Velan Valve Corp.

National Labor Relations Board - Board Decisions

Apr 19, 1995

316 N.L.R.B. 1273 (N.L.R.B. 1995)

1273
316 NLRBNo. 193
VELAN VALVE CORP.
1 For the reasons stated by the judge, we reject the General Coun-
sel’s claim that the Respondent’s refusal to process earlier griev-
ances and its refusal to process the instant one establish a pattern
of unlawful conduct. Our dissenting colleague does not dispute this
conclusion.
2 All dates are in 1993 unless noted.
3 Although not addressed by the General Counsel, it appears that
the Union was contending that the subcontracting actually com-
menced on September 8.
4 The Respondent further maintained that the grievance was barred
under art. 14.6 which provides that individual grievances not proc-
essed within contractually prescribed time limits are ‘‘deemed to
have been resolved against the party failing to comply.’’ Our dis-
senting colleague argues that art. 14.6 is inapplicable because the
September 8 grievance was a ‘‘policy’’ rather than ‘‘individual’’
grievance which is expressly not covered by art. 14.6. For purposes
of our decision we find it unnecessary to determine whether the Re-
spondent was correct, under the contract, in citing art. 14.6 in addi-
tion to art. 14.5.
5 The judge found, and no party disputes, that the ‘‘issue’’ to
which the Respondent referred was the contractual time limits for
grievance filing.
Velan Valve Corporation and Local Lodge 2704,
District Lodge 109, International Association of
Machinists and Aerospace Workers, AFL–CIO.
Case 1–CA–31317
April 19, 1995
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On November 28, 1994, Administrative Law Judge
Steven M. Charno issued the attached decision. The
General Counsel filed exceptions and a supporting
brief.
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 and brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
The judge found that the Respondent did not violate
Section 8(a)(5) and (1) of the Act by refusing to arbi-
trate a September 8, 1993 subcontracting grievance.
The General Counsel excepts contending that the Re-
spondent’s refusal to arbitrate this grievance, as well as
certain earlier grievances, constitutes an unlawful pol-
icy of refusing to arbitrate any grievance it chooses.
For the following reasons, as well as those stated by
the judge, we reject the General Counsel’s argu-
ments—to which our dissenting colleague partially
subscribes—and find that the Respondent did not vio-
late the Act as alleged.1
The relevant facts are not in dispute. The Union rep-
resents a unit of the Respondent’s employees under the
terms of a 1992–1995 collective-bargaining agreement.
This agreement includes a three-step grievance proce-
dure followed by binding arbitration. Article 14.5 of
the 1992–1995 agreement provides that ‘‘[g]rievances
not presented within five (5) working days after the
circumstances giving rise to such grievances occurred
or should have been known shall not be considered as
valid.’’ Article 15.1 provides that any grievance not
settled under article 14 may be submitted to arbitration
at the election of either party.
On August 5, 1993,2 the Respondent wrote the
Union, stating ‘‘be advised that effective immediately
we shall subcontract all shop janitorial services.’’ The
August 5 notice listed all work affected by the Re-
spondent’s subcontracting decision. On August 20,
subcontracting commenced at the Respondent’s jobsite.
On August 23, the Respondent informed the Union
that a subcontractor was on the job.
On September 8, the Union filed a grievance pro-
testing the subcontract.3 Thereafter, the parties pro-
ceeded through the successive steps of the contractual
grievance procedure. At each step, the Respondent de-
nied the September 8 grievance as untimely under arti-
cle 14.5.4 The Respondent also argued that the sub-
contracting grievance lacked merit.
On November 11, the Union notified the Respondent
that it wanted to arbitrate the September 8 grievance.
It also asked the Respondent to join it in requesting a
list of arbitrators from the Federal Mediation & Con-
ciliation Service.
On November 18, the Respondent denied the
Union’s arbitration request. Specifically, the Respond-
ent wrote the Union stating, in part, that:
It has always been and continues to be Velan’s in-
tent to consider and discuss grievances at all lev-
els of the procedures contained in Articles 14 and
15, with the aim and intent to resolve same. This
grievance was no exception.
The Respondent further wrote, however, that arbitra-
tion of the subcontracting grievance was unwarranted
because it was untimely filed. Specifically, the Re-
spondent stated that: (1) the Union was notified of the
subcontracting decision on August 5; (2) the sub-
contract was let on August 6; (3) subcontractors began
working on the jobsite on August 20; and (4) the
Union was informed that subcontractors were on the
job on August 23. Based on these facts, and the agree-
ment’s explicit 5-day grievance-filing requirement, the
Respondent wrote the Union that ‘‘[t]he Company re-
fuses to allow an outsider to review an issue which has
been unequivocally resolved and settled by the lan-
guage of the Labor Agreement.’’5 Finally, in its No-
vember 18 letter, the Respondent also asserted that the
subcontracting grievance lacked merit.
On these facts, the judge initially determined that,
notwithstanding its timeliness defense, the Respondent
1274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 376 U.S. 543, 556–559 (1964).
7 Paramount Potato Chip Co., 252 NLRB 794 (1980).
8 In this regard, we note that the Union retains the option under
Sec. 301 to sue to compel arbitration of a grievance.
was contractually required under John Wiley & Sons
v. Livingston,6 and its progeny, to arbitrate the Septem-
ber 8 grievance. The judge further found, however,
that the Respondent’s failure to comply with this con-
tractual requirement did not automatically violate the
Act. Instead, the judge determined that Section 8(a)(5)
would be violated only if the Respondent’s contractual
breach clearly and unequivocally repudiated the con-
tractual arbitration provision. Because the judge found
that the Respondent’s refusal was limited to a ‘‘narrow
class’’ of grievances, i.e., only those failing to meet
the contract’s procedural time limits, he concluded that
the Respondent had not been shown to have repudiated
the contractual arbitration provisions. We agree.
It is well settled that not every employer refusal to
arbitrate violates Section 8(a)(5). Mid-American Mill-
ing Co., 282 NLRB 926 (1987). Where there is a re-
fusal to arbitrate all grievances,7 or where the refusal
to arbitrate a particular class of grievances amounts to
a wholesale repudiation of the contract, a violation will
be found. See Indiana & Michigan Electric Co., 284
NLRB 53 (1987). Conversely, if the refusal to arbitrate
is limited to a single grievance or specifically defined,
‘‘narrow class’’ of grievances, Section 8(a)(5) is not
violated. GAF Corp., 265 NLRB 1361, 1365 (1982);
Mid-American Milling Co., supra. The relevant inquiry
in determining whether an employer’s refusal to arbi-
trate violates the Act is whether the employer, by its
refusal, has thereby unilaterally modified terms and
conditions of employment during the contract term.
Southwestern Electric, 274 NLRB 922, 926 (1985).
We agree with the judge that the Respondent’s re-
fusal to arbitrate on timeliness grounds was not tanta-
mount to a wholesale repudiation of the contractual ar-
bitration provision. Cf. Airport Limousine Service, 231
NLRB 932, 934–935 (1977); Paramount Potato Chip,
supra. Thus, there is no evidence that, when the Re-
spondent refused to arbitrate the September 8 griev-
ance, it was announcing a broad policy of refusing to
arbitrate grievances generally. On the contrary, the Re-
spondent participated at each step in the grievance pro-
ceeding over the September 8 grievance. At each step,
it reaffirmed its position that the grievance was facially
invalid under the procedural time limits of the collec-
tive-bargaining agreement. And when refusing to arbi-
trate this grievance on November 18, it did so on the
limited, narrow basis that the grievance was contrac-
tually barred on timeliness grounds. Significantly, at
the same time as its refusal, the Respondent reassured
the Union that it remained committed to processing
grievances under article 14, and to article 15, the con-
tractual arbitration provision. In these circumstances,
we find that the Respondent’s limited refusal was not
unlawful. See, e.g., Central Illinois Public Service Co.,
139 NLRB 1407, 1418 (1962), enfd. 324 F.2d 916 (7th
Cir. 1963). We further find that its refusal involves
precisely that type of narrow, fact-bound, contractual
dispute that more properly should be handled by the
parties through the contract-dispute mechanism, and
not by recourse to the Board.8
Our dissenting colleague argues that the Respond-
ent’s refusal was not limited to a ‘‘narrow class’’ of
grievances because its timeliness defense could be ap-
plied to grievances concerning various subject matters.
For this reason, citing 3 State Contractors, 306 NLRB
711 (1992), the dissent contends that the Respondent
unlawfully imposed the position that it would ‘‘arbi-
trate only those grievances that it decided should go to
arbitration.’’ We disagree. 3 State Contractors is dis-
tinguishable. There, the Board concluded that since the
employer refused to arbitrate more than one grievance,
based on more than one theory, it effectively arrogated
to itself the determination of which grievances should
be arbitrated. Here, the Respondent refused to arbitrate
one grievance, and that refusal was based on the spe-
cific and narrow procedural ground of untimeliness.
Further, it is clear that the Respondent’s contention re-
garding untimeliness is one that is based on a reason-
able and good-faith interpretation of the contract. At
most, one can infer that the Respondent would refuse
to arbitrate on any occasion where it has a good-faith
and reasonable argument that a grievance is untimely.
However, even that position would be a far cry from
a wholesale repudiation of the arbitration provision of
the contract. Nor would that position permit the Re-
spondent to arrogate to itself the resolution of the time-
liness issue. The Union can file a Section 301 suit to
require arbitration of the issue of timeliness.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
MEMBER BROWNING, dissenting.
I would reverse the judge and find that the Respond-
ent violated Section 8(a)(5) and (1) of the Act by re-
fusing to arbitrate a grievance filed by the Union on
September 8, 1993, protesting the Respondent’s sub-
contracting of shop janitorial services. Contrary to the
judge and my colleagues, I find that the Respondent
has effectively unilaterally modified the grievance-arbi-
tration provisions of the parties’ collective-bargaining
agreement by reserving to itself alone the determina-
tion of which grievances are timely and therefore arbi-
trable under the contract.
The relevant facts are undisputed. Since 1981, the
Union has represented a unit of the Respondent’s em-
ployees under successive collective-bargaining agree-
1275VELAN VALVE CORP.
1 All subsequent dates are in 1993, unless stated otherwise.
2 It appears that the Union took the position that the subcontracting
did not actually begin until September 8.
3 Art. 14.6 provides that ‘‘individual grievances’’ which are not
processed in accord with the time limits of the grievance procedure
shall be deemed to have been resolved against the party failing to
comply with the time limits. (Emphasis supplied.) Art. 14.6, how-
ever, expressly does not apply to ‘‘Policy’’ grievances, which are
defined by the article as grievances filed by the Company or the
Union ‘‘of a general nature affecting the bargaining unit as a
whole.’’ The subcontracting grievance at issue here is clearly a
‘‘Policy’’ grievance, to which art. 14.6 is inapplicable. 4 GAF Corp., 265 NLRB 1361 (1982).
ments. Article 14 of the parties’ current 3-year contract
sets forth a three-step grievance procedure, and pro-
vides in article 14.5 that grievances which are ‘‘not
presented within five (5) working days after the cir-
cumstances giving rise to such grievances occurred or
should have been known shall not be considered as
valid.’’ The arbitration provision of the agreement, ar-
ticle 15, provides that grievances ‘‘not settled in ac-
cordance with Article 14’’ may be submitted to arbitra-
tion at the option of either party, and that, upon sub-
mission, the parties promptly shall make a joint request
for an arbitration panel.
On August 5, 1993,1 the Respondent informed the
Union in writing that ‘‘effective immediately we shall
subcontract all shop janitorial services.’’ The first sub-
contracted janitorial worker was assigned to the Re-
spondent’s facility on August 20 and, on August 23,
the Respondent informed the Union that subcontracted
workers were on the job. On September 8, the Union
filed a grievance protesting the subcontracting.2
The Respondent denied the grievance at each step of
the grievance procedure both on the merits and on the
ground that the grievance had not been filed within the
5-day time limit set forth in article 14.5. On November
11, the Union requested arbitration. In a memorandum
dated November 18, the Respondent rejected the
Union’s request for arbitration, stating that the griev-
ance was invalid because the grievance was untimely
filed under article 14.5 and therefore had been settled
against the Union under article 14.6 of the agreement.3
Most significantly, the Respondent’s November 18
memorandum to the Union also stated that: ‘‘[t]he
Company refuses to allow an outsider to review an
issue which has been unequivocally resolved and set-
tled by the language of the Labor Agreement.’’ The
judge found, and no one disputes, that the ‘‘issue’’ re-
ferred to in this statement is the contract’s procedural
time limits for the filing of a grievance.
The judge found that the Respondent had a contrac-
tual duty to arbitrate the subcontracting grievance be-
cause procedural issues, such as timeliness of a griev-
ance, are issues to be determined by an arbitrator and
do not relieve a party of its obligation to arbitrate. The
judge, however, found that the Respondent’s refusal to
arbitrate this single grievance did not violate Section
8(a)(5) because it did not evince an unequivocal repu-
diation of the arbitration provisions of the contract. In-
stead, the judge found that the Respondent was only
refusing to arbitrate a ‘‘narrow class’’ of grievances,
namely, those which it deemed did not meet the timeli-
ness requirement of the contractual grievance provi-
sion.
I disagree. Although the refusal to arbitrate a single
grievance or a ‘‘narrow class’’ of grievances does not
constitute a violation of Section 8(a)(5),4 the Respond-
ent’s refusal to arbitrate the September 8 grievance and
its November 18 statement denying the Union’s re-
quest for arbitration demonstrate that the Respondent is
not merely refusing to arbitrate a ‘‘narrow class’’ of
grievances but rather is refusing to arbitrate any griev-
ance—concerning any subject—that in its unilateral
judgment has not been filed or processed in a timely
manner. The threshold procedural arbitrability issue of
whether a grievance is timely applies to a broad range
of subject matters and indeed may arise in connection
with any grievance. The parties’ contract has expressly
vested in the arbitrator the determination of the
arbitrability of all grievances, and the Supreme Court
has clearly held that procedural arbitrability is properly
within the arbitrator’s domain. John Wiley & Sons v.
Livingston, 376 U.S. 543 (1964). Whatever the merits
of the Respondent’s argument as to timeliness of the
grievance, it must make that argument to the arbitrator;
the Respondent may not limit access to arbitration by
reserving for itself the exclusive right to evaluate the
timeliness of any particular grievance.
It is reasonable to foresee that there will be in-
stances where the parties have a legitimate dispute
about whether a grievance has been timely filed. These
situations will arise when the parties disagree about
when (in the words of art. 14.5) ‘‘the circumstances
giving rise to such grievances occurred or should have
been known’’ for purposes of computing the 5-day
time limit within which the grievance must be pre-
sented. In other words, it may not always be clear
what should be considered the event which triggers the
running of the contractual time limits or when the
Union should have been aware of this event. Past prac-
tice, oral waiver of contractual time limits, and other
similar arguments may also be advanced. Under the
Respondent’s stated and actual policy, the Union
would be deprived of the opportunity to present such
close and potentially availing factual issues to an arbi-
trator for determination, because the Respondent would
have refused to arbitrate based on its unilateral judg-
ment that the grievance was untimely.
Unlike the employer’s refusal in GAF Corp., supra,
to arbitrate a narrow, specifically defined subject mat-
ter, the Respondent’s refusal here is based on a sweep-
ing procedural matter which cuts across all kinds of
subjects that may be grieved. Here, the Respondent’s
1276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The facts appearing in this section are based on documentary ex-
hibits of record and appear to be uncontested.
2 The following employees are admitted to constitute an appro-
priate unit for the purpose of collective bargaining:
All production and maintenance employees, including shipping
and receiving employees, inspection, and raw material handlers
employed at Respondent’s Williston, Vermont facility, but EX-
CLUDING all office clerical employees, professional employees,
guards and supervisors as defined in the Act. 3 All dates hereinafter are 1993, unless otherwise indicated.
refusal to arbitrate the subcontracting grievance unlaw-
fully ‘‘unilaterally changed the terms of the collective-
bargaining agreement by imposing a noncontractual
condition that Respondent would arbitrate only those
grievances that it decided should go to arbitration.’’ 3
State Contractors, 306 NLRB 711 at 715 (1992). Ac-
cordingly, I dissent from my colleagues’ dismissal of
the complaint.
Michael Fitzsimmons, Esq., for the General Counsel.
Richard D. Hayes, Esq. (Sullivan & Hayes), of Springfield,
Massachusetts, for the Respondent.
William Rudis, of Stamford, Connecticut, for the Charging
Party.
DECISION
STEVEN M. CHARNO, Administrative Law Judge. In re-
sponse to a charge initially filed on January 24, 1994, a com-
plaint was issued on March 10, 1994, which alleged that
Velan Valve Corporation (Respondent) violated Section
8(a)(1) and (5) of the National Labor Relations Act (the
Act), by failing to continue in effect all the terms and condi-
tions of a collective-bargaining agreement with Local Lodge
2704, District Lodge 109, International Association of Ma-
chinists and Aerospace Workers, AFL–CIO (the Union). Re-
spondent’s March 25, 1994 answer denied the commission of
any unfair labor practice.
A telephonic prehearing conference took place on July 7,
and a hearing was held before me in Boston, Massachusetts,
on July 13, 1994. Simultaneous briefs were thereafter filed
by General Counsel and Respondent under extended due date
of August 29, 1994.
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation which manufactures valves at
a facility in Williston, Vermont. During the year ending De-
cember 31, 1993, Respondent, in the course of its operations
at Williston, purchased and received goods valued in excess
of $50,000 from points outside the State. It is admitted, and
I find, that Respondent is an employer engaged in commerce
within the meaning of the Act.
The Union is admitted to be, and I find is, a labor organi-
zation within the meaning of the Act.
II. THE ALLEGED VIOLATIONS
A. Factual Background1
Since 1981, an appropriate unit of Respondent’s employ-
ees2 has been represented by the Union. Respondent’s rec-
ognition of the Union as the exclusive bargaining representa-
tive of these employees has been embodied in a series of col-
lective-bargaining agreements, the most recent of which is
effective from October 1, 1992, to September 30, 1995. Arti-
cle 14 of that agreement, which sets forth a three-step griev-
ance procedure, provides in section 14.5 that grievances ‘‘not
presented within five (5) working days after the cir-
cumstances giving rise to such grievances occurred or should
have been known shall not be considered valid’’ and in sec-
tion 14.6 that grievances ‘‘shall be deemed to have been re-
solved against the party failing to comply’’ with the contrac-
tual time limits. Article 15 of the agreement, which governs
arbitration, provides in pertinent part:
15.1 Any grievance not settled in accordance with
Article 14 . . . may be submitted to arbitration at the
option of either the Company or the Union.
15.2 In the event that a grieving party (Union or
Company) submits a grievance or dispute to arbitration,
an Arbitrator shall be selected according to and shall be
governed by the following procedure:
If the grievance is not settled under Article 14 . . .
it may be taken to arbitration within thirty (30) cal-
endar days after receipt of the Union or the Compa-
ny’s Step III answer in writing.
The record reflects several disputes between Respondent and
the Union concerning the interpretation of this language.
In 1985, Respondent refused to arbitrate a discharge griev-
ance which had not been signed by the grievant during the
time period required by the agreement. The Union filed an
unfair labor practice charge which was dismissed by the
Board’s Regional Director because Respondent’s refusal to
arbitrate was ‘‘based solely on its reasonable interpretation of
the parties’ collective-bargaining agreement and its resultant
conclusion that it is under no obligation to arbitrate this
grievance.’’
Respondent refused to arbitrate a 1987 grievance arising
from its refusal to grant leave to an employee to attend the
funeral of his future wife’s grandmother. Respondent’s re-
fusal to submit the matter to arbitration was based on the
grievant’s failure to cite a contract violation and the fact that
the funeral was not held during working hours. The Union
again filed an unfair labor practice charge which was dis-
missed by the Board’s Regional Director because (1) Re-
spondent’s refusal was ‘‘based solely on its reasonable inter-
pretation of the parties’ collective bargaining agreement and
its resultant conclusion that it is under no obligation to arbi-
trate this grievance’’ and (2) ‘‘the refusal by an employer to
arbitrate a single grievance, even if the refusal is a contract
breach, is not itself an unfair labor practice.’’
In 1991, Respondent characterized an untimely request to
arbitrate a grievance as unreasonable. The record does not re-
veal whether any further action was taken by the Union on
this occasion. In response to a May 19933 request from the
Union to arbitrate grievance no. 93–2, Respondent stated its
belief that the grievance was ‘‘ineligible for arbitration’’
under section 14.5 of the collective-bargaining agreement be-
cause, inter alia, both the grievance and the request for arbi-
tration had been untimely filed.
1277VELAN VALVE CORP.
4 These facts are drawn from Respondent’s dated October 15 and
November 18 memoranda, which were not controverted by any evi-
dence of record.
5 The Supreme Court cited John Wiley & Sons v. Livingston,
supra, in support of its holding in AT&T Technologies v. CWA, 475
U.S. at 649.
6 Respondent contends that the evidence falls short of establishing
an actual refusal to arbitrate in 1991 and May 1993.
7 Given the holdings in text, I find it unnecessary to address Re-
spondent’s contentions that (1) its 1985 and 1987 refusals to arbi-
trate could not be unlawful conduct in view of the Board’s dismissal
of the related charges and (2) any of its refusals to arbitrate prior
to the final one are barred by the 6-month time limitation of Sec.
10(b) of the Act.
8 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.
The events which gave rise to this proceeding also took
place in 1993. By memorandum to the Union dated August
5, Respondent announced that it was going to subcontract
janitorial services. The first subcontracted worker was as-
signed on August 20, and Respondent directly informed the
Union on August 23 that subcontracted workers were on the
job.4 On September 8, the Union filed grievance no. 93–11
protesting the subcontract. At each step of the grievance pro-
cedure, Respondent denied the grievance on the merits and
because it had been filed after the time limit specified in the
collective-bargaining agreement. The Union requested arbi-
tration on November 11. By memorandum dated November
18, Respondent refused to arbitrate on the ground that the
grievance was untimely filed within the meaning of article
14.5 of the contract, was therefore resolved against the Union
pursuant to article 14.6 and, accordingly, was not susceptible
of arbitration under article 15. Respondent’s memorandum
further contended that the Union was acting in bad faith to
circumvent contract language and stated that Respondent
‘‘refuses to allow an outsider to review an issue which has
been unequivocally resolved and settled by the language of
the Labor Agreement.’’
B. Discussion
The General Counsel contends that Respondent committed
an unfair labor practice by refusing to continue in effect the
arbitration provisions of the 1992 collective-bargaining
agreement. Respondent, relying on AT&T Technologies v.
CWA, 475 U.S. 643, 649 (1986); and Xidex Corp., 297
NLRB 110, 111 (1989), contends that grievance no. 93–11
was not arbitrable and that it was under no legal obligation
to arbitrate until ordered to do so by the courts. While the
cases cited by Respondent establish that the courts, rather
than an arbitrator, must determine any threshold question of
whether the parties’ contract requires that the subject matter
of their dispute be submitted to arbitration, a procedural issue
arising out of that dispute, such as the timeliness of a griev-
ance or a request for arbitration, may be determined by an
arbitrator and the existence of such a procedural issue does
not relieve a party of its duty to arbitrate. John Wiley & Sons
v. Livingston, 376 U.S. 543, 556–559 (1964); 3 State Con-
tractors, 306 NLRB 711, 714 (1992).5 Accordingly, I find
that Respondent had a legal duty to arbitrate grievance no.
93–11.
Respondent argues in the alternative that, while a refusal
to arbitrate may violate the terms of its collective-bargaining
agreement, such a refusal does not constitute an unfair labor
practice. The General Counsel agrees that a single refusal to
arbitrate a grievance does not violate the Act, but contends
that Respondent’s conduct amounts to a repudiation of the
arbitration provisions of the collective-bargaining agreement.
Specifically, the General Counsel argues that (1) Respond-
ent’s prior refusals to arbitrate establish a pattern of unlawful
conduct and (2) Respondent’s November 18 statement
amounted to an unlawful policy. Assuming, arguendo, that
Respondent refused to arbitrate in 1985, 1987, 1991, May
1993, and November 1993,6 I find that the evidence in this
case does not establish sufficient continuity among Respond-
ent’s acts over the 9-year period at issue to demonstrate a
pattern of conduct which clearly and unequivocally repudi-
ates the arbitration provisions of the collective-bargaining
agreement. Four of Respondent’s five refusals turn in major
part on the Union’s failure to meet the grievance processing
deadlines imposed by the parties’ collective-bargaining
agreement. Even if a pattern of conduct were found to exist,
that pattern might be found lawful given the ‘‘narrow class’’
of refusal shown in this case.7 See 3 State Contractors, 306
NLRB at 715; GAF Corp., 265 NLRB 1361, 1364–1365
(1982). Examination of Respondent’s November 18 statement
in context forces me to conclude that its refusal to allow out-
side review of an ‘‘issue’’ was intended to refer exclusively
to the issue of the Union’s failure to meet the collective-bar-
gaining agreement’s procedural time limits. I therefore find
that Respondent’s November 18 statement referred to a ‘‘nar-
row class’’ of refusals, rather than a broad policy of refusing
to arbitrate any grievance which Respondent did not believe
should go to arbitration. See 3 State Contractors, supra; GAF
Corp., supra. For the foregoing reasons, I find that Respond-
ent was not shown to have repudiated the arbitration provi-
sions of its collective-bargaining agreement with the Union.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. A preponderance of the evidence does not establish that
Respondent violated the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The complaint is dismissed.