Appalachian Power Co., John E. Amos Plant

156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appalachian Power Company, John E. Amos Plant and United Steelworkers of America, Local Union No. 8621. Cases 9-CA-11951, 9-CA- 12192, and 9-CA-12235-2 17 November 1986 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 22 July 1986 Administrative Law Judge Wal- lace, H. Nations issued the attached supplemental decision. The Respondent and the General Counsel filed exceptions and supporting 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, and conclusions 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, Appalachian Power Company, John E. Amos Plant, Charleston, West Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the Order. James E. Horner, Esq., for the General Counsel. Guy Farmer, Esq., of Washington, D.C., and Frederic L. Sagan, of Columbus, Ohio, for the Respondent. DECISION STATEMENT OF THE CASE WALLACE H. NATIONS, Administrative Law Judge. On 17 January 1986 the Regional Director for Region 9 issued a notice of supplemental hearing in the above-cap- tioned proceeding. This notice relates that the Board, on 27 June 1980 issued its Decision and Order in 250 NLRB 228, directing Respondent Appalachian Power Company, John E. Amos Plant, it officers, agents, successors, and assigns to, inter alia, recognize and, on request, bargain collectively with United Steelworkers of America, Local Union No. 8621 as the exclusive representative, since 20 May 1977, of certain of Respondent's employees. The United States Court of Appeals for the Fourth Circuit on 8 April 1980 entered judgment enforcing the Board's Order.' Thereafter, a controversy has arisen over the ob- ligation of Respondent to comply with that portion of the Board's Order, as enforced, requiring Respondent to reinstate its established "Green Book" grievance-arbitra- tion procedure. ' Cert denied 454 U S. 866 (1981) Respondent has filed an answer to the notice submit- ting that it is in compliance with the Board's Order and is willing to arbitrate any grievance under the Green Book if the grievance is arbitrable under the provisions of the Green Book. A hearing was held before me regarding this dispute on 25 March- 1986 at Charleston, West Virginia. Subse- quently, briefs were received from the General Counsel and the Respondent. - I. DISCUSSION AND CONCLUSIONS The issue at this stage of the proceeding is whether Respondent should be required to arbitrate those griev- ances set out in detail in Respondent's Exhibit 15, and/or listed under subject matter heading in the General Coun- sel's Exhibit 2. A. Brief History of the Proceeding As stated in the Board's decision of 1980, Respondent's production and maintenance employees of its John E. Amos Electric Generating Plant had been unrepresented until 20 May 1977, when the United Steelworkers of America, Local Union No. 8621 (Union) became the cer- tified collective-bargaining representative of an appropri- ate unit of employees. Prior to 20 May 1977, the employ- ees were governed by a set of rules and regulations as stated in the Green Book which, inter alia, provided for an arbitration procedure. The question to be answered in this proceeding is whether Respondent should be re- quired to arbitrate grievances which arose during the period from 20 May 1977 when the Union was certified, until 10 May 1979, when the Union and Respondent agreed upon an initial collective-bargaining agreement. The Board's Order specifically required Respondent to reinstitute, "its established grievance-arbitration proce- dure for the unit employees." As noted above, Respondent appealed the Board's Order, including the requirement of reinstituting its Green Book grievance-arbitration procedure. The Fourth Circuit rejected Respondent's contention and enforced the Board's Order. Respondent continued its appeal until 5 October 1981 when the Supreme Court denied its peti- tion for a writ of certiorari, without opinion, in 454 U.S. 866. After the petition for a writ of certiorari was denied, Regional Office personnel met with the parties to work out arrangements for processing outstanding grievances. The compliance officer for Region 9 and the Union nar- rowed their grievance to 12 main issues, some involving one grievance and others involving a number of griev- ances. These are set forth in the record as General Coun- sel's Exhibit 2. Although Board personnel and Respond- ent's personnel met on a number of occasions leading up to this hearing, neither side's position was satisfactory to the other. The Regional Office's position is that there are approximately 70 outstanding grievances which should be arbitrated under the Green Book procedure, and Re- spondent's position up to the hearing was that there was, at most, only 5 grievances that were proper for arbitra- tion under that procedure. Respondent states that it stands willing to comply with the Board's Order but as- 282 NLRB No. 26 APPALACHIAN POWER CO 157 serts that under the Board's Order the vast majority of the involved grievances are not arbitrable because they are either (1) not timely processed through the Green Book procedure, or (2) not arbitrable under the express criteria of the Green' Book. These two defenses to the Region's demand for arbitration of the involved out- standing grievances will be discussed below. B. Respondent's Timeliness Defense As noted above, certification of the Union was on 20 May 1977 and the execution of the first union contract was on 10 May 1979. There was no contract in effect be- tween the parties during this "period of time. However, during that interim period, bargaining unit members and the Union filed a number of grievances under the Green Book. Shortly after certification, it was agreed between the Union and the Company that grievances would be proc- essed through the third step of the grievance procedure of the Green Book, the plant manager step. The Union was to process any grievances through these steps with union representation of the 'grievant. Later, on 1 June 19782 the parties agreed in writing to move the third-step grievances to the fourth and final step of the grievance procedure. Shortly after agreement was reached, the Company re- quested a meeting to begin processing of grievances at the fourth step. E. C. Bradley, then personnel manager of the John E. Amos Plant of Respondent, requested that the Union make a written request as to which grievances were to be processed at step four. On 20 July, in re- sponse to this request, Frank Grover Jr., president of the Local Union, wrote Bradley acknowledging his request and requesting in the letter that "all unsettled grievances that were filed since Union certification (in the bargain- ing unit) and are now through step three be referred to step four." The letter further requested that the Local Union get all copies of outstanding grievances. This letter was responded to by Bradley on 25 July in a letter, setting out all outstanding grievances and supply- ing copies of the grievances to Grover. Also, on 26 July, H. E. Rhodes Jr., then labor relations supervisor for Re- spondent, wrote Grover stating that he would be avail- able to meet with Grover at the Amos Plant on Tuesday, 8 August, to hear the grievances at the fourth step. A meeting was held on 8 August and eight grievances were discussed. On 24 and 25 August Rhodes wrote to Grover and gave the answer to the fourth-step grievances which were heard on 8 August. Following the 8 August meeting, the Union did not take any of the remaining grievances to step four. The Company attempted to obtain the' Union's cooperation in completing processing of the remaining grievances through step four. Documentation introduced into the record reflects that on 1 December the Company wrote a letter to Grover stating,, in effect, that since 8 August the Company had heard nothing from the Union in regard to the processing of grievances at the fourth step and suggested a meeting be held on 7 December to "con- 2 All dates are in 1978 unless otherwise stated. tinue hearing the fourth step- grievances which you had requested be processed to that step." Grover did not comply in writing, but advised the Company through Bradley that it was his understanding that he "could not handle fourth step grievances" and he would have the International Union contact the Compa- ny about them. Evidently, nothing transpired between 6 December and 4 January 1979 because on the later date O. P. Cornelison on behalf of Respondent wrote to Wil- born Boothe, the International representative responsible for the involved bargaining unit, briefly describing what had transpired since 8 August and requested the Union to respond and proceed with the grievances. On 16 February 1979 Cornelison wrote to Judith Boyd, staff representative of the Union, noting the 4 Jan- uary 1979 letter to Boothe, and further noting that the Company had been notified by Boothe that Boyd was now the representative of the International responsible for the affairs of the involved local. The letter goes on to state that the Company was willing to conduct fourth- step grievances if the Union wished to process griev- ances at that level. The Company received no response from Boyd nor anyone else connected with the Union. Therefore, as far as the record shows, the only involved grievances proc- essed to the fourth step were the eight grievances proc- essed in August. The involved substantive provision in the Green Book requires that to be arbitrable the grievance must meet the time limits set out in the Green Book and be processed through to the fourth step. It is Respondent's position that with respect to all but the eight grievances proc- essed to the fourth step on 8 August none of the remain- ing grievances meet the substantive requirements of the Green Book and thus are not subject to arbitration. The Board's Order requiring reinstatement of the Green Book procedure did not go further and require processing of interim grievances. As the Board's Order did not require Respondent to go beyond the Green Book procedures, I find that ordering Respondent to ignore the substantive time-limitation provisions of the Green Book would re- quire it to do more than the Board's original Order and, therefore, will not so order.3 The General Counsel urges that because of confusion in the minds of the employees filing grievances during the involved period, the failure to timely process their grievances to the fourth step should be overlooked. I disagree. Regardless of the state of mind of 'individual bargaining unit members, the Union had the responsibility of processing grievances during the period of time in question. The Union agreed with Respondent to take grievances through the fourth step and, as shown, did process a few to that level. Thereafter, though repeatedly requested by the Compa- ny to do so, no more grievances were processed to the fourth step and no reason was given for the failure to do so. The fact that an ongoing controversy existed during this timeframe as to the ultimate arbitrability of the in- volved grievances does not excuse the Union 's inaction 3 Of the grievances heard in August , only five are among those sought to be arbitrated at this date , to wit, Nos. 77-20, 77-24, 79-69, 79-71, and 79-73 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in processing the grievances to the last level pursuant to its agreement with Respondent. C. Respondent's "Standard for Arbitrability" Defense As found above, all but five of the grievances sought in this proceeding to be arbitrated will not be found to be arbitrable because they were not processed through the grievance procedures as set ' forth clearly in the Green Book. Two of the remaining grievances Respondent admits are arbitrable and is willing to arbitrate, Nos. 77-20 and 77-24. This leaves three grievances, No. 79-69, 79-71, and 79-73 which Respondent contends are not arbitrable because they involve overtime distribution and there is no reference to "overtime distribution" in the Green Book. Respondent contends that to be arbitrable under the Green Book, a grievance must involve a suspension or discharge or the application or interpretation of a pro- vision of the Green Book. On brief, Respondent contends that customary prac- tices are not arbitrable under the Green Book and that the Union attempted to justify arbitration on the over- time distribution grievances on the grounds that it was a custom of the plant's operation which is carried forth in specific language in the first agreement with the Union. Respondent asserts that there is no specific provision in the Green Book relating to overtime distribution; there- fore, the fact that there was a certain practice and custom respective to overtime distribution is irrelevant. Respondent's Exhibit 14 is the record of the only inci- dence of a grievance taken to arbitration at the involved plant prior to the 1977 certification. Reading of the grievance file shows that although certain provisions of the Green Book are cited, the situation involved was ac- tually not covered by any particular provision of the Green Book and the arbitrator decided the case based on a showing of the Company's past practice. It is arguable that grievances 79-69, 79-71, and 79-73 relating to overtime distribution can involve an interpre- tation of the Company's Green Book provisions relating to hours of work, shift premium, overtime payments, and call-outs as well as the introduction to the Green Book and perhaps other provisions. It is not within my author- ity to determine the merits of these various grievances. However, I do believe that they fall within the wording of the provision relating to arbitrability in that they in- volve the application and interpretation of sections of the employee manual. As these grievances were processed through step four of the grievance procedure, they qual- ify for arbitration on procedural and timeliness grounds. For the reasons stated, I find that Respondent must pro- ceed to arbitration on grievances 77-20 and 77-24; 79- 69, 79-71, and 79-73 in order to be in compliance with the Board's Order as enforced. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 ORDER The Respondent, Appalachian Power Company, John E. Amos Plant, Charleston, West Virginia, its officers, agents, successors, and assigns, shall Comply with the order of the National Labor Rela- tions Board issued on 27 June 1980 in this matter and proceed to arbitrations, on grievance Nos. 77-20 and 77- 24; 79-69, 79-71, and 79-73. 4 If no exceptions are filed as provided by Sec. 102 46 of the Board's Rules - and Regulations, the fmdmgs, 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.