Ground Breakers, Inc.

146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ground Breakers, Inc. and United Mine Workers of America and United Mine Workers of America, District 31. Cases 6-CA-17898 and 6-CA- 18001 30 May 1986 DECISION AND ORDER By MEMBERS DENNIS, BABSON, AND STEPHENS On 31 July 1985 Administrative Law Judge James L. Rose issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel and the Charging Party filed answering briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions2 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Ground Breakers, Inc., Clarksburg, West Virginia, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order. ' The record shows that Willoughby and Harrison filed their first grievance on 27 December 1984 , not 21 December as the judge incor- rectly stated. 2 In adopting the Judge's conclusion that the Respondent unlawfully refused to provide the information the Union requested , we rely only on the Board's decision in United Technologies Corp, 274 NLRB 504 (1985), setting forth an employer's obligation to provide information relevant to a union's evaluation of employee grievances . We find it unnecessary to pass on the judge's discussion of whether arbitration clauses survive expi- ration of collective-bargaining agreements. Matthew M. Franckiewicz, Esq., for the General Counsel. Robert M. Steptoe, Esq., and Richard M. Yurko, Esq. (Steptoe & Johnson), of Clarksburg, West Virginia, for the Respondent. DECISION ' STATEMENT OF THE CASE JAMES L. ROSE, Administrative Law Judge. This matter was tried before me at Clarksburg, West Virginia, on 19 April 1985, on the General Counsel's complaint' which alleged that the Respondent refused to give cer- tain requested information to United Mine Workers of ' The charge in Case 6-CA-17898 was filed 22 January 1985. The charge in Case 6-CA-18001 was filed 21 February 1985. The consolidat- ed complaint issued 8 March 1985. America and United Mine Workers of America, District 31 (the Union), and refused to meet with the Union's designated agent in connection with a grievance pro- ceeding, thereby violating Section 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. The Respondent generally denied that it committed any unfair labor practices. In addition, the Respondent contends that that inasmuch as the information was re- quested subsequent to the expiration of the collective- bargaining agreement between it and the Union, it had no obligation to furnish the information. The Respondent further contends that the collective-bargaining agreement under which the grievance in question was processed specifically limits participation at that particular step to a committee of employees. Therefore, it was appropriate for the Respondent to refuse to allow the attendance or participation of a nonemployee union representative. On the record as a whole, including my observation of the witnesses, briefs, and arguments of counsel, I issue the following FINDINGS OF FACT AND CONCLUSIONS OF LAW I. JURISDICTION The Respondent is a West Virginia corporation en- gaged in the construction industry doing heavy earth work, heavy excavation, pipe laying, road work, and rec- lamation. Some of its work is performed in connection with coal mine operations. Annually the Respondent per- forms services valued in excess of $50,000 for enterprises, such as Consolidated Coal Company, which themselves meet the Board's direct inflow and outflow jurisdictional standards. The Respondent admits, and I find, that it is an em- ployer engaged in interstate commerce within the mean- ing of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is admitted to be, and I find is, a labor or- ganization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts The facts here are largely undisputed. As indicated, the Respondent is a small construction company doing some, but not all, of its business in connection with coal mine operations. In June 1979, and again in February 1982, the Respondent signed the collective-bargaining agreement between the Union and the Association of Bi- tuminous Contractors, a multiemployer bargaining asso- ciation representing employers engaged in coal mine con- struction. Though not a member of the Association, the Respondent became a party to the Association's contract with the Union and during the material period its em- ployees were represented by the Union and covered under the terms and conditions of those contracts. Though somewhat ambiguous from the record, the parties seem to agree that the Respondent 's employees were covered under the collective-bargaining agreement only for "union" jobs. For construction projects on 280 NLRB No. 14 GROUND BREAKERS, INC. which the Respondent was the successful bidder but not within the work jurisdiction as outlined in the collective- bargaining agreement, its terms would not apply. Thus, employees would be paid a wage rate dependent on whether the project was "union" or "non-union," and benefits would or would not be paid to the various trust funds on their behalf. The most recent collective-bargaining agreement to which the Respondent was a party expired on 30 Sep- tember 1984. To the date of the hearing, the Union had not approached the Respondent for purposes of negotiat- ing or executing any kind of a successor agreement. Robert Willoughby was first employed by the Re- spondent in early 1982 as a member of the bargaining unit, and thereafter worked on various projects for the Respondent until he was laid off in May 1984.2 After Willoughby was laid off for what he was told was lack of work, he learned that the Respondent was doing other jobs and, as a result, came to the conclusion that he had been treated unfairly by the Respondent. Thus, in December 1984, Willoughby went to the union hall with fellow employee Roy Harrison and talked to Business Agent Ricky Yanero. Among other things, Wil- loughby told Yanero that on a project which he under- stood was to have been covered under the collective-bar- gaining agreement, he was not paid union scale. Yanero made a brief investigation, checking docu- ments submitted to the Union by the Respondent, and concluded that sufficient questions were raised concern- ing whether the Respondent had breached the collective- bargaining agreement to investigate further. Thus, on 19 December 1984, Yanero wrote the Respondent's presi- dent, John P. Keeley III, and requested certain informa- tion concerning employees of the Respondent during 1984, the number of hours they worked on specific projects, and the like. On 16 January 1985, Keeley responded, stating that the Respondent had performed no work at certain mines named by Yanero in his letter and, further, that as to the Blacksville project, "work was not performed under the jurisdiction of United Mine Workers of America or under the 1981 contract." Finally, Keeley stated that because the 1981 contract had expired, the information requested by Yanero was not "relevant to any inquiry by you." Yanero responded to this letter with one dated 21 Jan- uary 1985, again requesting certain information and en- closing a second grievance dated 18 January, filed by Willoughby and Harrison. Willoughby and Harrison had filed a grievance on 21 December which had not been processed because, apparently, Respondent's counsel had advised that the Respondent was under no obligation to do so. There was no answer by the Respondent to Yanero's further demands of 21 January. However, a grievance meeting was arranged by Keeley for 7 February under the second step of the grievance procedure contained in Y On p 22 of the transcript there is an indication that he worked until December 1964, but this is in error. The transcript is corrected to read December 1983. 147 the expired collective-bargaining agreement (the first step having apparently been waived as not applicable). By separate letters dated 30 January, Keeley advised Willoughby and Harrison that the grievance meeting would be held on 7 February at the Respondent's shop. On 7 February, Willoughby and Harrison appeared with Yanero immediately prior to the scheduled time for the meeting. Keeley, in effect, told Yanero that he would not allow Yanero on the premises nor allow Yanero to par- ticipate inasmuch as step 2 of the grievance procedure provides only for a meeting between a committee of em- ployees and a representative of management. After some discussion concerning this, Yanero, along with Wil- loughby and Harrison, left. The meeting then proceeded with Edgar Sions, Danny Hedrick, and James Straight comprising the employee committee, and John Keeley representing the Respond- ent. The Respondent argued that the grievance was un- timely, to which the employee committee agreed and the grievance was denied . Inasmuch as both parties agreed on the disposition of the grievance, no further proceed- ings were taken concerning the claim of Willoughby and Harrison that they had not been recalled to certain named projects in May, June, July, August, and Septem- ber 1984, and were entitled to backpay. B. Issues The principal issues in this matter are:3 1. Whether the Union was entitled to the information requested, notwithstanding that at the time of the request the collective-bargaining agreement which the Union sought to police had expired. 2. Whether the Respondent was entitled to prohibit the presence and participation in step 2 of the grievance procedure of a nonemployee business representative for the Union. C. Analysis and Concluding Findings 1. Refusing to furnish information In United Technologies Corp., 274 NLRB 504, 506 (1985), the Board outlined its rule concerning an employ- er's obligation to give requested information to the union: It is well established that an employer has an ob- ligation to supply requested information which is reasonably necessary to the exclusive collective-bar- gaining representative's responsibilities . NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956). Included in such responsibilities is the processing and evaluating of employee grievances. The Board has held that an 3 Though denying that the Union was the duly designated representa- tive of its employees, the Respondent presented no facts nor offered any argument that the Union's status had changed. The Union had been rec- ognized by the Respondent in two collective-bargaining agreements. There are no facts to rebut the presumption that the Union continued in its representative capacity Accordingly, I conclude that the Union con- tinued its status as the representative of employees of the Respondent within the meaning of Sec. 9(a) of the Act See, e.g, Stratford Visiting Nurses Assn., 264 NLRB 1026 ( 1982). 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer is obligated to furnish information re- quested for the purpose of handling grievances. United-Carr Tennessee, 202 NLRB 729 (1973); Safeway Stores, 236 NLRB 1126 (1978). An actual grievance need not be pending at the time of the in- formation request, nor must the information request- ed clearly dispose of the grievance. Ohio Power Co., 216 NLRB 987, 991 (1975); Los Angeles Chapter, Sheet Metal Contractors, 246 NLRB 886, 888 (1979). The standard for the union's entitlement to the in- formation requested is a liberal, discovery-type test as to whether the information bears upon the union's determination to file a grievance or is help- ful in evaluating the merits of the grievance and the propriety of pursuing the grievance to arbitration. Los Angeles Chapter, Sheet Metal Contractors, supra. The information requested by Yanero in this matter clearly falls within the parameters of the Board's analy- sis; and, but for the fact that the collective-bargaining agreement had expired prior to the time the Union re- quested the information, there would be little argument that the Respondent was required to furnish it. Indeed, the Respondent does not contend that the material re- quested by the Union is not ordinarily of the sort re- quired to be furnished. In Nolde Bros v. Bakery Workers Local 358, 430 U.S. 243 (1977), the Supreme Court held that the arbitration clause of a collective-bargaining agreement survives its expiration. Nolde dealt with severance pay, a matter which could have become an issue only on the expiration of the collective-bargaining agreement (a fact which the Respondent contends distinguishes Nolde from the in- stant situation). Nevertheless, it is clear from the Su- preme Court's decision that the procedure by which the rights of parties under a collective-bargaining agreement are defined and resolved survives the expiration of the agreement. If ending the collective-bargaining agreement auto- matically extinguished a party's duty to arbitrate griev- ances arising thereunder, then an anomalous situation could result. As the Chief Justice noted, "Carried to its logical conclusion that argument would preclude the entry of a post-contract arbitration order even when the dispute arose during the life of the contract but arbitra- tion proceedings had not begun before termination. The same would be true if arbitration processes began but were not completed, during the contract' s term." Clearly then, under Nolde, a party's duty to abide by the mechanism for resolving grievances does not end with expiration of the contract. And, it appears in this matter that the Respondent, though arguing to the con- trary, concedes this point inasmuch as the Respondent in fact did meet pursuant to the grievance procedure con- cerning the Willoughby and Harrison grievance of 18 January, notwithstanding that the collective -bargaining agreement expired several months before. If the grievance resolution provisions of the collective- bargaining agreement survive its expiration, it necessarily follows that the Union's right to information to deter- mine whether grievances are meritorious and/or whether arbitration should be pursued, also survives. It may well be, as contended by the Respondent, that on the merits, the grievance of Willoughby and Harrison was untimely. Therefore, other grievances would have been untimely and arbitration by the Union would not have been successful . But the possible, even probable, outcome is immaterial to the issue of whether the Re- spondent is required to furnish information so the Union can perform its function of representing employees who file grievances or who might file grievances. The Re- spondent's duty under the Act is not relieved by show- ing, after the fact, that the Union might not have pre- vailed had it been given the information in a timely fash- ion. Further, the Respondent's defense on the merits was timeliness. Because there are exceptions to such defenses, it is far from certain that the Respondent would have been successful. In any event, by denying the informa- tion to the Union, the process was thwarted. Accordingly, I conclude that by denying the Union's request for information, the Respondent violated its bar- gaining obligations under Section 8(a)(5) of the Act. 2. Denying Yanero's attendance at the grievance meeting Article XXI, "Settlement of Disputes," of the most recent collective-bargaining agreement reads, in material part: Section (a) Grievance Committee A committee consisting of no more than three (3) employees shall be elected at each project of each Employer by the employees of that Employer at that project. The duties of the grievance committee shall be confined to the adjustment of disputes aris- ing out of this Agreement that the project manage- ment or the employee or employees fail to adjust. Section (b) Grievance Procedure Should differences arise between the mine con- struction workers and the Employer as to the mean- ing and application of provisions of this Agreement, or should differences arise about matters not specifi- cally mentioned in this Agreement, or should any local trouble of any kind arise at the project, an ear- nest effort shall be made to settle such differences at the earliest practical time. Disputes arising under this agreement shall be re- solved as follows: 2. If no agreement is reached between the em- ployee and his foreman, then within five (5) work days of the foreman's decision, the grievance shall be presented to the Employer in writing on the standard grievance form and shall be taken up by the grievance committee and a representative of management. If the parties then are unable to agree, step 3 provides that a representative of the Union will meet with a repre- sentative of the Employer. GROUND BREAKERS, INC. Inasmuch as step 2 provides for consideration of a grievance by the employee committee and step 3 pro- vides for the intervention of a designated agent of the Union, the Respondent argues that the contract therefore prohibits the presence of a union agent at a step 2 pro- ceeding. In Native Textiles, 246 NLRB 228, 229 (1979), the Board held, "The right of employees to designate and to be represented by representatives of their own choosing is a basic statutory policy set forth in Section 7 of the Act, and a fundamental right guaranteed employees by Section 7 of the Act." Thus, for an employer to deny employees this right by invoking the terms of the collec- tive-bargaining agreement , it must contain "a clear and unmistakable waiver of the Union's right to designate whomever it desires as its representatives for processing grievances." Absent such a clear and unmistakable waiver, an employer's refusal to meet with those desig- nated by the union in connection with grievance process- ing is violative of Section 8(a)(5) of the Act. In this case, the language relied on by the Respondent is not a clear and unmistakable waiver. Step 2 simply states that the employee committee will meet with a rep- resentative of the Employer and they will make a deci- sion concerning disposition of the grievance. There is nothing in step 2 which prohibits the presence of a non- employee representative of the Union. The Respondent, in effect, argues that by naming the grievance committee, the parties necessarily meant to ex- clude all others including the nonemployee representa- tive of the Union. Such an argument scarcely rises to the level of "clear and umistakable." As the Board noted in Native Textiles, we are dealing here not so much with a matter of contract interpretation as with a matter of em- ployees' rights under Section 7 of the Act. An employ- ee's right to be represented by a representative of his own choosing should not be so lightly denied. Here, indeed, had Yanero been allowed to attend the grievance meeting, it is certainly more than conceivable that his lay opinion concerning the timeliness of the grievance within the terms of the collective-bargaining agreement might have caused the employee committee to have reached a result different than simply agreeing with Keeley. In any event, since the contract does not specifically limit the presence of a nonemployee union representative at a step 2 meeting, there was no waiver and I conclude that by refusing attendance to Yanero at the 7 February meeting, the Respondent violated Section 8(a)(5) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices found above, occurring in connection with the Respondent's business, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof within the meaning of Section 2(6) and (7) of the Act. V. THE REMEDY 149 Having concluded that the Respondent engaged in the unfair labor practices found above, I shall recommend that it be ordered to cease and desist therefrom and take certain appropriate action designed to effectuate the poli- cies of the Act. I shall recommend that the Respondent be ordered to furnish the Union the information request- ed by it in its letters of 19 December 1984 and 21 Janu- ary 1985, and to re-refer to step 2 of the grievance pro- cedure under the 1981 collective-bargaining agreement the 18 January 1985 grievance of Robert Willoughby and Roy Harrison, allowing those employees to designate to represent them a nonemployee representative of the Union, and to continue to process this grievance through the settlement of disputes procedure of the collective- bargaining agreement. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 ORDER The Respondent, Ground Breakers, Inc., Clarksburg, West Virginia, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to bargain with United Mine Workers of America, and United Mine Workers of America, District 31, as the exclusive bargaining representative of employ- ees in the following bargaining unit by refusing to fur- nish it with information that it requested which is rele- vant and reasonably necessary to the processing of em- ployee grievances: All employees engaged in coal mine construction work covered by the National Coal Mine Construc- tion Agreement between the United Mine Workers of America and the Association of Bituminous Con- tractors; excluding supervisors, foremen, assistant foremen, office clerks, guards, engineering and tech- nical forces and timekeepers. (b) Refusing to allow grievants the right to have present at any stage of the processing of their grievance a nonemployee representative of the Union. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies,of the Act. (a) Furnish to the Union all information requested in its letters of 19 December 1984 and 21 January 1985. (b) Post at its office at Clarksburg, West Virginia, copies of the attached notice marked "Appendix."6 4 If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules and Regulations, the findings, conclusions , and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- Continued 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT refuse to bargain with United Mine Workers of America, and United Mine Workers of America, District 31, by refusing to furnish the Union with information relevant and necessary to the process- ing of employee grievances under the collective-bargain- ing agreement. WE WILL NOT refuse to bargain with United Mine Workers of America, and United Mine Workers of America, District 31 , by refusing to allow employees to designate a nonemployee representative of the Union to be present at any step of the grievance procedure. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL furnish United Mine Workers of America, and United Mine Workers of America, District 31, such information as it requested by letters of 19 December 1984 and 21 January 1985. GROUND BREAKERS, INC.