Missouri Portland Cement Co.

432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Missouri Portland Cement Company and Local 438, United Cement, Lime, Gypsum and Allied Workers International Union, Division of Inter- national Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers AFL-CIO-CLC. Cases 14-CA-17579 and 14- CA-178l2 22 June 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 30 May 1986 Administrative Law Judge Richard L. Denison issued the attached decision. The General Counsel and the Charging Party 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, fmdings, and conclusions only to the extent consistent with this Decision and Order. The pertinent facts are not in dispute. The Re- spondent manufactures and distributes cement and related products and has had a collective-bargain- ing relationship with the Union since 1963. The most recent contract expired on 1 May 1984. 1 Ne- gotiations to reach a new agreement failed and on 15 June the employees went out on strike. The Re- spondent hired permanent replacements for the striking employees and on 29 June implemented its fmal offer. On 6 August the Union, on behalf of the strikers, made an unconditional offer to return to work, and the striking employees were placed on a preferential hiring list. As part of its final offer, the Respondent changed the provisions of the expired agreement defining who may represent employees at griev- ance meetings. Article III, section 1, of the expired agreement2 stated: In matters arising out of the application and interpretation of this Agreement, the Joppa Plant employees shall be represented by a committee of the President and Vice President of the Local and four (4) active employees of the Joppa Plant. Cave-In-Rock employees shall be represented by a committee of the President of the Local and two (2) active em- ployees of the Cave-In-Rock quarry. 1 Unless stated otherwise all dates are in 1984. 2 Hereinafter referred to as the 1984 agreement. In article 3, section 1, of the Respondent's final offer this language was changed as follows: In matters- arising out of the application and interpretation of this Agreement, the Joppa Plant employees shall be represented by a committee of five (5) active employees of the Joppa Plant. Cave-In-Rock employees shall be represented by a committee of two (2) active employees of the Cave-In-Rock Quarry. Thus, the Respondent's final offer required that all representatives be "active employees," deleting the specific inclusion of the union president and vice president. According to article 3, section 4, of the final offer, representatives are to be compensated "at their regular classified hourly wage rates for sched- uled time lost while attending" the grievance meet- ings. Article III, section 4, of the 1984 agreement did not include the word "classified" but otherwise was identical to the final offer. Article XV, section 3, of the 1984 agreement provided for a Joint Safety and Health Committee "consisting of four members, two appointed by the Company and two appointed by the local union." Article XV, section 3, also stated that time spent in connection with the work of the committee was to be "compensated at the employee's regular straight-time hourly wage rate." The Respondent's fmal offer at article 14, section 3, includes identical provisions. On 15 November the Respondent began to deny the Union's requests to have the unit employees' designated representative, Union President Beck, meet with the Respondent's representative to proc- ess grievances prior to step 3 of the grievance pro- cedure. 3 The Respondent also, on 15 November 1984, announced its refusal to meet with the em- ployees' designated representatives to the Joint Safety and Health Committee, Union President Beck, and Vice President Barnhill. The Respondent justified these refusals by claiming that Beck and Barnhill were not active employees as required by the implemented final offer language in articles 3 and 4 and therefore were not eligible to represent employees in grievance and safety and health mat- ters. The Respondent explained that by "active" it meant employees currently on its payroll. Under the Respondent's interpretation, Beck and Barnhill, 3 The Respondent agreed to meet with Union President Beck at the third stage of the grievance process because the final offer carried over the 1984 agreement's language and specifically provided for an official of the Union to be present at that stage. 284 NLRB No. 60 MISSOURI PORTLAND CEMENT CO. 433 who were on the preferential hiring list, were not "active."4 The judge found that the Respondent's imple- mentation of its fmal offer was lawful because there was no allegation that the Respondent violated Section 8(a)(5) of the Act. The judge also found that because the Union made an unconditional offer to go back to work, it was bound by the provisions of the final offer. The judge treated the issue as a matter of contract interpretation and agreed with the Respondent in finding that "active" meant em- ployees currently on the payroll. The judge con- cluded that the references to regular straight-time rate and regular classified hourly rate as the meas- ures of compensation due employee representatives indicated that only currently working employees were to serve on the committees. Accordingly, the judge found that no 8(a)(1) violation resulted from the Respondent's refusal to meet with the union president as the Union's designated representative for processing grievances or from the refusal to meet with the union president and vice president as the Union's designated representative to the Joint Safety and Health Committee. The General Counsel argues that the judge avoided addressing the central legal issue in dis- pute—whether the Respondent unlawfully contra- vened the Union's statutory right to designate its representatives—by concluding that the Respond- ent's implementation of its final offer was lawful merely because there was no 8(a)(5) violation al- leged. We agree with the General Counsel. There was no need to establish an 8(a)(5) violation in order to fmd that the Respondent violated Section 8(a)(1) through its refusal to meet with the employ- ees' representatives for grievance resolutions and participation in the Joint Safety and Health Com- mittee.5 Section 7 of the Act encompasses the right of employees, acting through their union, freely to select their representatives for the processing of grievances and discussion of workplace matters such as those handled by the Joint Safety and Health Committee. 6 Although a party lawfully 4 Although the provisions relating to the Joint Safety and Health Com- mittee did not contain the "active" employee language, the Respondent relied on the fact that the employee representatives were to be compen- sated at their "regular straight-time hourly rate" as evidence that only employees currently on its payroll were eligible to serve on the commit- tee. The Respondent contended before the judge that it had bargained to impasse on its final contract offer and that it was entitled to implement the restrictions on the Union's representatives as part of that final offer. As we explain at fn. 13, infra, that defense is without merit because the identity of a party's bargaining representative is not a mandatory subject of bargaining, and the Respondent was therefore not free either to insist on it to impasse or to implement it. Native Textiles, 246 NLRB 228, 229 (1979). may, under certain circumstances, refuse to meet with another party's bargaining representatives, the party making such a refusal must establish that the representatives with whom it refuses to meet have created by their own actions an atmosphere of such ill will that good-faith bargaining is virtually im- possible or that their participation in bargaining otherwise represents a clear and present danger to the bargaining process. 7 The circumstances justify- ing a refusal to meet with particular representatives are, therefore, quite restricted. No such circum- stances are present in the instant case. Instead, the Respondent simply predicated its refusal on its al- leged right to do as it wished pursuant to its collec- tive-bargaining proposals on which, according to its claim, it had previously bargained to impasse. Thus, the evidence establishes that the Respond- ent, without showing that it came within any of the recognized exceptions, restricted the class of per- sons from whom the Union could select grievance and safety and health representatives, and the Re- spondent thereby interfered with the employees' Section 7 right to select their own bargaining rep- resentatives. 8 Such an infringement on this Section 7 right would be lawful only if the Union clearly and unmistakably waived the right.° No such waiver was established in this case. Certainly, the bargaining history of the parties does not indicate that the Union waived its statuto- ry right to designate its representatives. In fact, during the negotiations, the Union objected to the proposed changes in the representation provi- sions." Nor can the Union's unconditional offer to 7 Sahara Datsun, 278 NLRB 1044 (1986) (employer was not required to negotiate with the union bargaining representative where that repre- sentative disparaged the respondent's reputation and made published alle- gations of a highly personal nature against the respondent's owners, some of whom were likely to participate in the bargaining negotiations; such conduct was deemed to create an atmosphere of ill will that made good- faith bargaining virtually impossible); Fitzsimmons Mfg. Co., 251 NLRB 375, 379 (1980) (employer not obligated to meet with union representa- tive who, without provocation, physically assaulted the respondent's per- sonnel director during a grievance meeting, since this created ill will making good-faith bargaining with the representative virtually impossi- ble); Electrical Workers IBEW Local 1212 v. NLRB, 557 F.2d 995, 998- 1000 (2d Cir. 1977), enfg. 226 NLRB 537 (1976) (applying "clear and present danger" standard, finds employer not obligated to bargam with union team that included representatives from a labor organization that did not represent the unit employees and that would acquire confidential proprietary information during bargaining that might be transmitted to competitors whose employees that labor organization did represent). See Shell Oil Co., 93 NLRB 161 (1951). 9 See Metropolitan Edison v. NLRB, 460 U.S. 693, 708 (1983); Ground Breakers, Inc., 280 NLRB 146 (1986); Native Textiles, supra, 246 NLRB at 229. 79 The exact extent of the negotiations over the proposed changes is unclear, but it appears that discussion over the deletion of the union offi- cials from the representation provision was brief and that there was no discussion at all of the application of the "active" qualifier to persons on the preferential hire list. What is clear is that the Union never agreed to the restrictions on its right to select its grievance and health representa- tives. 434 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD return to work, without more, be construed as a waiver of this statutory right. That offer merely served notice that the strike had ended and that the employees were willing to return to work under the changes in the terms and conditions of employ- ment brought about by the Respondent's imple- mentation of its final offer. It did not indicate that the Union accepted the changes included in the fmal offer that limit the Union's statutory right to select its grievance and safety and health represent- atives. There was no collective-bargaining agree- ment between the parties, and the parties continued to negotiate in an effort to reach a new agreement even after the Union made its offer to return to work. Since there was never any acceptance by the Union of any provision restricting its right to select its representatives, there was never a waiver by the Union of that statutory right. Thus, all that is left is the Respondent's bald unilateral implementation of the provisions restricting the Union's right to select its representatives. That implementation by the Re- spondent can in no way be deemed a clear and un- mistakable waiver by the Union of the statutory right. Moreover, the Respondent's own actions indicate that the Union did not waive its statutory right to select its representatives. With respect to represen- tation for the purpose of processing grievances, the Respondent, in October, 2 months after the Union's offer to return to work, allowed Union President Beck to participate in a grievance meeting at the Cave-in-Rock facility." Beck's participation in that meeting, without objection by the Respondent, is evidence that the Respondent itself did not believe that the Union had agreed to his exclusion by virtue of the strikers' unconditional offer to return to work. 1 2 With respect to the Union's representation of the Joint Safety and Health Committee, it is true that the Respondent was relying on language that was unchanged from the previous contract to which the Union had agreed. But the evidence shows that the parties had never construed that language as re- strictively as the Respondent sought to do on 15 November, when it announced its refusal to meet with Union President Beck and Union Vice Presi- dent Barnhill. Indeed, in the past, even a dis- charged employee of the Respondent (who was also, like Beck and Barnhill, an official of the 11 The 1984 agreement's representation provision specifically included the union president in grievance meetings at the Cave-In-Rock facility. The union president's inclusion was deleted in the Respondent's final offer. 52 Beck's participation in that meeting also indicates that, until its sub- sequent refusal to meet in November, the Respondent did not necessarily interpret the "active" qualifier as excluding persons on the preferential hire list. Union) had been permitted to represent the em- ployees on the Joint Safety and Health Committee, notwithstanding that his claim to be a current em- ployee was considerably more tenuous than the claims of former strikers on a preferential hiring list. Thus, whatever might be the merits of an argu- ment that the contract language, standing alone, manifested the Union's agreement in previous con- tracts to the exclusion of employees other than those currently on the payroll, the parties' past ad- ministration of that clause was such that the Union's agreement to it did not constitute the clear and unmistakable waiver that is required for the sacrifice of the Section 7 right at issue here. Accordingly, because the Union did not waive the employees' Section 7 right to select their repre- sentatives, the Respondent's refusal to meet with the union president as the employees' designated representative for processing grievances and its re- fusal to meet with the union president and vice president as the employees' designated representa- tives to the Joint Safety and Health Committee violated Section 8(a)(1) of the Act.13 CONCLUSIONS OF LAW 1. By refusing to meet with the Union's designat- ed representative for processing grievances based on the implemented terms of its final offer limiting the class of persons from which the Union could select its grievance representatives, the Respondent interfered with its employees' Section 7 rights in violation of Section 8(a)(1) of the Act. 2. By refusing to meet with the Union's designat- ed representatives to the Joint Safety and Health Committee based on the implemented terms of its final offer limiting the class of persons from which the Union could select its Joint Safety and Health Committee representatives, the Respondent inter- 13 There is no merit to the defense, raised by the Respondent before the judge, that it was permitted to intrude into the employees' selection of their representatives because the Respondent had previously bargained to impasse on the grievance and safety conunittee proposals and was privileged to implement them unilaterally thereafter. This argument is based on the proposition, among others, that the determination of the identity of a party's bargaining representatives is a mandatory subject of bargaining, for a party is not free to insist to impasse on nonmandatory subjects. NLRB v. Borg-Warner Corp., 356 U.S 342, 349 (1958) There may well be some aspects of the proposals that are mandatory subjects. See, e g, Axelson, Inc. v. NLRB, 599 F.2d 91, 94 (5th Or 1979), and cases there cited (whether employees will be paid for time spent on grievance negotiations is a mandatory subject). The question of who shall represent bargaining unit employees, however, is not a subject on which an employer can insist on having its way except, as noted above, where the presence of the chosen representative would make good-faith bargain- ing virtually impossible. Shell Oil Co., 91 NLRB 161, 163 (1951). See also NLRB v. Borg-Warner Corp., supra, 356 U S. at 350 (employer could not insist that the certified representative of the employees not be party to the collective-bargaining agreement); NLRB v. Signal Mfg. Co., 351 F.2d 471 (1st Cir. 1965) ("right of employees to be represented by officials of their own choice" in grievance handling overcomes employer's desire to declare the individual "persona non grata"). MISSOURI PORTLAND CEMENT CO. 435 fered with its employees' Section 7 rights in viola- tion of Section 8(a)(1) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order the Respondent to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. ORDER* The Respondent, Missouri Portland Cement Company, Joppa, Illinois, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Interfering with its employees' Section 7 rights in violation of Section 8(a)(1) of the Act, by refusing to meet with Local 438, United Cement, Lime, Gypsum and Allied Workers International Union, Division of International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL-CIO-CLC's designated representative for processing grievances based on the implemented terms of its fmal offer limiting the class of persons from which the Union can select its grievance representatives. (b) Interfering with its employees' Section 7 rights in violation of Section 8(a)(1) of the Act, by refusing to meet with the Union's designated repre- sentatives to the Joint Safety Health Committee based on the implemented terms of its final offer limiting the class of persons from which the Union can select its Joint Safety and Health Committee representatives. (c) Interfering with its employees' Section 7 rights in violation of Section 8(a)(1) of the Act, by holding safety meetings without adequate advance notice to the Union, and/or using company-ap- pointed employee representatives in place of offi- cially designated union representatives. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, meet with the Union's designated representatives for processing grievances. (b) On request, meet with the Union's designated representatives to the Joint Safety and Health Committee. (c) Schedule safety meetings only following ade- quate notice to and consultation with the Union, * The Board modified its Order as set forth at 291 NLRB No. 146 (Dec. 9, 1988). and participate in such meetings only with properly designated representatives of the Union. (d) Post at its Joppa and Cave-In-Rock quarry facilities near Joppa, Illinois, copies of the attached notice marked "Appendix."" Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that Case 14-CA-17579 is severed. IT IS FURTHER ORDERED that the complaint is dismissed in all other respects. 14 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcmg 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 meet with Local 438, United Cement, Lime, Gypsum and Allied Work- ers International Union, Division of International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL-CIO-CLC's designated representative for processing grievances based on the implemented terms of our final offer 436 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD limiting the class of persons from which the Union can select its grievance representatives. WE WILL NOT refuse to meet with the Union's designated representatives to the Joint Safety and Health Committee based on the implemented terms of our final offer limiting the class of persons from which the Union can select its Joint Safety and Health Committee representatives. WE WILL NOT conduct safety meetings without adequate advance notice to or consultation with the Union; nor will we participate in such meetings with company-appointed representatives in place of a committee officially designated by the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL, on request, meet with the Union's des- ignated representatives for processing grievances. WE WILL, on request, meet with the Union's des- ignated representatives to the Joint Safety and Health Committee. WE WILL schedule safety meetings only follow- ing adequate notice to and consultation with the Union, and participate in such meetings only with properly designated representatives of the Union. MISSOURI PORTLAND CEMENT COM- PANY Stephen D. Smith, Esq., for the General Counsel. Arthur M. Brewer, Esq. (Shawe & Rosenthal), of Balti- more, Maryland, for the Respondent. J. F. Souders, Esq. (Gruenberg, Souders & Levine), of St. Louis, Missouri, for the Charging Party. DECISION STATEMENT OF THE CASE RICHARD L. DENISON, Administrative Law Judge. This case was heard at St. Louis, Missouri, on 19 No- vember 1985, based on an original charge in Case 14- CA-17812, filed 22 May 1985 and subsequently amended. The complaint, as amended, alleges that the Respondent violated Section 8(a)(1) of the Act by refusing to meet with designated agents of the Union for the purposes of making safety and health inspections of Respondent's plant, and for the purpose of considering employee grievances prior to step 3 of the grievance procedure.' The Respondent's answer, as amended, admits refusals to meet with the Union's designated agents under the cir- cumstances alleged, except that the Respondent denies At the outset of the hearing the General Counsel expressed a desire, pursuant to a partial informal settlement, to withdraw the allegations of the complaint pertaining to companion charge Case 14-CA-17579. Since it appeared to me that the proposed settlement would effectuate the pur- poses of the Act, counsel for General Counsel's motion to delete pars. IA and 5A, B, and C, from the complaint and to sever Case 14-CA-17579 from these proceedings was granted. that its refusals were contrary to "established conditions of employment," as alleged in the complaint. The Re- spondent likewise denies the commission of any unfair labor practices. On the entire record in the case, includ- ing my consideration of the briefs and observation of the witnesses, I make the following FINDINGS OF FACT I. JURISDICTION AND LABOR ORGANIZATION Based on the allegations of paragraphs 2 and 3 of the complaint, as amended, admitted in the Respondent's answer, as amended, I find, respectively, that the Re- spondent is, and has been at all times material, an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act; and that the Union, the Charging Party, is a labor organization within the mean- ing of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES The Respondent is engaged in the business of manufac- turing, retailing, and distributing cement and related products from installations in the States of Illinois, Mis- souri, Kentucky, Tennessee, and Louisiana. Only the Re- spondent's Joppa plant and the Cave-In-Rock quarry, lo- cated at Joppa, lllinois, are involved in this proceeding. A collective-bargaining relationship has existed between the Company and the Charging Party since 1963. 2 The most recent agreement was a 3-year contract that expired on 1 May 1984. Negotiations to achieve agreement on a successor contract failed, and sometime after 1 May 1984, the Company implemented its final complete con- tract offer, On 15 June the Union struck. The Company permanently replaced the strikers. Later, as various re- placements left, former strikers were recalled to work. Among these, newly elected Union President Jack Mizell returned on 29 October. Mizell was a member of the ne- gotiating, safety, and grievance committees, as were Vice President Rodger Barnhill and retiring Union President David Beck, both of whom had not been recalled to work as of the time of the hearing in this case. Article XVI of the expired 1984 contract sets forth the grievance and arbitration procedures. To summarize, a four-step procedure is specified, terminating in final and binding arbitration. Step 1 provides that if a satisfactory settlement is not reached between the aggrieved employ- ee and his supervisor, with or without the assistance of his union representative, the matter shall be reduced to writing, and the supervisor must file a prompt written answer. Failure to achieve a settlement at step 1 results in processing to step 2, at which point the grievance is considered at a meeting of' the union representatives and the plant manager. Failure to reach a satisfactory disposi- 2 It appears from a passing reference in the transcript, and fn. I of counsel for General Counsel's brief, that the continued existence of this relationship is currently the subject of consideration by the Regional Office in Case 14-RD-1058; in which the RespOndent has filed objections to the Union's victory in a decertification election. However, I find it in- appropriate to take official notice, as requested, of the hearing officer's report and recommendations issued in that proceeding; and the material contained therein has not been considered. MISSOURI PORTLAND CEMENT CO. 437 tion at this level results in the grievance being referred to a meeting among the Company's vice president of in- dustrial relations, local union officials, and a representa- tive of the International Union. Article XV, which covers conditions of employment, provides in section 3 for the establishment of a joint safety and health committee "consisting of four members, two appointed by the Company, and two appointed by the Local Union." It is also provided that [t]he Joint Committee shall meet as often as neces- sary, but not less than once each month, at a regu- larly scheduled time and place, for the purpose of jointly considering, inspecting by walk-around during a portion of the regularly monthly meeting, investigating and reviewing health and safety condi- tions and practices, and investigating accidents, and for the purpose of jointly and effectively making constructive recommendations with respect thereto Article III deals with employee representation. Section 1 of that article provides that the Joppa plant employees shall be represented by a committee composed of the local union president, vice president, and four "active employees of the Joppa plant. Cave-In-Rock employees shall be represented by a committee of the president of the Local and two active employees of the Cave-In- Rock quarry." This section also requires that on the exe- cution of the agreement, the Union will promptly notify the Company in writing of the names of the chosen rep- resentatives and, thereafter, of any changes as they OCCUIP. Section 2, article III, of the expired contract provides that "Union representatives shall be allowed reasonable time during regular working hours for the processing of grievances, but shall not leave their work for such rea- sons without prior approval of supervision, nor shall they require another employee to leave his work without approval of his supervisor." Elsewhere in the section it is stated: Off-duty representatives of the Local and represent- atives of the International Union and/or District Council shall be permitted on the Company's prem- ises to investigate grievances provided the Compa- ny is notified of their presence upon entering the plant or quarry. Section 3, article III provides for a meeting between management representatives and plant union representa- tives on the first Wednesday of each month at 2 p.m., and with quarry union representatives on the third Wednesday of each month at 1 p.m. Section 4 specifies the conditions under which union representatives shall be paid wages for time devoted to attending these meetings. The grievance and arbitration procedures in the Re- spondent's implemented contract proposal of 29 June are contained in article XV. Comparison with article XVI of the expired agreement reveals that steps 1, 2, and 3 are identical. The main difference occurs at step 4, which, in the implemented proposal, provides that on the failure of step 3 to provide a satisfactory settlement, a meeting will be held with the union president, chairman of the com- mittee, International representative, plant manager, vice president of operations, and vice president of industrial relations, at the conclusion of which the Company will grant the grievance, the Union will withdraw, or the Union will declare that the grievance will go to arbitra- tion. Conditions of employment are dealt with in article XIV of the implemented proposal, which, in the portions relating to the instant dispute, are identical with those of article XV, as quoted earlier. Article III of the proposal placed in effect by the Company on 29 June, corresponds with article III of the expired agreement, and covers the subject of representa- tion. However, the newly implemented article III con- tains significant changes which directly affect the issues to be considered. Thus, section 1 of the new article III states: In matters arising out of the application and inter- pretation of this agreement, the Joppa plant employ- ees shall be represented by a committee of five (5) active employees of the Joppa plant. Cave-In-Rock employees shall be represented by a committee of two (2) active employees of the Cave-In-Rock quarry. Upon execution of this agreement, the Union will promptly notify the Company in writing the names of the chosen representatives and of changes as they occur. Section 2 of article III was changed to read, Off-duty representatives of the Local and represent- atives of the International Union and/or District Council may, at the Company's discretion, be per- mitted on the Company's premises to investigate grievances provided the Company is contacted in advance, and further provided that there is no dis- ruption of work. As acknowledged by the Union's International repre- sentative, former employee and Local Union President Thomas Rice, following the strike the union membership returned to work under the terms of the Company's im- plemented fmal proposal. Thereafter, collective bargain- ing resumed. Rice, Rodger Barnhill, Jack Mizell, and David Beck testified concerning what transpired. They each claim that during the phase of the negotiations that took place prior to the strike, there was never any dis- cussion of the Company's proposed changes in article III, section 1, or of the term "active employee" as it was deemed to apply to that section, although that term was clearly used in the same context in several prior agree- ments.3 Also, these witnesses claimed, despite circum- stances under which the strike ended, that at no time during the course of the negotiations did the Union for- mally agree to the Company's proposed changes affect- ing the composition of either the grievance or safety $ However, Beck conceded that during negotiations the Company wanted to take the union president and vice president off the grievance committee and eliminate one committeeman. 438 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD committees. Each of these witnesses attended a negotiat- ing session held on 15 November 1984 at the Holiday Inn in Paducah, Kentucky. Also present for the Union was International Representative Tom Balanoff, who served as chief negotiator. The Company was represent- ed by Vice President J. L. McIntyre, Vice President of Industrial Relations Jack P. Hearn, Plant Manager M. G. Brekhus, and Personnel and Safety Supervisor William Sacharnoslci. Mizell testified that during the course of this meeting, International Representative Rice asked the Company if it would allow Rice, Barnhill, and Beck to conduct a safety meeting and a safety walkaround, but that McIntyre answered that they would never be al- lowed on the plant property for this purpose. Mizell's memory failed when he was asked if there was any dis- cussion concerning who would represent the Union at grievance meetings. Rice remembered McIntyre telling Beck that he would not be allowed in the plant until (under the terms of the newly implemented employer proposal) there was a third-step (grievance) meeting. Beck did not testify about this meeting. Barnhill testified that he asked Brekhus, "In other words, you're not refusing to have a safety meeting— you're just refusing to have one with me?" Brekhus re- sponded, "That's right."4 According to Rice, Mizell, Barnhill, and Beck, at an- other bargaining session on 12 December 1984, McIntyre repeated his refusal to permit Beck, Barnhill, and Rice into the plant for the purpose of conducting any meet- ings. Neither McIntyre nor Brelchus appeared to testify for the Company concerning what transpired at the meetings on 15 November and 12 December. Jack P. Hearn, Re- spondent's vice president of industrial relations, was the sole witness of Respondent to testify about these events. After professing a lack of confidence in his ability to recall what happened at any particular session, and after demonstrating this inability during questioning by the Respondent's counsel, I received into evidence, as past recollection recorded, a typewritten version of portions of the Company's bargaining notes with respect to these sessions. The Respondent quite candidly admitted that these notes represented an amalgam of notes taken at these sessions by various individuals, and did not purport to be a complete record of everything that happened at each of these meetings. Thus, Respondent's Exhibit 1, an excerpt from the Company's notes for the meeting of 15 November 1984, shows that toward the end of the ses- sion Rice raised the question of the Company's position concerning what he described as "monthly meetings" under the implemented proposal. He noted that they had asked Plant Manager Brekhus for a meeting, but stated that "we are not getting anywhere." Rice did not distin- guish between safety meetings or grievance meetings. McIntyre began his answer by reading from article III of the Company's implemented contract proposal concern- ing representation. He emphasized that the article re- 4 Barnhill testified that these remarks were made at a negotiating meet- ing on 13 November 1984. In accordance with the testimony of all other witnesses, I find that the meeting actually occurred on 15 November. quired representatives to be active employees. He said that the Company was willing to meet with a committee of five active employees, and that because the Union had 12 members who met those criteria, they could put any 5 of them they wanted on the committee. Balanoff an- swered that they wanted to have a meeting on the first Wednesday of December, and indicated that by that time they would have a committee of five active employees in the plant. After a short recess this topic came up again. McIntyre emphasized that they intended to meet with the employees in accordance with the implemented plan, and that because the agreement specified a committee composed of five active employees, the Union was ex- pected to give them their names. He noted that the Cave-In-Rock facility was to be represented by two active employees. He emphasized that the plan made no provision for other people to attend these meetings and, consequently, if Beck showed up for the meeting he would be evicted from the property and arrested if nec- essary. At this point Beck asked if McIntyre was saying that if there were grievances to be discussed, the presi- dent of the Local could not attend the meeting. McIn- tyre responded that he could do so as long as he was an active employee. He also cautioned that if Beck wished to meet with the Company to discuss other matters, or Rick or Balanoff or any others, that a different situation was presented, and the Company was willing to meet outside the plant as necessary to resolve their differences. Under similar circumstances as those described above, the Respondent introduced into evidence Respondent's Exhibit 2, an excerpt from the prepared company notes for the meeting of 12 December. The topic of grievance committee and safety and health committee meetings was raised again by Balanoff in the context of a brief discus- sion about an employee who allegedly arrived for work in a state of intoxication. When McIntyre noted that they were supposed to be having a negotiating session and that grievances should be timely filed and presented to the plant manager, Balanoff asked when they could have a grievance meeting. McIntyre answered that the Union had not yet given the Company their list of five active employees to serve on the grievance committee, as speci- fied under the terms of the implemented proposal. He stated that when they did so, they would set up a meet- ing. He remarked that instead of submitting the requested list of five active employees, the Union had submitted a list of nine, which included the name of International Representative Rice, who was not an active employee. McIntyre closed by stating, "We solicited from you a list of five (5) active employees for the grievance committee and two (2) for the safety and health committee. If, you want us to consider your grievances, we want you to file them in a timely manner and follow the steps of the im- plemented plan." In his brief counsel for the General Counsel argues that an adverse inference should be drawn against, Re- spondent's Exhibits 1 and 2, and in favor of the testimo- ny of the General 'Counsel's witnesses concerning the meetings of 15 November and 12 December. He points to the incompleteness of the notes, and the admittedly poor memory of Hearn concerning the actual events, in MISSOURI PORTLAND CEMENT CO. 439 support of this argument. I cannot accept this reasoning. The testimony by the General Counsel's witnesses con- cerning these meetings is equally brief and fragmentary, but, likewise, that does not mean that the General Coun- sel's witnesses have been untruthful. Because each of the accounts given of what transpired at these meetings is an incomplete account, it is entirely possible that each person remembered or recorded a different portion of the total discussion. Where the accounts seem to overlap, the differences can easily be explained by the natural tendency of different individuals to describe incidents that occurred sometime in the past in different terms and with different language. Consequently, I do not discredit any of the versions of what transpired at these meetings. Moreover, I do not consider any of the differences that exist in the various versions to be particularly significant. It is clear that throughout this disagreement, the Compa- ny has steadfastly maintained a position based on the lan- guage of its implemented contract proposal. According- ly, it has insisted that it will meet to consider grievances filed under the terms of the implemented proposal only after the Union has properly notified it of the selection of a committee of five active employees to serve on the Union's grievance committee. Respondent interprets the term "active employee" to mean an employee who is working on the Company's payroll. Although the term "active employee" does not appear with respect to the Union's appointment of two employees to serve on the Joint Safety and Health Committee, under the terms of article XIV of the implemented proposal, the proposal contains provisions for the employees serving on the committee to receive, under specified circumstances, compensation "at the employees' regular classified straight-time hourly wage rate." The Respondent argues that this latter language makes it clear that Joint Health and Safety Committee members must be active employ- ees as well. The various pieces of correspondence be- tween the parties in evidence as Joint Exhibits 11 through 25, covering a period from 27 November 1984 until 1 July 1985, show that the Respondent has consist- ently maintained its position to date concerning the proper interpretation of the applicable provisions of the implemented proposal. I, therefore, find that the term "active employee" was extensively addressed in the ne- gotiations, contrary to the broad assertion of the General Counsel's witnesses. The Respondent was never charged nor did the com- plaint in this action ever allege that the Respondent had violated its collective-bargaining obligations in violation of Section 8(a)(5) of the Act. Accordingly, there is no evidence that the Respondent unlawfully placed into effect its complete final offer of 29 June 1984. Indeed, not only does the Union fail to claim that this action by the Company was unlawful, but it also agrees that it re- turned to work following the strike under the terms of the implemented final offer. That implemented final offer contained the changes detailed above that give rise to this dispute. Because the implementation of the Compa- ny's complete contract proposal of 29 June 1984 was lawful, the employees' wages, hours, working conditions, and other terms and conditions of employment are now, pending appropriate further negotiations, determined by that document. Any evidence concerning events that oc- curred under the terms of previous contracts with some- what different language is immaterial, because the lan- guage of the provisions in question were different. Fur- thermore, no dispute over the term "active employee" ever arose under the terms of those previous agreements. In sum, Respondent's implemented final offer controls, and the complaint allegations must be evaluated accord- ingly. I am persuaded that the Respondent's interpretation of its lawfully implemented proposal of 29 June 1984 is cor- rect. The plain language of the provisions of the propos- al under consideration here make this conclusion, in my view, inescapable. Although the draftsmanship of the provisions in question might have been somewhat more precise, it is nonetheless clear that active employees serv- ing on the grievance committee must be employees on the Company's payroll, because they are to be compen- sated, under the terms of the implemented proposal, for certain time served on committee affairs at their regular classified hourly wage rates for scheduled time lost. Joint Safety and Health Committee members must also be active employees since they are likewise compensated under the terms of article XIV at their regular classified straight-time hourly wage rate. Finding, as I do, that the Respondent's implemented contract proposal, which has been properly interpreted by the Respondent, is the controlling factor in any con- sideration of the issues presented, I now turn to an as- sessment of the specific allegations of the complaint, as amended. Paragraphs 9A1 and 9A2 of the complaint allege, re- spectively, that on 30 November 1984, Plant Manager Brekhus refused the Union's request to meet with Union President David Beck concerning employee grievances unless or until the grievances reached the third step of the grievance procedure, and refused to permit Beck to make a safety inspection at the Joppa plant. Paragraph 9B1 concerns McIntyre's similar refusal at the 15 No- vember negotiating session, discussed earlier. The evi- dence shows that prior to the strike, Beck participated in safety inspections as a member of the Local Union's safety committee, and in discussions of grievances with the aggrieved employee's supervisor at step 1 of the grievance procedure. On 27 November 1984 James R. Fisher, recording secretary of local 438, wrote to Brek- hus that Beck would appear at the main gate of the Joppa plant at 1 p.m. on 5 December "to be admitted to the plant to discuss grievances that were presented to you this date," and also to conduct a safety walkaround at the river and mill building. A response was requested. As Respondent admits, both requests were refused in a letter from Brekhus to Fisher, dated 30 November, which states in relevant part: At the November 15, 1984 negotiating session held in Paducah, the Union was asked to appoint a grievance committee consisting of active employees as specified in the Company's implemented propos- al, so that grievances could be processed in an expe- ditious and efficient manner. Upon our receipt of the names of the active employees who will serve 440 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD on the committee, and a meeting agenda, we will contact the committee to schedule a meeting. I am unable to meet on December 5 because of prior commitments. We are certainly willing to meet with Beck and others to discuss grievances which reached the third step of the grievance procedure contained in the Company's implemented proposal. We will not, however, meet with Beck to discuss grievances which have not reached the third step since he is not an active employee and is ineligible to serve on the plant grievance committee. Concerning your request for a walk-around in- spection to be conducted by Beck, we have previ- ously stated that safety and health matters in the plant will be addressed by the Joint Safety and Health Committee in accordance with the Compa- ny's implemented proposal. As soon as the Union provides me with the names of those active employ- ees who will serve on the Safety and Health Com- mittee, and an agenda, a meeting with the commit- tee will be scheduled. Since Beck is ineligible to serve on this committee, he will not be permitted to conduct an inspection of the plant. Thus, it is documented that the Respondent's refusal to discuss grievances with Beck prior to step 3 and denial to permit Beck to conduct a safety walkaround inspec- tion of the Joppa plant are grounded not on antiunion animus or discriminatory considerations but on a correct interpretation of the plain language of the controlling ar- ticles of its implemented proposal, under which the Union returned to work following the strike. Conse- quently, I find that the Respondent did not violate Sec- tion 8(a)(1) of the Act, as alleged in paragraphs 9A1, 9A2, and 9B1 of the complaint.5 Paragraph 9B2 of the complaint alleges that at the 12 December 1984 meeting, the Respondent refused the Union's request to permit Beck to make a safety inspec- tion walkaround at the Joppa plant, "contrary to estab- lished conditions of employment." In its answer, as amended, the Respondent denied having refused any such request at this meeting. The General Counsel's wit- nesses specifically testified that the refusal occurred as al- leged. Vice President of Industrial Relations Hearn did not deny the accuracy of their testimony. I find that the refusal occurred. However, for the same reasons stated 5 At the hearing, and in his brief, counsel for the General Counsel claimed that even when the Union tested the Company's sincerity by ap- pointing a grievance committee composed of active employees, the Re- spondent still refused to meet with it He based this contention on a 3 December 1984 letter from Fisher to Brekhus, and Brekhus' response on 18 December. However, this exchange of correspondence does not sup- port the General Counsel's position, because, as the documents show, Brekhus' refusal was based on the Union's designation of Thomas W. "Ced" Rice as chairman of the grievance committee. Rice, an Interna- tional representative, has not been employed by the Company since 1981. Thus, the position taken by Brekhus in his response of 18 December is completely consistent with that taken in response to similar union re- quests seeking to place inactive employees on the union committees, con- trary to the terms of the Respondent's implemented proposal. Moreover, the complaint, as amended, does not allege this particular exchange as a violation of the Act, and at no pomt in this proceeding has an amend- ment to that effect been moved. earlier, I likewise fmd that the Respondent did not vio- late Section 8(a)(1) of the Act by its refusal, based as it was on a correct legal interpretation of the applicable terms of the implemented proposal. Paragraph 9A3 of the complaint alleges that about 9 January 1985, by letter, Brekhus refused a request by the Union to meet with David Beck and Edward Burtis, as members of the Joint Safety and Health Committee. The Respondent admitted that Brekhus refused to meet with Beck, but denied that it refused to meet with Burtis. Joint Exhibits 14 and 15, in evidence, show that on 2 January 1985, Recording Secretary Fisher wrote Brek- hus a one-paragraph letter stating: Please be advised that Local 438 has appointed the following named men to the Joint Safety and Health Committee. At the Joppa plant it will be David Beck and Rodger Barnhill. At the Cave-In- Rock quarry, it shall be David Beck and Edward Burtis. You will note in the Co.'s implemented agreement it says nothing about having to be an active employee. On 9 January, Brekhus sent Fisher the following two- paragraph answer: This is in response to your letter of January 2, 1985, in which you inform me of Local 438's Joint Safety and Health Committee appointees, of which two are ineligible; specifically, Mr. Beck and Mr. Barnhill, because of their inactive status. Please be reminded that this has been discussed and explained to the Union by Mr. McIntyre at the bargaining table on numerous occasions. Because it is readily apparent that Brekhus did not refuse to meet with Burtis, but only refused to meet with Beck and Barnhill, who remained inactive employees, I find that the Respondent's refusal was based on its lawful legal position. Therefore, the Respondent did not violate Section 8(a)(1) of the Act, as alleged in paragraph 9B3 of the complaint, as amended. Paragraphs 9B3, 4, and 5 of the complaint allege refus- als, similar to those discussed above, by McIntyre at a negotiating session at the Holiday Inn in Paducah, Ken- tucky, about 30 May 1985. In its answer, the Respondent admitted the factual portions of the allegations contained in paragraphs 9B3, 4, and 5. As noted in his brief, coun- sel for the General Counsel relied on these admissions to the extent that he felt it unnecessary to offer any evi- dence concerning the details of what transpired at the bargaining session of 30 May. Although the transcript is devoid of any evidence from any party explaining the precise circumstances under which these refusals oc- curred, it is clear from the record as a whole that all the parties view these allegations as simply an updating of the conflicting legal positions with respect to this matter, which had by this time become consistently adopted by both the Union and the Respondent. Therefore, they merit the same result for the same reasons. I find that the Respondent did not violate Section 8(a)(1) of the Act as alleged in paragraphs 9B3, 4, and 5 of the complaint, as amended. MISSOURI PORTLAND CEMENT CO. 441 There remains for consideration the allegations in paragraph 9C that on 5 June 1985, the Respondent, in order to avoid meeting with and discussing safety prob- lems with the Union's designated safety committee mem- bers, held a meeting of the Joint Safety and Health Com- mittee on that date, after receiving notice that the Union's representatives were not prepared and would be unable to attend. Despite its consistent position that it would conduct grievance and safety meetings only after the Union had properly designated its representatives in advance, in writing, on 3 June 1985 the Company suddenly decided that it would hold a grievance meeting and a safety and health committee meeting. Without giving the Union ad- vance notice of this decision, Respondent Personnel and Safety Supervisor William Sacharnoski, pursuant to in- structions from Plant Manager Brekhus, posted a letter on the bulletin board announcing a grievance meeting and a safety meeting for 2 and 3 p.m., respectively, on 5 June. The Union first learned of Respondent's intention when Sacharnoski, after discovering that David Beck's telephone number was unlisted, phoned Jack Mizell on 4 June. Beck learned of these events from Mizell, and called Sacharnoski about 4 or 4:30 p.m. that afternoon. Sacharnoski said the Company wanted to have a griev- ance meeting and safety meeting the following day. Beck replied that he did not think there was any way possible in the allotted time to contact all the Union's people and be prepared, but that he would call Sacharnoski the next day to see if they could set up a date for a meeting. Beck called Sacharnoski between 3 and 4 p.m. on 5 June, only to learn that although the grievance meeting had been canceled, the Company had proceeded to hold a safety meeting utilizing company-appointed employee repre- sentatives instead of representatives selected by the Union. Beck protested the holding of the safety meeting, but suggested 6 or 7 June for the safety meeting. Sacharnoski's testimony is somewhat different. He con- ceded that in their telephone conversation around 4 p.m. on 4 June, Beck suggested a postponement to 6 June, but that he also asked Beck to call him between 9 and 9:30 a.m. on 5 June, after he had had an opportunity to check with his supervisors. Sacharnoski said that because Beck did not call on the morning of 5 June, he assumed the grievance and safety meetings would continue. However, before the grievance meeting occurred, he learned from Mizell that the Union wanted to cancel the meetings. Nevertheless, although the grievance meeting was can- celed, the safety meeting proceeded with company ap- pointed active employee representatives serving in place of union appointees. Mizell testified that he phoned Sa- charnoski at 1:30 p.m. from the maintenance shop. Sa- charnoski said he understood the meeting was postponed pursuant to a request from Beck, but that he had not heard from Beck. According to Mizell, there was no mention by Sacharnoski of the Company's intention to hold a safety meeting that day. I find it unnecessary to resolve the minor factual dif- ferences between Beck's version and Sacharnoski's ver- sion of these events because in my view, they are incon- sequential. Even based on Sacharnoski's testimony stand- ing alone, it is plain that he knew Beck's position was that he would not have enough time to assemble a com- mittee for either the grievance or the safety meeting in order for it to proceed on 5 June, and that Beck had re- quested a postponement until 6 June. Whether Beck was supposed to call Sacharnosld between 9 and 9:30 a.m. on 5 June is immaterial, because Sacharnosld knew Beck needed a postponement, a fact reaffirmed by Mizell a half hour before the grievance meeting was scheduled to begin, and an hour and a half before the safety meeting was scheduled to start. Considering all these circum- stances, I fmd as follows: The Company's original notice to the Union of its intention to hold grievance and safety meetings on 5 June was inadequate. Indeed, it was not proper notice at all, because the union officials were no- tified of the Company's intention only after a notice an- nouncing the Company's intention to the employees had been posted on the bulletin board. Under these circum- stances, Beck's acknowledged request of a postponement until 6 June was entirely reasonable. Under all these cir- cumstances, the Respondent acted properly in canceling the grievance meeting, especially in the aftermath of Mi- zell's 1:30 p.m. telephone conversation with Sacharnoski. Why the Respondent then proceeded to hold the safety meeting at 3 p.m., in the light of these prior events, re- mains unexplained. Suffice it to say that I find that in doing so the Respondent clearly bypassed the Union. Likewise, by conducting the safety meeting utilizing em- ployer-appointed representatives in place of those desig- nated by the Union, the Company clearly interfered with the Union's right to select its own representatives under the terms of the Company's implemented proposal. Thus, I find the Respondent violated Section 8(a)(1) of the Act. CONCLUSIONS OF LAW I. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By holding a safety meeting on 6 June 1985, with- out adequate advance notice to the Union, despite a rea- sonable postponement request, utilizing company-ap- pointed employee representatives in place of an officially designated union committee, the Respondent engaged in unlawful interference with its employees' Section 7 rights, in violation of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 5. The Respondent has not violated the Act in any re- spects other than those specifically found. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I fmd it necessary to order that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the poli- cies of the Act. I shall also order the Respondent to post an appropriate notice. [Recommended Order omitted from publication.]