themselves.
It must be concluded that a union is equally free to select
representatives to negotiate over those grievances as it is
to select its own representatives for purposes of collec-
tive bargaining. To allow an employer to unilaterally
impose on a union the size and makeup of its grievance
handling committee undermines the status of the union as
bargaining representative of the employees Moreover, it
allows the employer to unilaterally exclude particular
persons from the grievance procedure. Further, to allow
the employer to unilaterally exclude the union's Interna-
tional representative from second-step grievance meet-
ings results, either intentionally or unintentionally, in the
employer's being allowed to unilaterally establish a pro-
cedure in which it deals directly with employees A
union may allow an all-employee committee to resolve
grievances informally if it chooses to do so, but there is
simply no precedent for allowing an employer to unilat-
erally establish such a procedure without the express
agreement of the union representing its employees Ac-
cordingly, I find that by implementing and adhering to
its proposal that the Union's grievance committee be lim-
ited to no more than three individuals all of whom had
to be employees, Respondent violated Section 8(a)(1) and
(5) of the Act.
C. Access
Counsel for the General Counsel argues that Respond-
ent unilaterally changed its interpretation of the provi-
sion giving the Union access to Respondent's facility to
investigate grievances and refused the Union's request
for access to investigate specific complaints.
The Union argues that access to Respondent's plant
was necessary in order to properly investigate complaints
about subcontracting of bargaining unit work. The Union
argues that it is possible for Myers to speak to employees
while they are performing their work without disrupting
the production process
The record reveals that Myers twice questioned
Hardin concerning Respondent's position about allowing
the Union access to its facility. On neither occasion,
however, did Myers state that he needed access to inves-
tigate any pending or specific grievance or complaint.
Both times Myers' questioning of Hardin was nonspeci-
fic, as if to ask Hardin about Respondent's interpretation
of the instituted proposal Myers asserts that he wanted
access in order to observe whether and what bargaining
unit work was being subcontracted In view of Respond-
ent's position that it would allow Myers access to ob-
serve a particular machine or operation, it would have
been easy for Myers to tell Hardin that he wanted access
to observe work being subcontracted, but he did not do
so. Having heard the evidence in this case, I am con-
vinced that the reason Myers did not make such a specif-
ic request was twofold First, the real dispute between
Respondent and the Union during the months of Novem-
ber and December 1985 and January 1986 was the dis-
pute concerning the makeup of the grievance committee,
discussed in detail above. Myers' conversations with
Hardin about access were nonspecific because Myers
simply wanted to find out Hardin's interpretation of the
provision in Respondent's implemented proposal.
Second, Myers did not make a specific request to ob-
serve work being subcontracted because his real desire
was to interview complaining employees while they
were working. Having been told that Respondent would
not permit this, Myers did not bother to make a specific
request. I believe that once the Union decided to pursue
its rights under the Act by filing a charge, the issue
about access was added as somewhat of an afterthought.
While Myers testified that his access to the plant had
been previously unlimited and that he entered the plant
whenever necessary, Myers acknowledged that manage-
ment had not been made aware of his visits on many of
these occasions. The expired collective-bargaining agree-
ment had not contemplated unrestricted access by union
representatives, as is obvious from the fact that it provid-
ed access only "upon notice to the company." Respond-
ent's implemented proposal included the same restriction
without modification.
Of the few specific instances Myers could recall in
which he had visited Respondent's plant for purposes of
talking to an employee, one occurred before Respondent
even purchased the Leeds' facility. Another involved a
disciplinary incident in 1982. These isolated instances
simply do not support a conclusion that long-standing
practice resulted in the Union's being granted unlimited
LEHIGH PORTLAND CEMENT CO 985
access to Respondent's facility without notice. Indeed,
the record reflects that in November 1985, after the im-
plemented proposal was in effect, Myers wanted access
to the plant to investigate a problem with a water blast-
er Myers not only requested access, but was granted it
Having considered all the evidence, I find the record
does not support a conclusion that Respondent unilater-
ally abrogated or altered the Union's right of access to
Respondent's facility Nor did Respondent violate the
Union's statutory right to access that the Act requires in
certain circumstances. In Holyoke Water Power Co., 273
NLRB 1369, 1370 (1985), enfd. 778 F 2d 49 (1st Cir.
1985), the Board recently stated
Where it is found that responsible representation of
employees can be achieved only by the union's
having access to the employer's premises, the em-
ployer's property rights must yield to the extent
necessary to achieve this end. . . On the other
hand, where it is found that a union can effectively
represent employees through some alternate means
other than by entering on the employer's premises,
the employer's property rights will predominate,
and the union may properly be denied access.
There is simply no evidence in the instant case that the
Union's responsible representation of employees could be
achieved only by the Union's having access to Respond-
ent's facility The Union's office is directly across the
street from Respondent's plant There is simply no indi-
cation that the Union could not interview employees
before or after work at the Union's office Accordingly,
I find that in this case Respondent did not violate any
statutory right the Union might have of access to Re-
spondent's facility. I shall therefore dismiss that allega-
tion in the complaint.
CONCLUSIONS OF LAW
1 Respondent, Lehigh Portland Cement Company, is,
and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Cement, Lime, Gypsum and Allied Workers Divi-
sion, International Brotherhood of Boilermakers, Iron
Shipbuilders, Blacksmiths, Forgers and Helpers is, and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act
3. At all times material herein, the Union has been, and
is now, the exclusive representative for purposes of col-
lective bargaining with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment of Respondent's employees in the appropri-
ate collective-bargaining unit(s) defined in the most re-
cently expired collective-bargaining agreement between
the parties.
4 By insisting, pursuant to its unilaterally implemented
contract proposal, that the Union establish a grievance
committee with no more than three members, that the
three members be employees and could not include the
Union's International representative, and that the three
members be permanently named to the committee, Re-
spondent has interfered with the Union's right to desig-
nate its own representatives for purposes of collective
bargaining and grievance processing, and Respondent
has thereby violated Section 8(a)(1) and (5) of the Act.
5 Respondent has not unilaterally abrogated or altered
the Union's right of access to Respondent's facility as al-
leged in the complaint Nor has the Respondent violated
any statutory right the Union may have of access to Re-
spondent's facility Accordingly, that allegation of the
complaint is dismissed.
6 The unfair labor practice that Respondent has been
found to have engaged in, as described above, has a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tends to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce within the mean-
ing of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) and
(5) of the Act, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Incorporated in the General Counsel's brief was a re-
production of what has become a form brief filed by the
General Counsel in every case asking that as a part of
the remedy a visitatorial clause be included, giving the
General Counsel certain specific discovery powers
during the compliance stage of this proceeding In recent
cases, the Board has granted such a request only on a
case-by-case basis where it has felt such a clause is war-
ranted. In this case, the General Counsel points to no
specific facts and no special circumstances that would
warrant such a clause This case does not involve a com-
putation of backpay, the location of unknown discrimina-
tees, or other special circumstances that in my view,
might warrant such a clause. The General Counsel's re-
quest is therefore denied.
Accordingly, on the foregoing findings of fact and
conclusions of law, I issue the following recommended3
ORDER
The Respondent, Lehigh Portland Cement Company,
Leeds, Alabama, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Insisting, pursuant to its unilaterally implemented
contract proposal, or otherwise, that the Union establish
a grievance committee consisting of three permanently
named employee members who cannot include the
Union's International representative.
(b) 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
9 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 l02 48 of the Rules, be adopted by the
Board and all objections to them shall be waived for all purposes
986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) Post at its Leeds, Alabama facility copies of the at-
tached notice marked "Appendix ."4 Copies of the notice,
on forms provided by the Regional Director for Region
10, after being signed by the Respondent's authorized
" 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-
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 "
representative , shall be posted by the Respondent imme-
diately on 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 Respondent to ensure that the
notices are not altered , defaced, or covered by any other
material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.