Oliver Insulating Co.

National Labor Relations Board - Board Decisions

Dec 4, 1992

309 N.L.R.B. 725 (N.L.R.B. 1992)

725
309 NLRB No. 108
OLIVER INSULATING CO.
1 At this time, the Respondent did not repudiate the relationship
insofar as the Maintenance contract unit was concerned.
Oliver Insulating Company, Inc. and International
Association of Heat and Frost Insulators and
Asbestos Workers, Local 84, AFL–CIO. Case
8–CA–23347
December 4, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The principal issues in this case are whether the ad-
ministrative law judge correctly determined that the
Union’s charges were timely filed under Section 10(b)
of the Act, and whether the Respondent violated Sec-
tion 8(a)(5) by failing to supply requested information
and failing to process grievances.
On February 6, 1992, Administrative Law Judge
David L. Evans issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
Charging Party (the Union) filed cross-exceptions and
a memorandum in opposition to the Respondent’s ex-
ceptions. The General Counsel filed an answering brief
to the exceptions and cross-exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions, cross-exceptions, and
briefs, and has decided to affirm the judge’s rulings,
findings, and conclusions as modified, and to adopt the
recommended Order.
We affirm the judge’s finding that the allegations of
the complaint, as amended at trial, are supported by
charges that were filed within the limitations period of
Section 10(b) of the Act. We do so for the reasons set
forth below.
The Respondent and the Union were parties to two
8(f) agreements. The Master Agreement expired, pur-
suant to notice, on June 30, 1990. The Maintenance
Agreement expired, pursuant to notice, on September
24, 1990.
1. We deal first with the question whether allega-
tions concerning the Respondent’s refusal to supply re-
quested information relating to grievances filed under
the Master Agreement are supported by a timely
charge. On August 31, 1990, the Union made a request
for information concerning a grievance filed on June 8,
1990, under the Master Agreement. The General Coun-
sel contends that the failure to supply this information
violated Section 8(a)(5). The Respondent argues that,
on June 29, 1990, it clearly and unequivocally told the
Union that it was repudiating its relationship with the
Union insofar as the Master contract unit was con-
cerned.1 Thus, according to the Respondent, the Union
knew, or should have known, on that date that the in-
formation would not be supplied. Therefore, the argu-
ment runs, the charge of January 25, 1991, was un-
timely.
The judge found that the Respondent’s June 29,
1990 letter to the Union was in fact a repudiation letter
that constituted clear and unequivocal notice to the
Union that the Respondent would not respond to any
subsequent requests for information under the Master
Agreement. In his view, this was an ‘‘anticipatory re-
fusal’’ to supply any information that might be later
requested. The judge reasoned that, in these cir-
cumstances, the August 31, 1990 request for informa-
tion is to be considered as denied as soon as it was
made. Thus, he concluded that the charge was timely
with respect to the denial of the August 31 request.
The General Counsel and the Charging Party con-
tend that the June 29, 1990 letter did not constitute no-
tice to the Union that the Respondent would not re-
spond to subsequent requests for information. We
agree.
Unlike the judge, we cannot find that the Respond-
ent’s June 29, 1990 letter clearly communicated that
the Respondent would not furnish information under
the expiring Master contract. While the letter clearly
repudiates any obligation to bargain for a successor or
future agreement, it is silent as to its obligation to
process and resolve grievances which arose under the
Master contract before its expiration. Further, there is
nothing in the letter to indicate that it would not pro-
vide the requested information necessary to process
such grievances. Accordingly, since the Respondent
did not communicate to the Union that it would not
meet its bargaining obligation under the expired con-
tract, we do not adopt the judge’s finding that the let-
ter constituted an anticipatory refusal to furnish the re-
quested information.
Nor was Respondent’s letter of July 20, 1990, a
clear and unmistakable refusal to supply information
under the Master Agreement. The letter was ostensibly
in response to a July 13, 1990 grievance filed under
the Maintenance Agreement, not the Master Agree-
ment. Further, the letter makes a confusing reference
to Local 44. There is no record evidence regarding
Local 44. Both the Master Agreement and the Mainte-
nance Agreement were with Local 84. The letter also
says that the information could be supplied if further
explanation of the request was given. In sum, the letter
is not a clear and unmistakable rejection of the August
31, 1990 request for information.
The same reasoning applies to the January 30, 1991
request for information relevant to the grievances filed
on June 8 and 29, 1990, under the Master contract.
Thus, under this reasoning, the Respondent’s letter of
June 29, 1990, was neither an anticipatory refusal to
supply this information nor a clear refusal to do so.
726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 See Jervis B. Webb Co., 302 NLRB 316 (1991).
3 Indiana & Michigan Electric Co., 284 NLRB 53 (1987).
4 The judge inadvertently refers to ‘‘the March 21 amendment’’
several times in his decision. The correct date is March 29.
5 The allegations with respect to the failure to honor the January
30, 1991 request for arbitration are simply another aspect of the fail-
ure to process the grievances and are supported by both the original
and amended charge. We also agree with the judge that the trial
amendment relating to the Respondent’s refusal to supply informa-
tion pursuant to the May 8, 1991 request is supported by both the
original and amended charges.
6 John Deklewa & Sons, 282 NLRB 1375 (1987).
In sum, at no time prior to July 25, 1990 (the start
of the 10(b) period) did the Respondent provide clear
and unequivocal notice that it would not respond to the
Union’s request for information necessary to process
the pending grievances under the Master Agreement.
It is well settled that the 10(b) period commences
only when a party has clear and unequivocal notice of
a violation of the Act. Strick Corp., 241 NLRB 210 fn.
1 (1979). Further, as is the case with the 10(b) defense
generally, the burden of showing that the charging
party was on clear and unequivocal notice of the viola-
tion rests on the respondent. Since the Respondent has
not met this burden, we find that the charge filed on
January 25, 1991, was timely as to the requests for in-
formation, dated August 31, 1990, and January 30,
1991.
2. Applying those same principles, we next consider
whether, prior to July 25, 1990, when the 10(b) period
commenced, the Union has sufficient notice that the
Respondent would refuse to supply requested informa-
tion concerning a grievance under the Maintenance
Agreement, which was described in a letter dated July
13, 1990, from the Union to the Respondent. As ex-
plained above, the Respondent’s June 29, 1990 letter
did not contain a clear refusal to supply any informa-
tion concerning precontract-expiration grievances.
Since the June 29 letter stated that the Respondent
would continue to honor the Maintenance Agreement
for its term (ending Sept. 24, 1990), that letter a
fortiori did not give the Union clear notice that the Re-
spondent would supply no information concerning the
July 13 grievance. The Respondent’s July 20 letter,
with its confusing references to Local 44, also failed
to supply such notice. Although it stated the Respond-
ent’s refusal to meet over the grievance or supply in-
formation at that point, the letter suggested that infor-
mation might be forthcoming if the Union further ex-
plained its request. The record shows no further com-
munications relating to this matter prior to July 25,
1990, so the charge filed January 25, 1991, is timely
with respect to the alleged refusal to supply informa-
tion relating to the Maintenance Agreement grievance.
3. We also find that the Respondent did not, prior
to the commencement of the 10(b) period, give clear
and unequivocal notice of a refusal to process the June
8 and 29 Master Agreement grievances or the July 13
Maintenance Agreement grievance. Nothing in the Re-
spondent’s communications prior to July 25, 1990,
constituted adequate notice that the Respondent not
only declined to bargain for new agreements after the
Master Agreement and Maintenance Agreement ex-
pired, but also was refusing to satisfy its statutory obli-
gation to bargain over grievances that, notwithstanding
the date on which they were filed, arose under the ex-
piring agreements.2 Therefore, the grievance process-
ing allegations are timely if they are covered by the
January 25 charge.
The Respondent also contends that the January 25
charge did not cover the refusal to process grievances.
The January 25 charge alleges, inter alia, that the
Respondent violated the Act:
1. By failing to produce requested information
necessary to the processing of a grievance; and
. . . .
3. By continuing to refuse to recognize and bar-
gain with the Union as the exclusive bargaining
representative.
We find that this charge is sufficient to cover the re-
fusal to process grievances, since the charge refers to
the Respondent’s failure to bargain, and grievance
processing is an aspect of bargaining.3 Further, the in-
formation requests are inextricably tied to the griev-
ances. In any event, we agree with the judge, for the
reasons stated by him, that the amended charge of
March 29, 1991,4 which explicitly covers the failure to
process grievances, is closely related to the timely filed
allegations in the original charge. Therefore, we find
that the allegations of the complaint concerning a fail-
ure to process grievances are supported by charges that
were timely filed under Section 10(b).5
4. With respect to the merits of this case, we note
that, under Deklewa,6 an employer has an 8(a)(5) obli-
gation to honor the terms of an 8(f) contract. This
principle would extend to the grievance provisions of
such a contract. Where, as here, the grievances are
filed during the term of the 8(f) contract and relate to
disputes arising under that contract, we would apply
the Deklewa principle to require that the Employer
process the grievances even after the expiration of the
contract. Jervis B. Webb Co., supra. Further, inasmuch
as there is a Deklewa duty to process these grievances,
we would construe that duty to include the obligation
to supply information relevant to those grievances,
even if the information request occurs after the expira-
tion of the 8(f) contract.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Oliver Insulating Com-
727OLIVER INSULATING CO.
pany, Inc., Ashland, Ohio, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Mark Carissimi, Esq., for the General Counsel.
Alan G. Ross, Esq. (Ross, Brittain & Schonberg Co., L.P.A.),
of Cleveland, Ohio, for the Respondent.
Randall Vehar and Ronald G. Macala, Esqs., of Canton,
Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This matter
under the National Labor Act (the Act) was tried before me
in Cleveland, Ohio, on August 27, 1991. The original charge
was filed by International Association of Heat and Frost
Insulators and Asbestos Workers, Local 84, AFL–CIO (the
Union) against Oliver Insulating Company, Inc. (the Re-
spondent), on January 25, 1991. An amendment to the charge
was filed on March 29, 1991. The complaint was issued by
General Counsel on April 30, 1991, and it was amended at
trial. Respondent duly answered the complaint, admitting ju-
risdiction of this matter before the National Labor Relations
Board (the Board) but denying the commission of any unfair
labor practices and denying that the allegations of the com-
plaint are supported by charges filed within the 6-month lim-
itations period of Section 10(b) of the Act.
On the testimony and exhibits entered at trial, including
my observation of the demeanor of the witnesses, and on the
briefs that have been filed by all parties, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation that maintains an office and
place of business in Ashland, Ohio, where it is engaged in
the construction industry as a contractor for insulating, me-
chanical, and asbestos abatement services. Annually, in the
course and conduct of that business, Respondent purchases
and receives at its Ashland facility products, goods, and ma-
terials valued in excess of $50,000 directly from suppliers lo-
cated at points outside Ohio.
Therefore, Respondent is now, and has been at all times
material, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Charge and Complaint
The January 25, 1991 charge alleges as violations of Sec-
tion 8(a)(5) and (1) of the Act:
Since on or about July 28, 1990, and continuing at
all times since then, the above-named employer has
violated [the Act] by the following and other acts:
1. By failing to produce requested information nec-
essary to the processing of a grievance;
2. By diverting bargaining unit work to a related
company and/or to an alter ego, single employer, and/or
joint employer without prior notice and/or bargaining;
and
3. By continuing to refuse to recognize and bargain
with the exclusive bargaining representative.
The March 29, 1991 amendment repeats the above-quoted
language, and it adds as a fourth specified violation of Sec-
tion 8(a)(5):
4. By failing to process grievances.
Both the original and amended charges conclude:
By the above and other acts, the above-named em-
ployer has interfered with, restrained, and coerced em-
ployees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act[.]
The complaint alleges that for many years the Union has
been recognized by Respondent as the exclusive bargaining
representative of its mechanics and apprentices. The com-
plaint further alleges, at paragraph 6, that the last contract
(the Master Agreement) between the parties was effective
from June 30, 1987, through June 30, 1991. It further al-
leges:
7. (A) The collective bargaining agreement referred
to in Paragraph 6 was a pre-hire agreement as permitted
by Section 8(f) of the Act.
(B) In addition to the collective bargaining agree-
ment referred in Paragraph 6, the Respondent and the
Union were also signatory to a Maintenance Agreement
which was due to expire September 24, 1990.
8. (A) On or about June 8, 1990, the Union filed a
grievance alleging that Respondent was subcontracting
bargaining unit work in violation of the terms of the
collective bargaining agreement referred to in Paragraph
6.
(B) On or about June 29, 1990, the Union filed
a grievance alleging that the Respondent failed to pro-
vide adequate notice of layoff and failed to follow
proper referral procedures in violation of the collective
bargaining agreement referred to in Paragraph 6.
(C) On or about July 13, 1990, the Union filed
a grievance alleging that Respondent had violated the
terms of the Maintenance Agreement referred to in
Paragraph 7(B).
(D) Since on or about September 21, 1990, Re-
spondent has refused, and continues to refuse, to proc-
ess the grievances referred to in subparagraphs (A), (B)
and (C).
9. (A) Since on or about August 31, 1990, the
Union, by letter, has requested Respondent to furnish
the Union with information on any project performed
by Respondent or an allegedly related company for the
prior two year period.
(B) The information requested by the Union, as
described above in subparagraph (A) is necessary for,
and relevant to, the Union’s performance of its function
as the exclusive collective-bargaining representative of
the Unit.
728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(C) Since on or about September 21, 1990, Re-
spondent has failed and refused to furnish the Union the
information requested by it as described above in sub-
paragraph (A).
At trial, paragraph 9(A) was amended to add the following:
Since on or about May 8, 1991, the Union, by letter,
has requested Respondent to furnish the Union with in-
formation regarding a list of all jobs, dates worked and
hours where Gary Oliver performed work normally per-
formed by the Union; all information regarding the use
of Oliver Insulation equipment that Gary Oliver &
Company may have leased, borrowed or bought from
your company; a list of contracts, if any, that Oliver In-
sulation entered into with Gary Oliver & Company. The
Union further requested by the same letter on that date
that the Respondent furnish a list of jobs, dates and
hours worked for one employee as it relates to the
Union’s June 29, 1990 grievance; and that the Respond-
ent furnish a list of employees, dates, hours worked and
wages paid on the Westfield Center project.
Paragraph 9(C) was amended to incorporate this allegation,
as well.
B. The Facts
Through a succession of contracts permitted by Section
8(f) of the Act, Respondent and the Union had a collective-
bargaining relationship for 15 years before the events of this
case. For a time these contracts were the product of negotia-
tions between the Union and the Master Insulators Associa-
tion of Akron, Ohio (the Association), of which Respondent
was a member. There are two types of collective-bargaining
agreements in the industry: a Master Agreement which cov-
ers both new construction and repair/renovation work, and a
Maintenance Agreement which is limited to repair/renovation
work and provides employers with more favorable terms for
such work.
The last Association Master Agreement which bound the
parties was effective by its terms from July 1, 1987, through
June 30, 1990. The Master Agreement recites that it would
be renewed unless notice is given 90 days prior to the stated
termination date. At article XVIII, ‘‘Maintenance Agree-
ment,’’ the Master Agreement further provides that any sub-
sequently negotiated Maintenance Agreement between the
parties will be modeled after the International’s Maintenance
Agreement and:
The Employers and the Union must agree within the
terms of this [Master] Agreement before said [Mainte-
nance] Agreement can be put into effect.
On December 19, 1988, Respondent (separately from the
Association) and the Union executed such a Maintenance
Agreement (the Maintenance Agreement). The Maintenance
Agreement has no definite termination date, but it provides
for termination on 90 days’ written notice. The Maintenance
Agreement expressly states that it does not apply to new con-
struction (which was to come under the parties’ Master
Agreement), and further:
This Agreement shall have application only to work
location[s] agreed upon between the Company and the
Union.
Both agreements prohibit supervisors from doing bargain-
ing unit work, prohibit subcontracting, and require employ-
ment of union-represented employees after the fifth day of a
project. The Master Agreement contains provisions for a
grievance procedure and binding arbitration. The Mainte-
nance Agreement incorporates those procedures by reference.
Grievances are defined as any dispute arising under the con-
tract. The remainder of the grievance procedure is
In case any dispute arises, verbal and written notice
must be given to the alleged violating party. In the
event the dispute is not re solved, it shall be referred
to binding arbitration.
That is, there are no stated time limits for the filing of griev-
ances or the answering of grievances, no specified steps to
the grievance procedure, and no stated time limit for referral
of a matter to arbitration. The arbitration clause provides for
joint selection of arbitrators through the Federal Mediation
and Conciliation Service, but adds: ‘‘If either party refuses
or fails to join in such selection, the other party may name
the arbitrator.’’
Robert E. Oliver is the president of Respondent. For some
time before 1989, one of Robert’s sons, Gary, operated Gary
Oliver and Company, Inc. (the Gary Oliver Company), a
concern that did asbestos abatement work. Asbestos abate-
ment work, when done by Respondent, fell under the parties’
agreements. The Gary Oliver Company had no agreement
with the Union. In early 1989, Robert Oliver and Jim Hud-
dleston, union business agent, had a telephone conversation
in which Robert Oliver told Huddleston that Gary was no
longer operating his own business and would, thereafter, be
a superintendent for Respondent, and he would be super-
vising Respondent’s asbestos abatement work.
Late in 1989, Huddleston met Gary on a job in Galion,
Ohio. No union-represented employees were on the job and
Huddleston asked Gary why. Gary replied that the job was
being performed by the (supposedly defunct) Gary Oliver
Company. Huddleston contacted Robert Oliver and asked for
a meeting over the matter; Robert Oliver, by letter, told Hud-
dleston that Gary had been mistaken and that Respondent
was performing the job in question and that the Union would
be contacted, presumably about getting union-represented
employees on the job. Apparently that happened, because
nothing more was said about the Galion job.
On March 22, 1990, Respondent sent the Union two let-
ters. In the first, Respondent announces that it is revoking the
authority of the Association to bargain on its behalf, that it
would not be a party to agreements subsequently negotiated
by the Association, and that it would individually bargain
with the Union thereafter. That first letter concludes that:
‘‘Of course, Oliver Insulating Company will continue to ad-
here to the terms of the current collective bargaining agree-
ment.’’ The second letter announces that Respondent is ter-
minating the Master Agreement at the end of its term, June
30.
729OLIVER INSULATING CO.
1 All subsequent dates are between June 8, 1990, and May 8, 1991,
unless otherwise indicated.
2 This is the only construction of the letter which I can make. Ac-
tually, the letter contains references to other locals of the Union
which are inexplicable on this record.
3 Some extraneous quotation marks are omitted.
On June 8, 1990,1 Huddleston wrote Respondent that the
Union had ‘‘new evidence’’ that Respondent and the Gary
Oliver Company are ‘‘inter-related and a violation of our
Collective Bargaining Agreement with you has occurred on
several occasions.’’ The letter concludes that a grievance
under the contract exists, that Huddleston would like to meet
on the matter, and that Oliver should call him.
On June 26, Oliver sent Huddleston a notice that Respond-
ent was terminating the Maintenance Agreement as of Sep-
tember 24 pursuant to the 90-day notice provision of that
agreement.
On June 28, after an exchange of letters, Huddleston and
Alan Ross, Respondent’s attorney, met to discuss the June 8
grievance. Ross asked what evidence the Union already pos-
sessed that the Gary Oliver Company was doing work on be-
half of Respondent. Huddleston replied that the Union was
still investigating the matter and would send Ross its infor-
mation later. Huddleston did not ask Ross for any informa-
tion at that time.
On June 29, by letter and telephone call, Huddleston in-
formed Oliver that a second grievance existed between the
parties. The letter recites that Respondent had failed to give
the Union 48 hours’ notice when last it laid off employee
Mike Conway, that Respondent had placed employee Pat
Goggins on work not approved by the Union, and that, in a
manner not specified, Respondent had violated the contrac-
tual provisions for an exclusive referral procedure. No dates
for the alleged contractual violations were indicated.
Also on June 29, Oliver wrote Huddleston that on the June
30 expiration of the Master Agreement, Respondent repudi-
ated ‘‘any obligation to recognize or bargain with Local 84.’’
The letter concludes:
At the present time, Oliver Insulating Company has
other collective bargaining agreements in effect which
involve other local unions. Those agreements include,
but are not limited to, agreements with Local 203 [a
sister Local whose contract rates would sometimes
apply to work of employees represented by the Union]
and the Maintenance Agreement. To the extent that Oli-
ver Insulating Company is performing any work cov-
ered by either of those agreements within the geo-
graphic jurisdiction of Local 84, Oliver Insulating Com-
pany will abide by those agreements for so long as they
are in full force and effect.
On July 13, Huddleston wrote Oliver that a third grievance
between the parties existed. The letter claimed that Respond-
ent had failed to comply with the Maintenance Agreement
for renovation work at ‘‘the Westfield Center Clubhouse.’’
The letter does not say in what regard Respondent might
have failed to comply with the Maintenance Agreement at
that jobsite. The letter makes the Union’s first informational
request:
If you have any other work that would fall under the
terms of [the Maintenance Agreement], we would ap-
preciate your listing the dates worked, numbers of
hours, and the location of the project.
This was the Union’s first request for information that is in-
volved in this case.
On July 20, Ross wrote Huddleston that Respondent had
no duty to bargain with the Union, ‘‘because no bargaining
unit exists,’’ and that Respondent would not meet with the
Union over the July 13 (Maintenance Agreement) grievance.
The letter further declines to furnish the requested informa-
tion, but holds out the possibility that some information may
be furnished in the future if the Union will give a satisfac-
tory explanation of why it is being requested.2
On July 30, and apparently in response to the request that
Ross made of Huddleston at their June 28 meeting on the
June 8 grievance, Huddleston wrote Ross:
As per your request, the following listed facilities ap-
pear to be projects performed by Gary Oliver Insula-
tions [sic] while Gary was acting as Superintendent for
Oliver Insulations [sic].
Then Huddleston lists 10 such projects, states that there are
probably more, and states that the Union’s investigation of
the matter is continuing. The letter did not ask for any infor-
mation from Respondent.
On August 31, Huddleston wrote Respondent again refer-
ring to the June 8 grievance and recites 37 jobs by Respond-
ent or the Gary Oliver Company which the Union considered
to be the subject of the June 8 grievance. The letter further
makes the Union’s second request for information that is in-
volved in this case.
We also respectfully request information on any
other project performed by Oliver Insulation or Gary
Oliver & Company in the past two (2) years. Failure
to provide this information, so [that] we may better
process our grievance, may lead to an unfair labor prac-
tice [charge].
The letter concludes with a request to meet ‘‘to resolve this
issue.’’
Respondent did not reply.
On September 21, Oliver wrote Huddleston that, as of
September 24, after the Maintenance Agreement was termi-
nated, Respondent repudiated any relationship with the
Union.
As noted, the original charge was filed on January 25.
On January 30, Huddleston wrote Respondent that it was
referring the June 8 and 29 Master Agreement grievances
(but not the July 13 Maintenance Agreement grievance) to
arbitration and further made the Union’s third request for in-
formation that is involved in this case.
In order to better prepare for our grievance[s], we
are once again requesting that you provide us with a list
of all jobs [on] which Gary Oliver or any other person
[in] your employ, other than bargaining unit workers,
performed duties that [have] contractually and histori-
cally been performed by members of Asbestos Workers
Local 84.3
730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Ross’ March 1 letter did state that Respondent would agree to
arbitration, but only on bilateral submission to FMCS. Respondent
does not mention that offer on brief. (By March 1, the Union’s right,
under the contractual provisions quoted above, unilaterally to submit
the case to arbitration had matured, and the Union had invoked that
right.) 5 Respondent argues only that the Union is harrassing it.
Also on January 30, Huddleston notified FMCS of the dis-
pute and asked for submission of a panel of arbitrators, list-
ing as the topics in issue the subjects of the June 8 and 29
grievances.
In neither of Huddleston’s January 30 communications
was the July 13 Maintenance Agreement grievance men-
tioned.
On March 1, Ross wrote Huddleston that Respondent de-
nied that there was a current bargaining relationship between
the parties (although Huddleston had not stated that there
was), objected to the Union’s unilateral submission of the re-
quest for arbitrators, and stated:
In view of the foregoing, should you wish to request
FMCS for a panel of arbitrators, Oliver Insulating will
participate in a joint submittal for a panel that can then
be properly assembled and served on both the Company
and Local 84 simultaneously.
Should you have any further requests or desire any
other information, please do not hesitate to correspond
with me directly.
As noted, the amended charge was filed on March 29.
On May 8, by letter of that date, Huddleston made the
fourth union request for information, as specified in the trial
amendment to the complaint which is quoted above. In his
letter, Huddleston stated that he needed the information to
prepare for arbitration of the issues raised in all of the three
grievances it had filed.
Respondent never produced any of the information re-
quested by the Union, and Respondent did not comply with
the Union’s demands for arbitration.4
C. Analysis and Conclusions
1. The 10(b) issues
Section 10(b) of the Act provides that ‘‘no complaint shall
issue based upon any unfair labor practice occurring more
than six months prior to the filing of the charge with the
Board.’’ Respondent argues that all allegations of the com-
plaint are barred by this provision of the Act.
The complaint, as amended at trial, alleges that Respond-
ent has, in violation of Section 8(a)(5), refused to process (or
entertain) grievances and has refused to provide information
relevant to those grievances since September 21. (I find that
Respondent’s refusals began, as anticipatory refusals, on June
29, but that finding does not affect the ultimate result.)
The Union filed three grievances: (1) the June 8 grievance
under the Master Agreement alleging that Respondent and
the Gary Oliver Company were acting as ‘‘inter-related’’
companies; (2) the June 29 grievance under the Master
Agreement relating to a layoff of employee Goggins, the
placement of employee Conway on an unapproved job, and
an alleged failure to abide by the exclusive referral proce-
dures; and (3) the July 13 grievance under the Maintenance
Agreement relating to alleged violations at the Westfield
Center Clubhouse jobsite. Respondent contends that the limi-
tations period of Section 10(b) begins to run on any alleged
unlawful refusal to entertain grievances, or any alleged un-
lawful refusal to furnish information necessary to process
grievances, as of the date that any such grievance is filed.
Although I asked for authority of this proposition at the hear-
ing, Respondent suggests none on brief.
Respondent acknowledges that the grievances involved
were filed within the dates covered by the relevant contracts.
Respondent argues, however, that a failure of the Board to
create a time limit on requests for processing to arbitration
grievances that are filed during a contract’s term, or a failure
of the Board to create a time limit for the making of requests
for information about such grievances, would result in the
Union’s having the right to make demands for information,
and demands for arbitration, into the far distant future. There
are no such contractual periods of limitation, and the Board
will not retroactively engraft one on the parties’ freely nego-
tiated collective-bargaining agreement. Perhaps at some point
the doctrine of laches would be said to apply; however, Re-
spondent does not advance any objective reason5 that laches
should be invoked in this case. (Certainly, Respondent does
not contend that it no longer can produce the requested infor-
mation.)
The request for information for the processing of the June
8 grievance under the Master Agreement was made on Au-
gust 31, a date by which Respondent had already repudiated
all obligations growing out of the Master Agreement. As I
find, the Union had a right to make its August 31 request
for information when it did, but, at the same time, by virtue
of Respondent’s June 29 repudiation letter, the Union already
had clear and unequivocal notice that Respondent would not
respond to any subsequent requests for information. For that
reason, it must be concluded that the limitations period of
Section 10(b) began to run against the August 31 request for
information the instant the request was mailed by the Union.
Nevertheless, the charge of refusal to furnish information, as
it relates to the the June 8 Master Agreement grievance,
would still not run until 6 months after the August 31 request
was made, or February 28. Therefore, the January 25 charge,
as it relates to Respondent’s refusal to furnish the informa-
tion specified in the Union’s August 31 request, was not
barred by the limitations period of Section 10(b).
The next issue is whether the March 29 amended charge,
as it relates to Respondent’s refusal to entertain the June 8
grievance, supports the allegation of the complaint based on
that refusal. The allegations of the amended charge, and the
complaint, are supported by a charge that is timely filed
within Section 10(b) if they are closely related to, and grow
out of, timely filed allegations in the original charge. The
Board states in Roslyn Gardens Tenants Corp., 294 NLRB
506, 507 (1989):
In determining whether otherwise untimely filed alle-
gations are barred under Section lO(b) of the Act, we
examine the newly alleged violations to determine
whether they are ‘‘closely related’’ to and grow out of
the violations timely alleged in the charge. In applying
the ‘‘closely related’’ test to those violations alleged
here, we examine the following factors: (1) ‘‘whether
731OLIVER INSULATING CO.
the otherwise untimely allegations are of the same class
as the violations alleged in the pending timely charge’’
(i.e., whether they involve the same legal theory and
usually the same section of the Act); and (2) ‘‘whether
the otherwise untimely allegations arise from the same
factual situation or sequence of events as the allegations
in the pending timely charge’’ (i.e., whether they in-
volve similar conduct, usually during the same time pe-
riod, with a similar object).5
5 Redd-I, 290 NLRB 1115, 1118 (1988). See also NLRB v. Union
Coil Co., 201 F.2d 484, 491 (D.C. Cir. 1952), and NLRB v. Fant Mill-
ing Co., 360 U.S. 301, 309 (1959). The Board may also look at whether
a respondent would raise the same or similar defenses to the new alle-
gations.
It is difficult to imagine more closely related charges than
one which alleges a refusal to furnish information necessary
to process a grievance and a charge alleging an outright re-
fusal to entertain the same grievance. Moreover, Respondent
asserts the same defense to both charges: Respondent denies
that it had any duty to respond to requests to furnish infor-
mation, or requests to entertain grievances, because the re-
quests were made after the relevant contract had expired. Ac-
cordingly, I conclude that the allegations of the complaint,
that Respondent unlawfully refused to entertain the June 8
grievance, is supported by a charge that was timely filed
within Section 10(b).
The January 25 charge does not refer to any refusal to en-
tertain any grievance. Specifically, it does not refer to Re-
spondent’s refusal to entertain the June 29 grievance over a
layoff, an employee placement, and alleged violations of the
referral procedures. The January 25 charge alleges a refusal
to furnish information, but it could not have been referring
to any refusal to furnish information concerning the June 29
grievance because there was no request for information con-
cerning that grievance until May 8. Therefore, the January 25
original charge (alleging a refusal to furnish information)
does not provide a lifeline to the March 21 amendment (al-
leging both a refusal to furnish information and a refusal to
entertain grievances) under Redd-I.
That being the case, the March 29 amendment regarding
refusals to entertain grievances must be considered a new
charge as it relates to Respondent’s ignoring the June 29
grievance. The next issue is whether the March 29 ‘‘new’’
charge supports the allegations of the complaint that Re-
spondent unlawfully refused to process the June 29 griev-
ance.
Huddleston’s January 30 letter announcing that the Union
was referring the June 29 grievance (as well as the June 8
grievance) to arbitration was necessarily a second request
that the June 29 grievance be entertained (the first being the
filing of the grievance, itself). As noted above, there is no
contractual time limit for referring a grievance to arbitration
and, again, Respondent advances no objective reason for in-
voking laches. Each refusal of a (noncontractually untimely)
request for grievance processing starts another running of the
limitations period of Section 10(b). Chesapeake & Potomac
Telephone Co., 259 NLRB 225, 230 (1981), enfd. 687 F.2d
633 (2d Cir. 1982). As I have held above, because Respond-
ent had already repudiated all obligations growing out of the
Master Agreement, the limitations period of the Act began
running on the mailing of the January 30 request that the
June 29 grievance be arbitrated. However, the limitations pe-
riod of Section 10(b) then did not expire until July 30, 1991,
and the complaint, as it relates to Respondent’s refusal to
process the June 29 grievance to arbitration, is supported by
the March 29 ‘‘new’’ charge.
When the July 13 request for information under the Main-
tenance Agreement was sent by the Union (as part of the
grievance itself), Respondent had not repudiated its statutory
obligations relating to that agreement. Therefore, there is no
argument that the limitations period of Section 10(b) should
be found to have begun running as of the time that the Union
made the July 13 request. Respondent did not repudiate its
obligations relating to the Maintenance Agreement until Sep-
tember 21. Certainly, the repudiation letter of September 21
was a refusal to furnish the information requested on July 13.
But there is no argument, contractual or otherwise, that the
limitations period of Section 10(b) should be deemed to have
begun to run against the charge of refusal to provide infor-
mation necessary for the processing of the Maintenance
Agreement grievance before the Respondent’s September 21
repudiation of all obligations growing out of the Maintenance
Agreement. This being the case, the limitations period of
Section 10(b) did not expire on a charge relating to the July
13 request for information until March 21, about 3 months
after the January 25 original charge (which specifically in-
cludes that allegation) was filed.
The March 21 amendment to the charge necessarily in-
cluded the alleged unlawful refusal to process the July 13
grievance. Under the Redd-I doctrine, as discussed above, the
March 21 amendment regarding the refusal to entertain the
grievance was closely related to the original, timely filed,
charge of unlawful refusal to furnish information. Therefore,
the allegations of the complaint, that Respondent unlawfully
refused to entertain the July 13 Maintenance Agreement
grievance, and that Respondent refused to furnish informa-
tion necessary for the processing of that grievance, are sup-
ported by the complaint.
Finally, the trial amendment to the complaint, relating to
Respondent’s refusal to supply information pursuant to the
Union’s May 8, 1991 request for information, allegedly nec-
essary for preparation for the (unilaterally) requested arbitra-
tion of all three grievances, is supported by both the out-
standing original and amended charges over Respondent’s
preceding refusals to furnish the same, or other, information.
NLRB v. Fant Milling Co., 360 U.S. 301 (1959).
Accordingly, I conclude that all the allegations of the com-
plaint, as amended at trial, are supported by charges that
were filed within the limitations period of Section 10(b) of
the Act.
2. The substantive issues
The Respondent admits that the Union made the requests
for information and that it has failed to furnish the requested
information. Respondent admits that the Union requested
processing, including arbitration, of the grievances. Respond-
ent denies that it had any obligation to entertain grievances,
or furnish information relevant to the grievances, because
both contracts had expired. Respondent further denies that it
had an obligation to furnish the requested information be-
cause ‘‘the request for information herein is overly broad,
onerous, and not otherwise in accordance with the ‘surviv-
732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Answer, p. 3.
7 The General Counsel memorandum cited by Respondent is not
Board authority.
8 J. I. Case Co., 118 NLRB 520 (1957), enfd. 253 F.2d 149 (7th
Cir. 1958).
9 After all, Ross had asked Huddleston on June 28 for clarification
and more information about the June 8 grievance, and Huddleston
had complied; that is, the Union had demonstrated a cooperative atti-
tude.
10 Steelworkers v. American Mfg. Co., 363 U.S. 564 (1960).
11 Washington Star Co., 273 NLRB 391, 398 (1984); Cerro CATV
Devices, 237 NLRB 1153 (1978).
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
ing’ Section 8(a)(5) obligations imposed by the Act.’’6 The
answer also denies relevance of the information requested;
however, Respondent does not mention the subject of rel-
evance on brief. I find that all the information requested, as
it relates to preexpiration matters, is relevant to the griev-
ances that were filed.
Without citing any Board7 or court authority, Respondent
makes its contention that it had no statutory obligations after
the expirations of the contracts in question. In so arguing,
Respondent ignores clear Supreme Court precedent that ‘‘it
could not seriously be contended’’ that contract expiration
would terminate the contractual obligation to arbitrate dis-
putes based on preexpiration events. Nolde Bros. v. Bakery
Workers Local 358, 430 U.S. 243, 251 (1977).
Further, Respondent ignores the specific authority, cited by
General Counsel at the hearing, that the obligation to furnish
information relevant to grievance on preexpiration events
survives the contract. Jervis B. Webb Co., 302 NLRB 316
(1991).
Respondent answers that the requests are broad and oner-
ous. Respondent did not tell the Union that the requests were
broad and onerous, and the contention appears to be no more
than an afterthought. To the extent that the information may
be voluminous, all that is necessary is for the Respondent to
enter into reasonable arrangements with the Union for ex-
changing the requested information.8 The requests for infor-
mation are quite broad, but this factor, alone, is not a de-
fense. Again, Respondent makes the assertion for the first,
and only, time in the answer. If there had been confusion
about what was requested, Respondent could easily have
asked for clarifications.9 In the posture of the case as pre-
sented, the contention of broadness, or vagueness, is simply
another afterthought. Additionally, requests for information
need not be couched in terms of specificity required by the
ancient forms of action. The requesting party must meet only
a liberal, discovery-type standard. NLRB v. Acme Industrial
Co., 385 U.S. 432, 437 (1967). Under this standard, even a
request to produce ‘‘your books’’ has been held not to be un-
duly broad. Designcraft Jewel Industries, 254 NLRB 791
(1981), enfd. 675 F.2d 493 (2d Cir. 1982).
Respondent contends that its refusal to process the July 13
grievance under the Maintenance Agreement cannot be held
to be a violation because, as well as the 10(b) arguments
stated above, the Maintenance Agreement had no life of its
own and therefore expired when the underlying Master
Agreement expired on June 30. In making this argument, Re-
spondent is again arguing that it has no duty to entertain
grievances which are filed after an agreement expires, even
if the grievances are based on preexpiration events.
As stated above, under the authority of Nolde and Jervis
B. Webb, Respondent does have an obligation to entertain
timely filed grievances over preexpiration events. There is no
argument that the July 13 grievance was untimely under the
contracts; the contracts had no time limitations for the filing
of grievances. Therefore, Respondent would have a duty to
entertain the July 13 grievance, as it refers to preexpiration
matters, even if the Maintenance Agreement had expired on
June 30 along with the Master Agreement.
However, I find that the Maintenance Agreement had not
expired by July 13. Although the Maintenance Agreement
does incorporate the grievance procedure and arbitration pro-
visions of the Master Agreement, it nowhere indicates that
it would not do so if the Master Agreement were ever to ex-
pire. Moreover, Respondent’s letter of June 29, repudiating
all obligations under the Master Agreement, acknowledged
that the Maintenance Agreement was still in effect.
Finally, Respondent argues that the Maintenance Agree-
ment never was in effect because neither party invoked that
contract for any worksite; specifically, the parties did not
agree to apply the Maintenance Agreement to the site that is
the subject of the July 13 grievance, the Westfield Center
Clubhouse. This is a more plausible theory; however,
arbitrability is an issue to be presented to an arbitrator in the
first instance.10
In summary, I conclude that Respondent refused to furnish
requested information that was necessary for the processing
of grievances, and it refused to entertain grievances, in viola-
tion of Section 8(a)(5), as alleged.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate
the policies of the Act. I shall recommend that Respondent,
on request, furnish the Union with the requested information,
as such information may relate to preexpiration events. I
shall further recommend that Respondent be ordered to par-
ticipate in the demanded arbitrations, as required by the con-
tracts that it has entered.
General Counsel acknowledges that the Respondent no
longer employs any employees in any unit represented by the
Union. General Counsel therefore does not request posting of
the notice to employees at Respondent’s facility. On apposite
Board authority,11 General Counsel does request that Re-
spondent be ordered to mail the notice to employees to the
last known addresses of all employees who were represented
by the Union at the times of the June 29 and September 21
contract-repudiation letters issued by Respondent. It appear-
ing appropriate under the circumstances, I shall make that
recommendation.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondent, Oliver Insulating Company, Inc., Ash-
land, Ohio, its officers, agents, successors, and assigns, shall
733OLIVER INSULATING CO.
13 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
National 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.’’
1. Cease and desist from
(a) Refusing to bargain collectively with International As-
sociation of Heat and Frost Insulators and Asbestos Workers,
Local 84, AFL–CIO by refusing to furnish the Union with
requested information that is relevant to the processing of
grievances over matters that predate the expiration of its col-
lective-bargaining agreements with the Union.
(b) Refusing to entertain grievances and process them to
arbitration, if requested.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Promptly furnish to the Union the information speci-
fied in its requests of July 13 and August 31, 1990, and Jan-
uary 30 and May 8, 1991.
(b) Entertain and process to arbitration, if requested, the
Union’s grievances of June 8 and 29 and July 13, 1990.
(c) Mail to each employee represented by the Union on
June 29 or September 21, 1990, at each employee’s last
known home address, a copy of the attached notice marked
‘‘Appendix.’’13 Copies of the notice, on forms provided by
the Regional Director for Region 8, after being signed by the
Respondent’s authorized representative, shall be immediately
mailed to the employees as designated above. Five additional
signed copies shall be provided to the Union for posting at
its offices and meeting places, if it desires.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to abide by this notice, a copy of which the National Labor
Relations Board has also ordered us to mail to you.
WE WILL NOT refuse to bargain collectively with Inter-
national Association of Heat and Frost Insulators and Asbes-
tos Workers, Local 84, AFL–CIO by refusing to furnish the
Union with requested information that is relevant to the the
processing of grievances over matters that predate the expira-
tion of our collective-bargaining agreements with the Union.
WE WILL NOT refuse to entertain grievances and process
them to arbitration, if requested.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL promptly furnish to the Union the information
specified in its requests of July 13 and August 31, 1990, and
January 30 and May 8, 1991.
WE WILL entertain and process to arbitration, if requested,
the Union’s grievances of June 8 and 29 and July 13, 1990.
OLIVER INSULATING COMPANY, INC.