Lehigh Portland Cement Co.

978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Lehigh Portland Cement Company and Cement, Lime, Gypsum and Allied Workers Division, International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers. Case 10-CA-21498 ployer's being allowed to unilaterally establish a procedure in which it deals directly with employ- ees. AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 5 January 1988 DECISION AND ORDER BY MEMBERS BABSON, STEPHENS, AND CRACRAFT On 13 May 1987 Administrative Law Judge Philip P. McLeod issued the attached decision. The Respondent filed exceptions and a supporting brief. 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 brief and has decided to affirm the judge's rulings, findings, i and conclusions and to adopt the recommended Order as modified.' The judge found that the Respondent violated Section 8(a)(5) and (1) of the Act by adhering to its unilaterally implemented contract proposal and re- fusing to meet with the union grievance committee unless that committee was composed of no more than three permanently named employee commit- tee members. The judge reasoned that because the Respondent instituted its final proposal before bar- gaining with the Union in good faith to impasse, in violation of Section 8(a)(5), the Respondent's ad- herence to the terms of this proposal violated Sec- tion 8(a)(5) and (1) of the Act. We agree. Because we affirm these findings, we find it un- necessary to pass on the judge's discussion that, even had the parties reached a valid impasse in ne- gotiations, the Respondent could not unilaterally impose on the Union the size and makeup of its grievance-handling committee. Thus, we do not ad- dress the issues of whether the Respondent's pro- posal unlawfully interferes with the Union's right to designate its own representative or whether al- lowing the Employer to unilaterally exclude the Union's International representative from the second-step grievance meetings results in the Em- ' In affirming the judge's decision we find it unnecessary to rely on his discussion in sec IV, A of his decision, concerning whether the merger of the Cement Workers with the Boilermakers resulted in changes so sub- stantial or significant as to create a different entity thereby raising a ques- tion concerning representation In a related case, Lehigh Portland Cement Co, 286 NLRB 1366 (1987), involving the same Cement Workers-Boller- makers merger and the same parties, the Board found that the Respond- ent was estopped from challenging the merger In that case the Board also adopted the judge's finding that no impasse existed at the time the Respondent unilaterally implemented its last offer and, accordingly, that such conduct violated Sec 8(a)(5) and (1) of the Act 2 The recommended Order has been modified to conform more closely to the violation found, as alleged in the complaint 4: "4. By adhering to its unlawfully implemented contract proposal and refusing to meet with the union-appointed grievance committee unless that committee is composed of no more than three per- manently named employee-members, the Respond- ent has violated Section 8(a)(5) and (1) of the Act." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Lehigh Portland Cement Company, Leeds, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(a). "(a) Refusing to meet, pursuant to its unilaterally implemented contract proposal, with the union-ap- pointed grievance committee unless that committee is composed of no more than three permanently named employee-members." 2. Substitute the attached notice for that of the administrative law judge. 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, loin, 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, pursuant to our unilaterally implemented contract proposal, with the union-grievance committee unless it is com- posed of no more than three permanently named employee members. 287 NLRB No. 96 LEHIGH PORTLAND CEMENT CO 979 WE WILL NOT in any like or related manner interfere with, restrain , or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. LEHIGH PORTLAND CEMENT COMPA- NY Virginia L. Jordan, Esq ., for the General Counsel. Larry J. Rappoport, Esq (Kleinbard, Bell & Brecker), of Philadelphia , Pennsylvania, for the Respondent Michael J. Stapp, Esq. (Blake & Uhlig, PA.), of Kansas City, Kansas, for the Charging Party DECISION STATEMENT OF THE CASE PHILIP P MCLEOD, Administrative Law Judge I heard this case on 21 January 1987 in Birmingham, Ala- bama. The charge that gave rise to this case was filed on 28 January and amended on 25 February 1986 by Cement, Lime, Gypsum and Allied Workers Division, International Brotherhood of Boilermakers , Iron Ship- builders, Blacksmiths , Forgers and Helpers (the Union), against Lehigh Portland Cement Company (Respondent). On 11 September 1986, a complaint and notice of hear- ing issued , which alleges, inter alia, that Respondent vio- lated Section 8(a)(1) and (5) of the National Labor Rela- tions Act (the Act), first by refusing to meet with the union-appointed grievance committee unless that com- mittee was composed of no more than three permanently named employee committee members, and second by unilaterally and without notice or consultation with the Union refusing to allow union representatives access to Respondent's premises in order to investigate grievances In its answer to the complaint, Respondent admitted certain allegations including the filing and serving of the charge, its status as an employer within the meaning of the Act; the status of Cement, Lime, Gypsum and Allied Workers Division , International Brotherhood of Boiler- makers, Iron Shipbuilders , Blacksmiths, Forgers and Helpers as a labor organization within the meaning of the Act, and the appropriate bargaining unit . Respondent denied having engaged in any conduct that would consti- tute an unfair labor practice within the meaning of the Act. At the trial herein, all parties were represented and af- forded full opportunity to be heard, to examine and cross-examine witnesses , and to introduce evidence. Fol- lowing the close of the trial, the General Counsel and Respondent both filed with me timely briefs that have been considered On the entire record in this case and from my observa- tion of the witnesses, I make the following FINDINGS OF FACT I JURISDICTION Lehigh Portland Cement Company is, and has been at all times material here, a Pennsylvania corporation with an office and place of business located at Leeds, Ala- bama, where it is engaged in the production and distribu- tion of cement and related products. During the past cal- endar year, which period is representative of all times material here , Respondent sold and shipped from its Leeds, Alabama facility, cement products valued in excess of $50,000 directly to customers located outside the State of Alabama. Respondent is, and has been at all times material here, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II LABOR ORGANIZATION Cement, Lime, Gypsum and Allied Workers Division, International Brotherhood of Boilermakers, Iron Ship- builders, Blacksmiths , Forgers and Helpers is, and has been at all times material herein, a labor organization within the meaning of Section 2 (5) of the Act. III THE UNFAIR LABOR PRACTICES A Background Respondent operates nine plants at various locations within the United States at which it produces cement. The plant involved in this case is located at Leeds, Ala- bama. The Leeds plant was purchased by Respondent in 1980 Respondent recognized the Union and in 1981 en- tered into a collective-bargaining agreement with the United Cement, Lime, Gypsum and Allied Workers International Union covering all nine plants , including the Leeds facility This collective-bargaining agreement was effective from I May 1981 to 30 April 1984 . There- after, it was extended by mutual agreement of the parties to 25 May 1984. On 1 April 1984, the United Cement, Lime, Gypsum and Allied Workers International Union merged with the International Brotherhood of Boilermakers, Iron Ship- builders, Blacksmiths , Forgers and Helpers The former Union then became the Cement, Lime, Gypsum and Allied Workers Division of the International Brother- hood of Boilermakers. The parties were unsuccessful at negotiating a new collective-bargaining agreement During May 1984 the Union began a strike against Respondent that lasted ap- proximately 3 weeks. The Union made an unconditional offer on behalf of the employees to return to work and terminated the strike on 7 June 1984 Respondent imme- diately implemented the terms of its last offer ' B The Unilateral Changes The expired collective -bargaining agreement between the parties provided a multistep grievance procedure ' The Union filed a charge in Case 4-CA-14604 alleging that no im- passe existed at the time Respondent implemented its last offer On 30 January 1986, Administrative Law Judge Arline Pacht issued a decision finding that no impasse existed at the time Respondent implemented its final offer and, accordingly, that Respondent violated Sec 8(a)(1) and (5) of the Act by doing so Lehigh Portland Cement Co, JD-20-86 (January 30, 1986) Respondent filed exceptions, and the case is presently pending before the Board [Issued as 286 NLRB 1366 (1987) ] This decision af- fects certain findings and conclusions in the case before me, as is more fully discussed below 980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ending in final and binding arbitration. The second step of that grievance procedure provided that grievances that could not be resolved between the employee and his/her immediate supervisor be referred to the plant manager and a union grievance committee. The expired agreement did not specifically define "grievance commit- tee" or place any explicit restriction on the number of union representatives on that, committee During the term of that agreement, however, a practice developed whereby second-step grievance meetings were held on a monthly basis between the plant manager and what was known as the union "grievance committee " During this time, the committee was made up of six employees. If resolution of a grievance was not successful at that step, the third step involved Respondent's manager of labor relations and a representative from the International Union or District Council The expired collective-bargaining agreement contained a provision that stated in part that "representatives of the International Union shall, upon notice to the company, be permitted on the company's premises to investigate grievances." The Union's business office is immediately across the street from Respondent's plant, and during the term of that agreement, International Representative Larry Myers developed a habit of entering Respondent's premises without giving notice to the Company. On only one or two occasions, however, were those visits actual- ly to investigate employee complaints prior to the Union's filing a grievance There is no evidence that Re- spondent had notice of Myers entering its premises with- out first notifying the Company. Respondent's "final offer" to the Union, which was implemented on 7 June, contained a new provision at- tempting to define and limit the term "grievance commit- tee " Article I, section 4 of the implemented proposal provides. Each plant shall be entitled to a maximum of three (3) committeemen and there shall be not more than one (1) committeeman from any classification and/or department. The implemented proposal contains the identical provi- sion from the expired agreement giving the Union the right to have access to its facility in order to investigate grievances. After employees abandoned the strike and returned to work, second-step grievance meetings resumed in August 1984. During the meetings in both August and Septem- ber 1984, Respondent was represented by its plant man- ager and the Union by three employees. In October 1984, however, the Union brought five employees to the second-step meeting Employees advised Respondent that they would not be limited to three representatives as provided for in the implemented proposal. The meeting concluded without discussion of any pending grievances. The parties did not meet again in second-step griev- ance meetings until August 1985. At that time, because of a backlog of grievances, the Union agreed to meet, under protest, with only three committeemen present. Meetings were held in this manner during September, October, and November 19S5. During the meeting in November 1985, Robert Falkner, one of the three employees on the grievance committee, asked Plant Manager Malcolm Hardin whether International Representative Myers could par- ticipate at second-step meetings. Hardin told Falkner that Myers could not participate at this step because it was reserved to Respondent's employees. Hardin pointed out that Myers became involved representing the Union at step three of the grievance procedure. Hardin also told Falkner that Respondent would be willing to meet with Myers at a special meeting On 27 November, Myers telephoned Hardin to arrange a meeting and to discuss access to Respondent's prem- ises Myers testified he had received several complaints from employees about Respondent subcontracting vari- ous work. According to Myers, he told Hardin of the employee complaints and stated he wished to see certain people about those complaints and the type of work they were complaining about Hardin responded that the Company would not allow Myers to enter the plant to speak to the employees about complaints. Hardin stated he would check further on this and let Myers know Re- spondent's position. Hardin described the conversation somewhat different- ly. According to Hardin, Myers simply asked in a gener- al sense what Respondent's position was regarding Myers having access to the plant. According to Hardin, Myers "never gave me any particular specific reason. He never really requested access at that time; he was just simply asking what our position would be regarding access " Hardin testified he told Myers that Respondent would permit him to have "reasonable access" when necessary to investigate grievances Hardin admits telling Myers that if Myers simply wanted to speak to an em- ployee, he should do that at the union hall dust across the street from Respondent's plant Hardin testified he told Myers that if Myers "needed to see a machine or observe a procedure, something which actually required his pres- ence in the plant, we would have no objection to permit- ting him access " To the extent there is a conflict in their testimony, I credit Hardin over Myers. Hardin was both straightfor- ward and consistent. Although Myers testified initially that he told Hardin specifically about the subcontracting complaints and his need therefor to observe specific pro- cedures, Myers admitted on cross-examination, "Well, the reason for calling was some subcontracting out com- plaints, and I don't know if I went into any specific sub- ject at that particular time or not." Myers' reason for calling may well have been complaints he received about subcontracting, but it is not at all clear that Myers re- vealed this to Hardin I credit Hardin that Myers did not do so Rather, I find that Myers simply asked Hardin what Respondent's position or policy was concerning his having access to the plant Hardin's response is as de- scribed above in Hardin's testimony Before ending their conversation, Myers and Hardin agreed to have a special meeting on 3 December. The meeting on 3 December was attended by Myers, the three employees who had been acting as the Union's "grievance committee," Assistant Plant Manager R. J. LEHIGH PORTLAND CEMENT CO Sagmeister, and Hardin Several topics were discussed, including subcontracting of work, the size and makeup of the Union's "grievance committee," and Myers' access to Respondent's plant As was its usual practice, Re- spondent took notes at this meeting, from which it later made minutes Respondent's minutes contained the fol- lowing statement. The discussion tended to move from one topic to another and back again For clarity, these minutes are written as if each topic was entirely discussed before moving on to the next The minutes reflect, and all witnesses agreed, that during this meeting Myers stated that Respondent was improp- erly limiting the size of the Union's committee. Myers stated he was not suggesting that no limit be set on the number of committeemen permitted to attend meetings. Myers told Respondent, however, that the Union should be left free to use its best judgment concerning the number of individuals to serve on the grievance commit- tee. Hardin responded that grievance meetings would be conducted only pursuant to the provisions of Respond- ent's implemented proposal, which limited union attend- ance to three committeemen As Respondent's own min- utes reflect, Hardin stated flatly that "any deviation from this criteria simply would not be acceptable." Myers told Hardin that he then was going to sit on the grievance committee as a member and would be attending the reg- ularly scheduled meetings between Respondent and the grievance committee Hardin questioned whether it would be appropriate for Myers to serve on the griev- ance committee because he was the Union's representa- tive at the third step of the grievance procedure Hardin stated that he did not believe it would be acceptable to Respondent for Myers to serve on that committee, but that he would "take the matter under advisement " Myers' and Hardin's testimony and Respondent's min- utes of the December meeting reflect that Myers then raised once again the subject of his having access to Re- spondent's plant to "investigate complaints and prob- lems." Hardin again stated that Myers would be permit- ted access to the plant to obtain facts that would not normally be obtainable without access, but that access would not be granted simply for the purpose of discuss- ing complaints with employees Myers does not assert, and Respondent's minutes do not reflect, that at this meeting on 3 December Myers' request for access was made with specific reference to a particular grievance or a particular topic I find that it was not On 19 December, four employees in Respondent's packing department were suspended. Myers telephoned Hardin the following day and asked if they could discuss the suspensions. Myers and Hardin met at Respondent's plant on 20 December to discuss the suspensions Fol- lowing their discussion, Myers specifically asked permis- sion to go to the packing department in order to speak with the suspended employees Hardin denied Myers' re- quest, stating that Myers would disrupt their work and pointing out that Myers could speak to the employees during nonworking hours Myers then requested to speak with Robert E Falkner, the chairman of the employee 981 grievance committee, during Falkner's break Hardin permitted Myers to go to the maintenance shop and meet with Falkner at that time In early January 1986, Falkner attempted to set up a meeting with Respondent's plant manager to discuss grievances concerning the suspensions issued on 19 De- cember. In a conversation with Hardin in early January, Hardin told Falkner that he had not yet set up the re- quested meeting because a new plant manager was due to arrive soon and Hardin believed it would be fruitless to try to meet and discuss the grievances before the new plant manager took over The new plant manager ar- rived on 6 January Falkner met Hardin in the plant that day and asked if Hardin had set up a meeting to discuss the grievances Hardin replied that he had not done so yet Falkner testified that on 7 January, Hardin came out to where Falkner was working and engaged him private- ly in a conversation. Hardin informed Falkner that the new plant manager would meet with Falkner and one employee from the packing department to discuss the suspensions issued 19 December According to Falkner, whom I credit, Hardin then stated that from that time on Falkner would have to give Hardin a list of three names and that they would be the permanent grievance com- mittee with whom the new plant manager would meet Falkner told Hardin he would have to get back in touch with him later. Apparently, Falkner did not do so as a result of the instant charge being filed. By letter dated 8 January 1986, Myers wrote to Hardin requesting to meet with Respondent concerning various outstanding grievances. The letter stated in part. I informed you on December 3, 1985 and again on December 19, 1985 that I would be part of the Union's Committee. Myers asked that the Union and Respondent meet "at your earliest convenience." By letter dated 17 January 1986, Respondent replied: In response to your letter of January 8, 1986, the company is available to meet with the local union committee regarding any grievances which are ripe for consideration at the second step of the grievance procedure. I would remind you, however, that under the terms of the implemented proposal, the meeting should include no more than three mem- bers of that committee. In addition, it is our understanding of the griev- ance procedure that an international representative does not become involved until the third step. We would expect, therefore, that the persons with whom we meet will be limited to Lehigh employees who are members of the local union committee. IV. ANALYSIS AND CONCLUSIONS A. The Merger Respondent argues that regardless of its actions in this case, it has not violated Section 8(a)(5) of the Act be- cause it has no bargaining obligation to the Union here. Respondent argues that the affiliation/merger between 982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Cement Workers and the Boilermakers was proce- durally defective that the Cement Workers was "swal- lowed whole" by the Boilermakers, and that the Cement Workers no longer maintains any truly separate exist- ence. Respondent advanced a similar argument before Judge Pacht, contending that the due-process standards re- quired by the Board in Amoco Production Co. (Amoco IV), 262 NLRB 1240 (1982), should govern every union combination, whether styled a merger or an affiliation Respondent also argued that procedural defects attended the affiliation/merger between the Cement Workers and the Boilermakers so as to relieve it of its responsibility to recognize and bargain with the Union. Judge Pacht con- cluded that "the merger procedures relied upon by the Cement Workers were appropriate, and consequently, that the Respondent's reliance upon their alleged invalid- ity offers no defense for its refusal to bargain." Judge Pacht also found that Respondent is estopped from chal- lenging the merger. For reasons expressed below, I reach the same result. During 1982, the United Cement, Lime, Gypsum and Allied Workers International Union formed an Interna- tional merger committee to seek out and find another International union with whom it might compatibly merge. The committee was entrusted with guidelines that the merger be with an industrial union ; that conditions, interests, and objectives be shared; that the Cement Workers not lose its identity, and that the merger be rati- fied by the Cement Workers' membership. During 1983, a proposed merger agreement was consummated be- tween the Cement Workers and the Boilermakers. There- after, the Cement Workers widely publicized the terms and consequences of the merger among its membership. In compliance with its International constitution, the Cement Workers planned a special merger convention. Delegates from each local union to this convention were in proportion to its membership. Delegates to represent each local were to be elected by secret ballot, but this procedure was adhered to, if at all, only in the breach. Local unions advertised meetings at which delegates were to be selected by posting written notices in the places where their other meetings were typically an- nounced. Reminders were issued largely by word of mouth. For the most part, less than a majority of the members attended these meetings . The number of nomi- nees did not exceed the number of delegates alloted to the various local unions. Because the outcome of these single slate elections was a foregone conclusion, secret balloting was viewed as unnecessary. Voting for dele- gates was done by show-of-hand. Of the 300 Cement Workers' local unions, 171 sent delegates to the merger convention. The local unions at each of Respondent's nine facilities were represented by at least two delegates Secret ballot voting took place on the second day of the merger convention, and merger was approved by more than the requisite two-thirds majority. As a consequence of the merger, the United Cement, Lime, Gypsum, and Allied Workers International Union became a major and separate division of the Boilermak- ers. Although the Boilermakers' International constitu- tion supplanted that of the Cement Workers, it guaran- teed a substantial degree of autonomy to its various divi- sions. Moreover, the merger agreement provided that "industry-wide negotiating and servicing policies of the United Cement, Lime, Gypsum and Allied Workers International Union will not be changed as a result of the merger." As a consequence of the merger, the Cement Workers' 10 districts were styled areas. The former International union's vice presidents were renamed "international representative/coordinators." Their duties remained un- changed. The merger agreement also provided that the 300 local unions of the Cement Workers would remain intact. All the local officers remained in place, as did the methods of their selection. The method of processing grievances and the degree of local responsibility for col- lective bargaining were both unaffected by the merger The amounts of initiation fees, dues, and total per capita taxes were not affected by the merger. Local meeting places and meeting dates remained the same. Judge Pacht issued her decision on 30 January 1986, prior to the Supreme Court's decision on 26 February in NLRB v. Financial Institution Employees, 475 U.S 192 (1986). Judge Pacht provided a thorough and scholarly discussion of the case law as it then existed, including the Board's "due process" requirement of Amoco IV, supra, and the more recent decision of Texas Plastics, 263 NLRB 394 (1982). Judge Pacht concluded that where, as here, International unions enter into a relationship with one another that does not significantly change the way employees in the affected bargaining unit are represent- ed, the Board would not demand adherence to its Amoco IV rule. Judge Pacht's analytical approach was effectively su- perseded by the Supreme Court's decision in Financial Institution Employees, supra, which rejected the Board's Amoco IV requirement that all employees in the bargain- ing unit-not merely union members-have the opportu- nity to participate in an affiliation decision The Supreme Court, however, left undisturbed the principle estab- lished in earlier Board decisions that if the organizational changes accompanying affiliation were substantial enough to create a different entity, then the affiliation raised a question concerning representation that could only be resolved through the Board's election proce- dures. In the case before me, Respondent argues that the Cement Workers' merger with Boilermakers does not provide the requisite continuity to require it to recognize and bargain with the merged union I find, however, that few organizational changes accompanied the merger of the Cement Workers with the Boilermakers, and certain- ly whatever changes there were were not so substantial as to effectively create a different entity. The Boilermak- ers' International constitution expressly guarantees a sig- nificant degree of autonomy to its various divisions. The Cement Workers' division continues to negotiate and ratify its own collective-bargaining agreements. The same Cement Workers officials who were responsible for negotiating and administering collective-bargaining agreements continued in their same roles after the merger, with only their titles changed. The continuation LEHIGH PORTLAND CEMENT CO 983 of industrywide bargaining is guaranteed by the merger agreement itself Accordingly , I find that the merger of the Cement Workers with the Boilermakers did not result in changes so substantial or so significant as to create a different entity, and I find that Respondent is re- quired to recognize and bargain with the Cement, Lime, Gypsum and Allied Workers Division , International Brotherhood of Boilermakers , Iron Shipbuilders , Black- smiths, Forgers and Helpers as the collective -bargaining agent of its employees in the same bargaining unit that existed prior to the merger of Cement Workers with Boilermakers. B. The Grievance Committee The uncontested facts in this case show that before Respondent would meet with the Union to process grievances , Respondent insisted , pursuant to its unilater- ally implemented proposal, that the Union establish a grievance committee with no more than three members, that the three members be employees and could not in- clude the Union's International representative , and, even- tually, that the three members be permanently named to the committee Judge Pacht found that Respondent instituted its final proposal without having bargained in good faith. Ac- cordingly , she found that by instituting its proposal, Re- spondent violated Section 8(a)(5) of the Act. It necessari- ly follows that by insisting on adherence to the terms of this proposal , and thereby interfering with the Union's right to appoint its own representatives for grievance processing, Respondent violated Section 8(a)(1) and (5) of the Act. Even if Judge Pacht's decision is overturned by the Board, and the Board should find that Respondent bar- gained with the Union in good faith to impasse , I would nevertheless find for reasons expressed more fully below that Respondent violated Section 8(a)(5) of the Act by interfering with the Union's right to designate its own representatives for grievance processing. Respondent argues Board law is clear that the terms of a collective-bargaining agreement concerning grievance procedures survive expiration of the agreement Re- spondent argues that, therefore, a portion of the griev- ance procedure limiting a union 's International represent- ative to participation at the third step also survives expi- ration of the agreement Next , Respondent argues that in limiting the union committee to three members, Re- spondent "acted entirely consistent with its pre-impasse bargaining proposal "2 Finally, Respondent argues that "given the status of grievance provisions generally as mandatory subjects of bargaining , Lehigh was free to im- plement its proposed changes thereto which were rea- sonably comprehended by its last offer to the Union, in- cluding the limitation on the size of the grievance com- mittee upon reaching impasse in the negotiations." Re- 2 Judge Yacht , in her decision referred to above, stated however that "a summary of major provisions in Respondent 's implemented contract which were not previously proposed to nor discussed with the Union during the 1984 collective-bargaining negotiations " included as item No 17 "the proposal (which) limited the number of grievance committeemen and terminated Lehigh 's duty to compensate them for non -scheduled time when they were not on duty " (Emphasis added ) spondent argues that I should follow a decision by Ad- ministrative Law Judge Mary Ellen R . Benard to Dundee Cement Co., JD-224-85, 7 August 1985, which involved a similar issue In that decision , Judge Benard stated: Neither the parties ' briefs nor my own research has disclosed any cases precisely on point on the question of whether an employer may implement, after impasse, a final proposal which limits the number of members on the union 's grievance com- mittee. . . I conclude that Times Herald [Printing Co., 223 NLRB 505 (1976)] indicates that grievance procedures are not an exception to the general rule, and I therefore conclude that following impasse the Respondent was entitled to implement its proposal limiting the number of union grievance committee- men entitled to participate in third- and fourth-step grievance meetings. [Slip op. at 21-22.] For the following reasons , I disagree with the conclu- sion reached by Judge Benard , and I decline to follow her decision While it has long been recognized that an employer who bargains in good faith about mandatory subjects of bargaining and reaches impasse in negotia- tions with the union representing its employees may im- plement its final proposal without violating the Act, this principle has never been applied to allow an employer to unilaterally wrest from a union statutory rights granted by the Act. In Times Herald supra, the Board found that an employer violated Section 8(a)(5) of the Act by refus- ing to participate in a long-established local joint stand- ing grievance committee during a contract hiatus because "no impasse existed with regard to the joint committee " .From this, Respondent argues, and I agree, that one can presume the Board would have allowed the employer to discontinue its participation in the joint committee if such a change had been proposed by the employer and impasse had been reached following good-faith bargain- ing. This decision, however, very clearly deals with one party's own obligation in grievance processing It in no way deals with one party's right to unilaterally impose a particular manner of grievance processing on another party to the collective-bargaining relationship. I there- fore find the Board's decision in Times-Herald not only to be inapplicable but to be wholly dissimilar The Board held long ago in Shell Oil Co, 93 NLRB 161, 163-165 (1951)• Under the Act, a union , as the duly designated representative of the employees, has a right to select the class of persons, whether they be employ- ees or nonemployees, to negotiate with the employ- er as to grievances . An employer may not, without violating the Act, insist, as a condition of signing a collective bargaining agreement , that the union sur- render its right to be represented by a particular class in bargaining as to grievances. For, in the first instance, the union is not required to bargain at all with respect to waiving or restrict- ing its right to be represented by any specific class, regardless of an employer's insistence. 984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The right of a union to select its own representatives for grievance processing is a statutory right which may be voluntarily discussed at negotiations and can be limited only by agreement of the Union An employer is not free to bargain to impasse and unilaterally implement a pro- posal regarding the union's selection of its grievance pro- cedure. In Arizona Portland Cement Co, 281 NLRB 304 (1986), the Board affirmed the decision of Administrative Law Judge David G. Heilbrun finding that the company could not refuse to allow the union's International repre- sentative to serve at the second step of a grievance pro- cedure. As Judge Heilbrun stated (281 NLRB 307) [A] fundamental entitlement of the collective-bar- gaining process must be recognized This is the right of either labor or management to select repre- sentatives of its choosing for participation in the various phases of a complex collective-bargaining relationship and, absent extreme reason to the con- trary, to be free of interference in the process from the opposite party. In the final analysis, resolution of this issue requires a balancing test between an employer's right to institute its final offer concerning mandatory subjects following good-faith bargaining and a union's right to designate its own representatives for purposes of grievance process- ing. To the extent this is so, I would find that the rights of the Union in this case outweigh the rights of Re- spondent for I find it of critical importance to a success- ful collective-bargaining relationship that either party be able to designate its own representatives for purposes of collective bargaining, including grievance processing In the absence of a collective-bargaining agreement mutual- ly agreed to by both parties, an employer's obligation to bargain over individual grievances concerning terms and conditions of employment is no different than the obliga- tion to bargain over the terms and conditions themselves. It must be concluded that a union is equally free to select representatives to negotiate over those grievances as it is to select its own representatives for purposes of collec- tive bargaining. To allow an employer to unilaterally impose on a union the size and makeup of its grievance handling committee undermines the status of the union as bargaining representative of the employees Moreover, it allows the employer to unilaterally exclude particular persons from the grievance procedure. Further, to allow the employer to unilaterally exclude the union's Interna- tional representative from second-step grievance meet- ings results, either intentionally or unintentionally, in the employer's being allowed to unilaterally establish a pro- cedure in which it deals directly with employees A union may allow an all-employee committee to resolve grievances informally if it chooses to do so, but there is simply no precedent for allowing an employer to unilat- erally establish such a procedure without the express agreement of the union representing its employees Ac- cordingly, I find that by implementing and adhering to its proposal that the Union's grievance committee be lim- ited to no more than three individuals all of whom had to be employees, Respondent violated Section 8(a)(1) and (5) of the Act. C. Access Counsel for the General Counsel argues that Respond- ent unilaterally changed its interpretation of the provi- sion giving the Union access to Respondent's facility to investigate grievances and refused the Union's request for access to investigate specific complaints. The Union argues that access to Respondent's plant was necessary in order to properly investigate complaints about subcontracting of bargaining unit work. The Union argues that it is possible for Myers to speak to employees while they are performing their work without disrupting the production process The record reveals that Myers twice questioned Hardin concerning Respondent's position about allowing the Union access to its facility. On neither occasion, however, did Myers state that he needed access to inves- tigate any pending or specific grievance or complaint. Both times Myers' questioning of Hardin was nonspeci- fic, as if to ask Hardin about Respondent's interpretation of the instituted proposal Myers asserts that he wanted access in order to observe whether and what bargaining unit work was being subcontracted In view of Respond- ent's position that it would allow Myers access to ob- serve a particular machine or operation, it would have been easy for Myers to tell Hardin that he wanted access to observe work being subcontracted, but he did not do so. Having heard the evidence in this case, I am con- vinced that the reason Myers did not make such a specif- ic request was twofold First, the real dispute between Respondent and the Union during the months of Novem- ber and December 1985 and January 1986 was the dis- pute concerning the makeup of the grievance committee, discussed in detail above. Myers' conversations with Hardin about access were nonspecific because Myers simply wanted to find out Hardin's interpretation of the provision in Respondent's implemented proposal. Second, Myers did not make a specific request to ob- serve work being subcontracted because his real desire was to interview complaining employees while they were working. Having been told that Respondent would not permit this, Myers did not bother to make a specific request. I believe that once the Union decided to pursue its rights under the Act by filing a charge, the issue about access was added as somewhat of an afterthought. While Myers testified that his access to the plant had been previously unlimited and that he entered the plant whenever necessary, Myers acknowledged that manage- ment had not been made aware of his visits on many of these occasions. The expired collective-bargaining agree- ment had not contemplated unrestricted access by union representatives, as is obvious from the fact that it provid- ed access only "upon notice to the company." Respond- ent's implemented proposal included the same restriction without modification. Of the few specific instances Myers could recall in which he had visited Respondent's plant for purposes of talking to an employee, one occurred before Respondent even purchased the Leeds' facility. Another involved a disciplinary incident in 1982. These isolated instances simply do not support a conclusion that long-standing practice resulted in the Union's being granted unlimited LEHIGH PORTLAND CEMENT CO 985 access to Respondent's facility without notice. Indeed, the record reflects that in November 1985, after the im- plemented proposal was in effect, Myers wanted access to the plant to investigate a problem with a water blast- er Myers not only requested access, but was granted it Having considered all the evidence, I find the record does not support a conclusion that Respondent unilater- ally abrogated or altered the Union's right of access to Respondent's facility Nor did Respondent violate the Union's statutory right to access that the Act requires in certain circumstances. In Holyoke Water Power Co., 273 NLRB 1369, 1370 (1985), enfd. 778 F 2d 49 (1st Cir. 1985), the Board recently stated Where it is found that responsible representation of employees can be achieved only by the union's having access to the employer's premises, the em- ployer's property rights must yield to the extent necessary to achieve this end. . . On the other hand, where it is found that a union can effectively represent employees through some alternate means other than by entering on the employer's premises, the employer's property rights will predominate, and the union may properly be denied access. There is simply no evidence in the instant case that the Union's responsible representation of employees could be achieved only by the Union's having access to Respond- ent's facility The Union's office is directly across the street from Respondent's plant There is simply no indi- cation that the Union could not interview employees before or after work at the Union's office Accordingly, I find that in this case Respondent did not violate any statutory right the Union might have of access to Re- spondent's facility. I shall therefore dismiss that allega- tion in the complaint. CONCLUSIONS OF LAW 1 Respondent, Lehigh Portland Cement Company, is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Cement, Lime, Gypsum and Allied Workers Divi- sion, International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act 3. At all times material herein, the Union has been, and is now, the exclusive representative for purposes of col- lective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment of Respondent's employees in the appropri- ate collective-bargaining unit(s) defined in the most re- cently expired collective-bargaining agreement between the parties. 4 By insisting, pursuant to its unilaterally implemented contract proposal, that the Union establish a grievance committee with no more than three members, that the three members be employees and could not include the Union's International representative, and that the three members be permanently named to the committee, Re- spondent has interfered with the Union's right to desig- nate its own representatives for purposes of collective bargaining and grievance processing, and Respondent has thereby violated Section 8(a)(1) and (5) of the Act. 5 Respondent has not unilaterally abrogated or altered the Union's right of access to Respondent's facility as al- leged in the complaint Nor has the Respondent violated any statutory right the Union may have of access to Re- spondent's facility Accordingly, that allegation of the complaint is dismissed. 6 The unfair labor practice that Respondent has been found to have engaged in, as described above, has a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce within the mean- ing of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Incorporated in the General Counsel's brief was a re- production of what has become a form brief filed by the General Counsel in every case asking that as a part of the remedy a visitatorial clause be included, giving the General Counsel certain specific discovery powers during the compliance stage of this proceeding In recent cases, the Board has granted such a request only on a case-by-case basis where it has felt such a clause is war- ranted. In this case, the General Counsel points to no specific facts and no special circumstances that would warrant such a clause This case does not involve a com- putation of backpay, the location of unknown discrimina- tees, or other special circumstances that in my view, might warrant such a clause. The General Counsel's re- quest is therefore denied. Accordingly, on the foregoing findings of fact and conclusions of law, I issue the following recommended3 ORDER The Respondent, Lehigh Portland Cement Company, Leeds, Alabama, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Insisting, pursuant to its unilaterally implemented contract proposal, or otherwise, that the Union establish a grievance committee consisting of three permanently named employee members who cannot include the Union's International representative. (b) 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 9 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 l02 48 of the Rules, be adopted by the Board and all objections to them shall be waived for all purposes 986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (a) Post at its Leeds, Alabama facility copies of the at- tached notice marked "Appendix."4 Copies of the notice, on forms provided by the Regional Director for Region 10, after being signed by the Respondent's authorized " 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 Enforcing an Order of the National Labor Relations Board " representative, shall be posted by the Respondent imme- diately on 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 Respondent to ensure that the notices are not altered , defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply.