American National Can Co.

AMERICAN NATIONAL CAN CO 901 American National Can Company, Foster-Forbes Glass Division and Local 193, Glass, Pottery, Plastics and Allied Workers' Union, AFL-CIO, and Glass, Molders, Pottery, Plastics & Allied Workers' International Union AFL-CIO, CLC 1 Case 11-CA-12545 April 28, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On May 20, 1988, Administrative Law Judge Hutton S Brandon issued the attached decision The General Counsel and Charging Parties Local 193 and Glass and Pottery Workers' International (the Unions) each filed exceptions and supporting briefs The Respondent filed an answering brief, cross 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 briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order The unfair labor practice issue is whether the Respondent unlawfully refused the Unions' re- quests for access to the plant to measure the heat levels there A threshold issue is whether the dis- pute between the parties over the Respondent's re- fusal to grant the Unions that access should be de- ferred to the grievance-arbitration procedures con tamed in the parties' collective-bargaining agree- ment Contrary to the judge, we conclude that the dispute is not appropriate for deferral and that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing the Unions' requests for access to the plant to measure heat levels I FACTS The Respondent manufactures glass containers The Unions represent a unit of the Respondent's production and maintenance employees at, inter alia, its Wilson, North Carolina plant The Re- spondent and the Unions (the International "on behalf of itself as the International Union as agent for and on behalf of [inter alia] Local Union No 193 covered by the Contract") have a collective- bargaining agreement covering the above unit, ef- fective for the period April 1, 1987-March 31, 1990 This contract provides, in pertinent part Article 3 Union Rights Section 3 The accredited International Rep resentative of the Union shall, after first advis- ing plant management of such visit and its pur- pose, be granted the right to visit the plants in matters pertaining to complaints and/or griev- ances arising out of questions concerning the application or interpretation of this Contract 2 The Local Union President or his designee shall be granted the right to visit the plant in which he is employed, after requesting such permission from the local plant management, to investigate matters pertaining to complaints and/or grievances arising out of questions con- cerning the application or interpretation of this Contract Article 18 Relief Section 1 All hourly employees are entitled to, and shall receive, relief time as follows (e) Additional relief shall be provided where heat or cold conditions warrant Article 29 On-Job Health Protection The Company will provide adequate heat, light, and ventilation to employees, and will continue its best effort to devise systems to control drafts noise fumes dust grease, and job hazards which employees may be subject to at their place of work The contract also contains a four-step grievance procedure followed by a procedure for final and binding arbitration The manufacture of glass containers at the in- stant plant is conducted under conditions of ex- treme heat and noise According to Phil Sternfeld, who was the Local 193 president and a 10 year employee, several employees had suffered heat ex- haustion in the plant Grievances seeking heat relief had been filed in 1979 or 1980 and in the summer of 1985 The record does not show how these grievances were resolved A labor-management ' Effective May 1 1988 the Glass Pottery Plastics & Allied Workers International Union AFL-CIO merged with the International Molders and Allied Workers Union AFL-CIO to form the Glass Molders Pot tery Plastics & Allied Workers International Union AFL-CIO CLC 2 In setting out this section of the contract the judge erroneously in serted the phrase and/or Local Union officers following the word Representative 293 NLRB No 110 902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD meeting was convened on May 20, 1987,3 to dis- cuss, inter alia, assertedly excessive heat conditions in the plant and the application of the contractual heat relief provisions On May 23 (not May 27, as set forth initially in the judge's decision), Sternfeld wrote to Plant Manager King Ghegan requesting that representa- tives of Local 193 be permitted to monitor tem peratures in the plant for the purpose of determin- ing if the Respondent was in compliance with, inter alia, the contractual provisions on heat relief and on the job health protection The letter advised that the Local intended to use a "wet bulb ther- mometer4 for this monitoring in various areas of the plant at different days and times " The letter expressed the Local's view that it was entitled to such access under the contract and under the Na- tional Labor Relations Act Finally, the letter re- quested the Respondent to advise the Local, inter alia, what method the Respondent intended to use to determine when heat-relief time was warranted, and the frequency and duration of that relief time On June 3, Sternfeld asked Director of Industrial Relations Clayton "If we could come in and mom tor temperatures That we felt that the heat stress situation was in place and that we wanted to come in and monitor temperatures " Clayton denied Sternfeld's request On June 8, Ghegan replied in writing to the Local's May 23 letter Ghegan's letter stated, in regard to the heat relief provisions of the contract It will certainly be our commitment and in tention to live up to this language recognizing that relief for heat is an individual consider- ation based upon a number of circumstances involving the person, work area, work activi- ty, time of day and the environment It is our responsibility to make the determi nation for heat and cold relief and we will be sensitive to conditions in making that decision It will not be necessary for Union representa- tives to be involved in a monitoring program and [we] believe an equitable and fair relief program will be administered On July 2, Sternfeld and International Union Representative Joseph Pitts met with Ghegan and Clayton The former two each asked if he could be allowed into the plant to monitor temperatures Ghegan denied these requests Pitts asked if either 3 All dates are 1987 unless otherwise shown 4 Not a wet bulb globe thermometer as stated by the judge in de scribing this May 23 letter However the instrument in question is subse quently referred to in the record as a wet bulb globe thermometer and is described by the judge in fns 5 and 6 and related text in his attached decision the International Union's health and safety special- ist or a mutually acceptable industrial hygienist could be allowed into the plant to monitor tem- peratures Ghegan denied these requests also 5 On September 24, Sternfeld, on behalf of Local 193 as grievant, filed a grievance alleging that the Respondent was in violation of article 18, section 1(e) of the contract (i e , heat relief), "in that [the Respondent is] not providing employees heat relief in accordance with the contract " The grievance sought to have heat relief provided "in accordance with the contract as heat conditions warrant " The grievance was denied at step 2 of the gnev ance procedure on October 8, with the Respondent stating that "the company has provided heat relief and fulfilled the requirements" of article 18, section 1(e) of the contract The grievance was carried to step 3 On November 13, it was again denied, on the asserted grounds that the Respondent was in compliance with the contract The Unions have not pursued the grievance beyond step 3 of the griev ance procedure On November 18, Local 193 filed the instant unfair labor practice charge (subsequently amended to include the International, as a Charging Party), and on January 29, 1988, the General Counsel issued the instant complaint, alleging that the Re spondent has violated Section 8(a)(5) and (1) of the Act by failing and refusing to allow the Unions reasonable access to the plant, as requested, for the purpose of gathering information, otherwise un available to the Unions, concerning health and safety conditions inside the plant At the March 15, 1988 hearing in this case, the Respondent formally offered, on the record, to go directly to arbitration (i e , without the need for further processing through the grievance proce dure) on the following questions (1) Whether the Respondent has complied with Article 18, section 1(e) of the collective bargaining agreement (i e, additional heat relief), (2) In conjunction with the Unions'conten- tions that the Respondent has not complied with Article 18, section 1(e) of the contract, whether the Respondent has complied with Article 3, section 3 (i e , Union access to the plant), 6 At the hearing Pitts was asked whether he had been denied permis sion to monitor for heat stress or whether he had been denied permission to take heat measurements with a wet bulb globe thermometer Pitts tests feed that he probably was told that the Unions would not be allowed to use the wet bulb globe thermometer but that in conversation we were using it interchangeably and that when he mentioned monitoring for heat stress in conversation with the Respondent he meant taking mess urements with a wet bulb globe thermometer and vice versa AMERICAN NATIONAL CAN CO 903 (3) If the Respondent has failed to comply with the additional heat-relief provisions and/or the Union access provisions of the con- tract (in conjunction with the Unions' conten- tions that the Respondent has not complied with the additional heat-relief provisions), then what remedies should be granted to the Unions II ANALYSIS AND CONCLUSIONS A Deferral The administrative law judge determined that the instant question of whether the Respondent un- lawfully refused the Unions' request for access to the plant to measure heat levels should be deferred to the grievance-arbitration procedures contained in the parties' collective-bargaining agreement In making this determination, the judge particularly relied on (1) the existence of provisions in the col- lective-bargaining agreement dealing with the Unions' access to the plant, coupled with (2) the willingness of the Respondent to go directly to ar- bitration over the denial-of-union-access allegation, in the context of and in conjunction with the im- mediate arbitration of the heat relief grievance Thus, he found that "[W]hile the Unions' right to access to Respondent's premises is predicated on the statutory right of employees to be represented by a labor organization of their choice, it is paral- leled in this case in the collective bargaining agree- ment itself " The judge also found that deferral of the denial-of-access allegation under the instant cir- cumstances (i e, to be arbitrated in conjunction with heat-relief grievance) would not result in a two-stage proceeding, generally disfavored by the Board, in which the Unions' claim for access to the plant would first have to be resolved separately in order to provide the Unions, if successful in their access claim, the opportunity to then actually go into the plant to obtain the heat measurement data it needs in order to go forward, in a separate subse- quent proceeding, with its heat relief grievance Contrary to the judge, we find that deferral of the instant denial-of access allegation to the griev- ance arbitration procedure is not appropriate More specifically, we disagree with his assessment that deferral under the instant circumstances will not result in a two-stage proceeding involving, in prac tical effect, two separate arbitral proceedings The Board, as the judge acknowledged, has gen- erally refused to defer issues that would result in a two-tiered system requiring a union to file a griev- ance to obtain information potentially relevant to its processing of a second, underlying grievance The rationale for this position is articulated in Gen- eral Dynamics Corp, 268 NLRB 1432 fn 2 (1984), in which the Board found that the employer had unlawfully refused to provide the union with cer- tain information (a technological study) requested by the union for the purpose of determining wheth er to proceed with possible grievances over the employer's subcontracting of certain work In re- fusing to defer the information issue, the Board found [T]he procedural issue of disclosure of the study is merely preliminary to the resolution of the parties' substantive dispute over the sub contracting In these circumstances, we find no merit in encumbering the process of resolv- ing the pending subcontracting grievances with the inevitable delays attendant to the filing, processing, and submission to arbitration of a new grievance regarding the information request Such a two-tiered arbitration process would not be consistent with our national policy favoring the voluntary and expeditious resolution of disputes through arbitration Nor would it be consistent with prior Board deci- sions in this area See, e g, Safeway Stores, 236 NLRB 1126 fn 1 (1978), St Joseph's Hospital, 233 NLRB 1116 fn 1 (1977) 6 Contrary to the judge, we find that deferral in the instant case would create a risk of the type of two-tiered dispute resolution process disfavored by the Board Notwithstanding the Respondent's ex- pressed willingness to arbitrate the denial of-access allegation "in conjunction" with the heat-relief grievance, it is quite clear that in order to proceed to arbitration on its heat-relief grievance, Local 193 will separately and preliminarily have to find out the actual heat conditions in the plant Under the circumstances, the Unions can obtain this informa- tion only through access to the plant Thus, under the Respondent's proposal, agreed to by the judge, the parties would necessarily first have to arbitrate separately the denial-of access dispute, in order to determine whether the Unions would be permitted access to the plant to take heat measurements As was the case in General Dynamics, supra, the reso- lution of this preliminary dispute over access to the plant to obtain heat data, even if resolved in favor of the Unions, does not simultaneously resolve the underlying heat-relief grievance, on which the re quest for access is predicated 7 6 Accord General Dynamics Corp 270 NLRB 829 (1984) See Stephen Odenwald Inc 284 NLRB 277 (1987) Teamsters Local 851 (Northern Air) 283 NLRB 922 (employer request for information) (1987) Clinch field Coal Co 275 NLRB 1384 1385 fn 4 (1985) United Technologies Corp 274 NLRB 504 505 (1985) See also TRW Inc 202 NLRB 729 731 (1973) ' Although it is possible that obtaining the desired heat data could lead the Unions to decide not to proceed with the underlying heat relief Continued 904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In light of the above, we find no support for the judge's determination that deferral of the denial-of- access allegation "would appear to create no risk of a two-tiered dispute resolution system " Clearly, deferral would result in just such a system, and the fact that the Respondent here is willing to partici- pate in such a two-tiered arbitration process makes it no less an unacceptable impediment to the right of the Respondent's employees to be effectively represented by their collective-bargaining repre- sentatives Nor do we find that the issue need be treated differently because it involves a request for access to obtain information rather than a simple request for information itself The judge correctly noted that in Holyoke Water Power Co, 273 NLRB 1369 (1985), enfd 778 F 2d 49 (1st Cir 1985), the Board rejected the analogy it had effectively drawn in Winona Industries, 257 NLRB 695 (1981), between (1) requests for access to an employer's premises to obtain information and (2) requests for information itself In rejecting that analogy, however, the Board in Holyoke was focusing on the nature of the substantive rights themselves, i e , distinguishing relevant information (to which a union has virtual ly automatic entitlement) from access to the em- ployer's premises to obtain relevant information (entitlement to which is less than automatic be- cause of the property interests involved) 8 The issue in the present case-whether it is appropriate to defer to arbitration a matter involving entitle ment to information when another dispute between the parties may be dependent on that information- is an ancillary procedural issue The distinctions made in Holyoke have no relevance to this issue We find that the principles applied by the Board in refusing to defer requests-for-information cases to contractual grievance-arbitration provisions are equally applicable to the question whether to defer requests-for-access-to-obtain-information grievance it is also possible that obtaining the data would lead them to further pursue the grievance which would result in the two tiered dis puce resolution system disfavored by the Board To the extent that the Respondent objected to the exclusion of evi Bence that it contended would show that the heat measurements the Unions proposed to take would not establish the existence of any con tract violation we note that the issue here is not whether the instant heat relief grievance or any other grievances the Unions may file on the basis of the results of their measurements will ultimately be found to have merit but merely whether the information sought to be obtained through such measurements is reasonably relevant to and necessary for the Unions consideration whether to file such grievance 9 As will be discussed in the following section of this decision the Board in Holyoke determined that rather than automatic access to obtain relevant information a unions right to access would be determined through a case by-case balancing of the employers property rights and the employees right to be effectively represented by its collective bar gaining representative cases Consequently, we find the instant allegation to be unsuitable for deferral 9 B Access to the Plant With respect to the merits of the complaint alle- gation, the central issues are whether the Unions are entitled to the heat information and, if so, whether they are entitled to access to the Respond- ent's plant in order to obtain the data We find that in both instances the Unions are so entitled It is well settled that an employer has a duty to supply requested information to a union that is the collective bargaining representative of the employ- er's employees if the requested information is rele vant and reasonably necessary to the union's per formance of its responsibilities NLRB v Acme In- dustrial Co, 385 US 432 (1967), NLRB v Truitt Mfg Co, 351 U S 149 (1956), see also Central Soya Co, 288 NLRB 1402 (1988) Disclosure by an em- ployer of requested information "necessary to enable [a union] to evaluate intelligently grievances filed" or contemplated, allows a union to "sift out meritorious claims" and facilitates the arbitral proc- ess NLRB v Acme Industrial Co, supra at 435, 437-438 The standard for determining the relevan- cy of requested information is a liberal one and it is necessary only to establish `the probability that the desired information is relevant, and that it would be of use to the union in carrying out its statutory duties and responsibilities " NLRB v Acme Indus- trial, supra at 437 See also Leland Stanford Junior University, 262 NLRB 136, 139 (1982), and cases cited there Applying these principles to the instant facts, we find that the Unions are entitled to the heat meas- urement data in question Excessive heat in the workplace is potentially hazardous to the health and safety of employees The health and safety of employees are terms and conditions of employ- ment, and thus mandatory subjects of bargaining about which an employer is obligated to bargain with the collective bargaining representative of its employees 10 Therefore, acquiring the heat meas- urement information in question is clearly relevant to and necessary for the Unions' proper perform ance of (1) their general collective-bargaining re 9 The judges reliance on Transport Service Co 282 NLRB 111 (1986) as support for his deferral of the instant allegation is clearly misplaced and appears to have been based on a misreading of that case Thus as the General Counsel asserts in her supporting brief contrary to the judge s analysis of Transport Service the Board did not defer the alleged denial of information in that case Indeed the Board specifically ordered the em ployer promptly to furnish the union with all relevant information the union deemed necessary to properly process grievances encompassing the unfair labor practice issues that the Board did defer Id at I l l fn 3 and 119-120 10 See e g Minnesota Mining & Mfg 261 NLRB 27 29 (1982) AMERICAN NATIONAL CAN CO 905 sponsibilities, and also (2) their particular represen tational responsibilities in question here, i e , (a) to evaluate and (if warranted) pursue intelligently the Local's grievance alleging that the Respondent has not complied with the heat-relief provisions of arti- cle 18, section 1(e) of the collective-bargaining agreement, requiring additional heat relief as "con- ditions warrant," and (b) to assess whether the Re spondent is complying with the on-the-job health protection provisions of article 29 of the collective- bargaining agreement, requiring, inter alia, ade- quate ventilation, and promising control of job haz- ards in the plant Having found that the Unions are entitled to obtain the heat-measurement data in question, we further find that the Unions are entitled to access to the Respondent's plant in order to obtain this heat measurement information under the principles set forth in Holyoke Water Power Co, supra In Holyoke, the employer denied the union's re quest that its industrial hygienist be permitted access to the employer's plant to survey for poten tial health and safety hazards associated with noise levels In finding that the employer had violated Section 8(a)(1) and (5) of the Act in denying the union access to conduct its test, the Board deter- mined that a union is not automatically entitled to access to an employer's premises to obtain informa- tion simply because the information has been shown (as in the instant case) to be relevant to the union's proper performance of its representational duties Rather, the Board noted the necessity of ac- commodating conflicting rights of the parties (i e , the right of employees to be responsibly represent- ed by a labor organization versus the right of the employer to control its property and ensure that its operations are not interfered with) In attempting to achieve accommodation of these rights, the Board announced the following test in Holyoke, id at 1370 Where it is found that responsible representa- tion of employees can be achieved only by the union's having access to the employer's prem- ises, the employer's property rights must yield to the extent necessary to achieve this end However, the access ordered must be limited to reasonable periods so that the union can ful- fill its representation duties without unwarrant- ed interruption of the employer's operations 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 em- ployer's property rights will predominate, and the union may properly be denied access Under this test, the Board in Holyoke concluded that the employees' right to responsible representa- tion entailed the union's obtaining accurate noise level readings to ascertain the extent of employee hazard and to suggest means to protect them from any such hazard The Board found that this em- ployee right outweighed the employer's property rights in that case The Board thus ordered the em- ployer to grant the union's hygienist access "for a reasonable period sufficient to allow the union by gienist to fully observe and survey noise level haz- ards " Applying the principles of Holyoke to the instant case, we find that responsible representation of the employees by the Unions in ascertaining whether the Respondent is complying with the heat-relief and on-the-job health protection provisions of the collective bargaining agreement can be achieved under the circumstances only by the Unions' having access to the Respondent's plant to measure heat levels As seen, the Unions are entitled to obtain this heat information as a relevant and nec essary aspect of their roles as the collective-bar- gaining representatives of the Respondent's em- ployees There is nothing in the record to indicate that the Unions could independently obtain this in- plant heat data without their representatives' actual entry into the plant to take heat measurements Thus, the employees' right to responsible represen- tation with regard to heat-relief and on-the-job health protection can apparently be vindicated under the circumstances only by permitting the Unions to have access to the Respondent's plant to take heat measurements On the other hand, the Respondent's rights to control its property and to ensure that its oper ations are not interfered with do not appear to be significantly threatened by a grant of access to the Unions to take heat measurements 11 First, the record does not show, and the Respondent does not contend, that granting the Unions access to the plant to take heat measurements with a wet bulb globe thermometer (or similar measuring instru- ment) would necessarily undermine the Respond ent's control of the plant or significantly interfere with the plant's operations Second, the Respond- ent has already contractually agreed to grant repre- i i Indeed the Respondent has not raised the spectre of such interfer ence in attempting to justify its refusal to grant the Unions access to the plant to take heat measurements Rather the Respondent has predicated its denials of access on its assertions that (1) it is permitted (but infer entially not required) to provide additional heat relief when conditions warrant (2) it alone has the responsibility exclusive right and ex elusive contractual authority to determine when heat relief is warranted (3) it will be sensitive to conditions in determining whether to provide heat relief and (4) the Unions participation in a program to monitor heat is unnecessary 906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sentatives of the Unions access to the plant "to in- vestigate matters pertaining to complaints and/or grievances arising out of questions concerning the application or interpretation" of the collective bar- gaining agreement-precisely the purpose for which the Unions seek access to the plant in the in stant case Thus, the Respondent has already con- tractually agreed to a limited infringement of its property rights under circumstances similar to those at hand Finally, in keeping with the princi- ples set forth in Holyoke, the access that we shall order the Respondent to provide to the Unions for the purpose of taking heat measurements shall be limited to reasonable periods sufficient to permit the taking of the measurements without any unnec essary interruption of plant operations In light of all the above considerations, we find that the Respondent's property rights, on balance, are outweighed in this case by the employees' rights to be responsibly represented by the Unions in processing the heat-relief grievance and monitor- ing the Respondent's compliance with the on-the job health protection provisions of the collective- bargaining agreement Thus, we conclude that the Respondent has unlawfully denied the Unions' re quests for access to the Respondent's plant to take heat measurements in pursuit of the above objec tives 12 CONCLUSIONS OF LAW 1 The Respondent, American National Can Company, Foster Forbes Glass Division, is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Unions, Local 193, Glass, Pottery, Plas tics and Allied Workers' Union, AFL-CIO, and Glass, Molders, Pottery, Plastics & Allied Workers' International Union, AFL-CIO, CLC, are labor or ganizations within the meaning of Section 2(5) of the Act 3 At all material times, the Unions have been the designated and recognized exclusive collective bargaining representatives of the Respondent's pro- duction and maintenance employees, as more par ticularly described in article 1, section 1, of the April 1, 1987-March 31, 1990 collective-bargaining agreement between the parties 4 By denying the Unions' requests for access to the Respondent's plant to take heat measurements, the Respondent has failed and refused to bargain with the Unions in good faith, in violation of Sec- tion 8(a)(5) and (1) of the Act, as alleged 12 See Hercules Inc 281 NLRB 961 (1986) ASARCO Inc 276 NLRB 1367 (1985) National Broadcasting Co 276 NLRB 118 (1985) 5 The above violation of the Act is an unfair labor practice affecting commerce within the mean- ing of Section 2(6) and (7) of the Act REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act We shall order the Respondent to allow the Unions, on request, access to the Respondent's Wilson, North Carolina facility for the purpose of taking heat measurements relevant to and necessary for the processing of a heat relief grievance and for monitoring the Respondent's compliance with the on the ;lob health protection provisions of the par ties' collective-bargaining agreement Any access shall be limited to a reasonable period and at rea- sonable times ORDER The National Labor Relations Board orders that the Respondent, American National Can Company, Foster-Forbes Glass Division, Wilson, North Caro- lina, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Denying the Unions' requests for reasonable access to the Respondent's plant to take heat meas- urements that are relevant and necessary for the Unions' performance of their responsibilities as the collective bargaining representatives of the Re- spondent s employees in the bargaining unit de- scribed in article 1, section 1 of the parties' April 1, 1987-March 31, 1990 collective-bargaining agree- ment (b) 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) Upon the Unions' request, grant them access to the Respondent's Wilson, North Carolina plant for reasonable periods of time at reasonable times, in order to permit the Unions to take heat measure ments relevant and necessary for the Unions' proc- essing of Local 193's heat-relief grievance and for monitoring the Respondent's compliance with the on-the-job health protection provisions of the par- ties' collective-bargaining agreement (b) Post at its Wilson, North Carolina facility copies of the attached notice marked "Appen AMERICAN NATIONAL CAN CO dix "13 Copies of the notice, on forms provided by the Regional Director for Region 11, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 13 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 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 WE WILL NOT refuse to bargain in good faith with Local 193, Glass, Pottery, Plastics and Allied Workers' Union, AFL-CIO, and Glass, Molders, Pottery, Plastics & Allied Workers' International Union, AFL-CIO, CLC, by denying their requests for access to our Wilson, North Carolina plant to take heat measurements that are relevant and nec- essary for the Unions' performance of their collec tine-bargaining and representational responsibilities WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act WE WILL, on the request of either Union, grant them access to our Wilson, North Carolina plant for reasonable periods of time at reasonable times in order to permit them to take heat measurements that are relevant and necessary for the Unions' per- formance of their collective-bargaining and repre- sentational responsibilities AMERICAN NATIONAL CAN COMPA- NY, FOSTER FORBES GLASS DIVISION Patricia Timmins Esq for the General Counsel 907 Thomas A Farr and Robert A Valois Esq (Maupin Taylor Ellis & Adams), of Raleigh North Carolina, for the Respondent Susan Pollitt Esq, of Durham, North Carolina, and Carl S Yaller Esq, Media, Pennsylvania, for the Unions DECISION STATEMENT OF THE CASE HUTTON S BRANDON, Administrative Law Judge This case was tried at Wilson, North Carolina, on 15 March 1988 The charge was filed by Local 193, Glass, Pottery, and Allied Workers Union, AFL-CIO (the Local), on 18 November 1987,1 and amended on 20 Jan uary 1988 to include as a charging party, Glass, Pottery, Plastics & Allied Workers International Union, AFL- CIO, CLC (the International and, together with the Local, the Unions) The complaint and notice of hearing based on the charge, as amended issued on 29 January 1988 alleging that American National Can Company Foster Forbes Glass Division2 (Respondent), violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act) by failing and refusing to allow the Unions requests for reasonable access to Respondent s Wilson, North Carolina facility for the purpose of gath enng information concerning health and safety condi tions inside Respondents facility Respondent filed a timely answer to the complaint denying the commission of any unfair labor practices The issues presented are (a) whether the Board should defer this matter to arbitration under the principles of Collyer Insulated Wire, 192 NLRB 837 (1971), and if the matter is not deferred, (b) whether Respondents refusal to allow the Unions requested access to its facility for the purpose of monitoring heat stress conditions using a wet bulb globe thermometer constituted a refusal to bargain in good faith within the meaning of Section 8(a)(5) of the Act On the entire record, including my observation of the demeanor of the witnesses and after consideration of the briefs filed by the General Counsel, Respondent 3 and the Unions I make the following FINDINGS OF FACT I JURISDICTION Respondent is a Delaware corporation with a facility located at Wilson, North Carolina, where it is engaged in the manufacture of glass containers During the 12 months preceding issuance of the complaint Respondent received at its Wilson, North Carolina facility goods and raw materials valued in excess of $50,000 directly from points outside the State of North Carolina During the same period, Respondent shipped from its Wilson, North Carolina facility products valued in excess of $50,000 di rectly to points outside the State of North Carolina The I All dates hereafter are in 1987 unless otherwise indicated 2 The complaint was amended at the hearing to correct the name of Respondent 3 Respondent filed a list of exceptions to certain of my rulings at the hearing Treating the exceptions as a motion for reconsideration I have reconsidered the rulings and adhere to them 908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD complaint alleges, Respondent in its answer admits and I find that Respondent is and has been at all times maten al an employer engaged in commerce within the mean Ing of Section 2(2) (6), and (7) of the Act The com plaint also alleges Respondents answer further admits, and I also find that the Unions, individually and jointly, are labor organizations within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A Background The International Union as agent for, and on behalf of, eight local unions including the Local here, executed a collective bargaining agreement with Respondent effec tive 1 April 1987 through 31 March 1990 covering em ployees in the following described unit All hourly rated production and maintenance em ployees including warehousemen, in the plants and warehouses listed at the end of this contract, except employees on jobs presently covered by the Auto matic Machine Department Contract, contracts with other unions, salaried supervisors employees excluded by law and by prior contract in effect with the Company as of March 31, 1974 Eight facility locations including the one in Wilson, North Carolina, here involved, are listed in Schedule A of the contract which provides for the wage rates of various labor grades employed in the various facilities The International and the respective locals jointly ad minister the agreement at Respondents various facilities listed in the agreement Although the International and several of its locals have represented unit employees for several years the Unions were recognized by Respond ent at the Wilson facility after Respondent purchased that facility about 1983 from the Kerr Glass Manufacur ing Company The Unions had previously represented Kerr's production and maintenance employees at Wilson since about 1978 according to the uncontradicted tests mony of Phil Sternfield, president of Local 193 The Unions also represented other employees of Re spondent at the Wilson facility in a separate unit of auto matic machine department employees This unit is re ferred to on the record as being employed in the hot end' of Respondents operation, as distinguished from the "cool end where the production and maintenance employees involved here are utilized The record is un clear whether these references indicate environment tem perature differences or whether they relate only to the temperature of the manufacturing process in each unit Although bargaining agreements covering these separate units are similar, they are not in all respects the same Provisions from the production and maintenance or `cool end bargaining agreement pertinent to this case are as follows Article 3 Union Rights Section 3 The accredited International Represent ative and/or Local Union Officers of the Union shall, after first advising plant management of such visit and its purpose, be granted the right to visit the plants in matters pertaining to complaints and/or grievances arising out of questions concern ing the application or interpretation of this Con tract The Local Union President or his designee shall be granted the right to visit the plant in which he is employed, after requesting such permission from the local plant management to investigate matters per taming to complaints and/or grievances arising out of questions concerning the application or interpre tation of this Contract Article 18 Relief Section 1 All hourly employees are entitled to and shall receive, relief time as follows (e) Additional relief shall be provided where heat or cold conditions warrant 4 Another contractual provision which is pertinent to Respondents defense in this case is found at article 26, the grievance procedure It is sufficient to note without quotation that the grievance procedure outlines a 4 step process followed by a final and binding arbitration pro cedure set out in article 27 of the contract According to the testimony of Sternfield, uncontra dicted in this regard Respondent at its Wilson facility manufactures glass containers under extreme heat and noise conditions It appears natural therefore, that the Unions and Respondent would be concerned with the health and safety of unit employees Such concerns appear to be embodied in article 28 of the agreement en titled Health and Safety which provides for an effec tive safety program and recognition of the industry standards as the minimum guidelines for first aid and medical facilities and personnel Moreover at article 29 entitled On Job Health Production the agreement states that The Company will provide adequate heat light, and ventilation to employees, and will continue its best effort to devise systems to control drafts noise, fumes dust, grease, and job hazzards which em ployees may be subject to at their place of work It is the Unions' claimed concern for unit employees health and safety which gives uses to this case * The provision on additional heat relief was contained in previous agreements covering the automatic machine department employees but appeared for the first time in the production and maintenance contract beginning with the current agreement AMERICAN NATIONAL CAN CO 909 B The Union s Request for Access Local President Sternfield testified that a labor man agement meeting occurred on 20 May 1987 attended by the Local s business committee including Sternfield the Local's officers representatives of the Local's safety committee, Tom Whitley the finished products manager for Respondent, Paul Bolin, the assistant plant manager George Clayton, director of industrial relations for Re spondent at Wilson, and King Ghegan, plant manger One topic at this meeting was the Local s concern over excessive heat in the plant Sternfield testified that the Unions position on heat relief was outlined at the meet ing and he attempted to ascertain Respondents position regarding application of the heat relief provision in arti cle 18 section 1(e) of the new bargaining agreement Ac cording to Sternfield he and the Local s safety commit tee had done some research on heat stress and the meas urement of heat stress conditions Sternfield testified that at this meeting he asked Ghegan if the Union could come in and monitor temperatures Ghegan declined saying that Respondent would determine when the con ditions warranted additional heat relief for employees Sternfield asked if the Company had any figures or took measurements on the heat and was informed that they did not Following the 20 May meeting, Sternfield wrote the Company a letter dated 27 May requesting specifically that representatives of the Local be permitted to monitor temperatures at the Wilson facility for the purpose of determining if the Company is in compliance with Arti cle 18 Section 1(e) and Article 29 of the production and maintenance contract and Article 18 Section 1 and Arti cle 29 of the automatic machine department contract Sternfield s letter went on to state that the Local intend ed to use a wet bulb globe thermometer for the monitor ing in various areas of the plant on different days and times The letter stated that it was the Local s view that article 1, section 1 and article 3, sections 1 and 2 entitled it to access as did the National Labor Relations Act Sternfield s letter added that a denial of the request would be subject to the grievance procedure and a com plaint with the National Labor Relations Board or other appropriate legal action The letter concluded with a request for a response from the Company to seven stated questions regarding Respondents position with respect to the application of article 18 section 1(e) and other matters pertaining to heat illness of employees Respondent replied to Sternfield's letter through a letter from Plant Manager Ghegan to Sternfield dated 8 June Ghegan stated in the letter that it was the Compa ny's intention to live up to the bargaining agreement with respect to extra relief recognizing that relief for heat is an individual consideration based upon a number of circumstances involving the person work area, work activity, time of day, and the environment " The letter further stated and fluid replacement, first aid training, evaluation of the work area for possible improvements and other considerations It is our responsibility to make the determination for heat and cold relief and we will be sensitive to conditions in making that decision It will not be necessary for Union representatives to be involved in a monitoring program and believe an equitable and fair relief program will be administered On 3 June prior to receipt of Ghegan s response to Sternfield's letter, Sternfield in a conversation with In dustnal Relations Manager Clayton asked again if the Unions could come in and monitor temperatures in the plant because they felt a heat stress situation existed Clayton denied the request On 2 July, Sternfield again met with Clayton and Ghegan On this occasion, Sternfield was accompanied by Joseph Pitts, a representative of the International Both Sternfield and Pitts testified that each requested permission for access to monitor temperatures in the plant Ghegan refused the requests Pitts also asked them if the Unions could bring in a mutually acceptable by gienist to monitor temperatures That request likewise was refused Pitts further asked if the International could send in a health and safety specialist for this purpose and that request was similarly refused It is clear, however, that both Pitts and Sternfield were granted access to the plant for other purposes on 2 July and Sternfield, a reg ular employee at the Wilson facility, had access on the other occasions for other purposes That Respondent was aware of its operation in a hot environment according to the General Counsel was demonstrated by Respondent's posting of a notice on its bulletin board to employees outlining its hot environ ment policy " This notice, based on Sternfield s uncon tradicted testimony in this regard, was posted in mid July It stated Recently a great deal of attention has been drawn to the fact that we in the glass container manufacturing industry work in a hot environment This is recognized in our mutually agreed labor agreement recently concluded in St Louis The Company s responsibility for the health and well being of its employees is also well documented in the labor agreement and numerous Federal and state statutes Foster Forbes has and will continue to live up to its obligations both legal and moral for the safety of those people in our employ You will shortly be advised of a schedule training session concerning heat related problems Supervi sory personnel will receive similar training These sessions will instruct you in identification, first aid, reporting procedures and methods to avoid heat re lated problems It is recognized that work related heat illness can under conditions be an occupational illness and as such the Company understands its obligation to educate all its employees on the management of this potential condition including but not limited to, salt Respondent's evidence regarding the Union s request for access was presented through Ghegan Although in dicating some uncertainty, Ghegan said that he did not recall Sternfield specifically asking for access during the meeting on 20 May, but he acknowledged that Sternfield 910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD did discuss with him the heat relief issue and asked how Respondent was going to apply the heat relief standard Ghegan also acknowledged that at the meeting on 20 May, Sternfield did discuss with Respondent the use of a device called a wibget" rather than a wet bulb globe thermometer to measure heat stress conditions Sternfield had indicated that the Union was considering obtaining a wibget with the thought of entering the plant with it Ghegan also admitted that at the 20 May meeting he was provided with a sheet of commercial literature describing the "wibget "5 It claimed that the wibget is a `proven instrument used worldwide for measuring the environ ment factors contributing to human heat stress " It fur ther claimed the capability of measuring air tempera ture, humidity, and radiant heat in one heat stress index ' 6 I find it unnecessary to resolve the apparent conflict between Sternfield and Ghegan regarding the Unions re quest for, and Respondent's denial of, access at the 20 May meeting Sternfield s request for access in the letter of 23 May was quite clear His other request for access for monitoring purposes on 3 June was also uncontra dicted as were the requests of Pitts and Sternfield made on 2 July Moreover Respondent generally admits it has denied the Union access for heat monitoring utilizing a wet bulb globe thermometer or a wibget " It was not until 24 September that Sternfield filed a grievance complaining that Respondent was not comply mg with the heat relief provision in article 18, section 1(e) The grievance was carried through step 3 of the grievance procedure where it was denied on 13 Novem ber The Union did not take the grievance further C Arguments of the Parties The General Counsel and the Unions argue, as the complaint alleges, that Respondent's denial of access to the Unions for heat monitoring purposes constituted a breach of Respondents obligation to bargain in good faith under Section 8(a)(5) of the Act under the princi ples of law recited in Holyoke Water Power Co 273 NLRB 1369 (1985), enfd 778 F 2d 49 (1st Cir 1985) Hercules Inc 281 NLRB 961 (1986), and ASARCO Inc , 276 NLRB 1367 (1985) enfd as modified 805 F 2d 194 (6th Cir 1986), are also cited as sustaining and applying the Holyoke principle and supporting the position of the General Counsel and the Unions here In Holyoke the Board noting that health and safety conditions are terms and conditions of employment about which an employer is obliged to bargain on request, held that the union in that case was entitled to requested access to the employ er s facility to measure noise levels in a fan room in which unit employees worked However, in determining the right to access, the Board in Holyoke established a balancing test under which it balanced the employer s property rights against the employees' rights to proper representation by the union and held that where it is found "that responsible representation of employees can be achieved only by the union s having access to the em ployer's premises, the employers property rights must yield to the extent necessary to achieve this end ' But the Board limited access to that which was necessary to achieve responsible representation, and went on to state that where a union could `effectively represent employ ees through some alternate means other than by entering on the employer's premises, the employers property rights will predominate, and the union may properly be denied access ' 7 The General Counsel and the Unions argue here that the Unions requests for access to measure heat stress conditions in the bargaining unit at the Employer's facili ty were obviously related to health and safety conditions and therefore were terms and conditions of employment about which Respondent was obliged to bargain They further argue that monitoring of the heat stress condi tions could only be made through access because there were no alternative means for taking such measurements without entering Respondent's premises Moreover, access without an objective environmental measuring device such as the wibget would not be as helpful in de terming the existence of conditions which would war rant relief Accordingly, they assert that Respondent has no overriding property rights warranting denial of access under the circumstances here, particularly in light of the fact that Respondent has contractually granted nonem ployee union representative access for purposes other than monitoring heat stress conditions with a wet bulb globe thermometer or wibget Respondents defense is essentially two pronged First, Respondent contends that the matter should be deferred to the dispute resolution procedures contained in the col lective bargaining agreement under the principles an nounced in Collyer Insulated Wire supra In support of this contention, Respondent points to the Unions filing the grievance on 24 September contending that Respond ent was in violation of article 18, section 1(e) of the col lective bargaining agreement in that it was not providing employees heat relief in accordance with the contract Respondent takes the position that it is willing to submit the grievance to step 4 of the grievance procedure or to arbitration It takes the further position that it is willing, in conjunction with the grievance concerning the heat relief provision of the contract to arbitrate whether Re S A copy of the literature was received in evidence and contains the following general description of the battery powered 10 1/2 ounce device The mini wibget consists of the instrument case electronic meter and sensors The electronic meter features a digital readout control switch connector jacks for the sensors and a charger jack (optional on some models) The sensors include a wet bulb and globe sensor 6 It is Respondents opposition to this heat stress index which under lines Respondents actions in this case Such opposition misses the point to the extent it perceives the Union s measurement of the factors estab lishing the index as binding Respondent to acceptance of the index in ap plying the collective bargaining agreement 7 Holyoke at 1370 In Hercules Inc supra the Board in applying Hol yoke held that the employer was required to permit union representatives to enter its facility to investigate industrial accidents to conduct health and safety inspection and to conduct tests for determining the presence of toxic or hazardous fumes Moreover the Board in Hercules clearly placed on the employer the burden of establishing those factors which would warrant a conclusion that its property rights are paramount to the union s access for relevant and necessary information In ASARCO Inc supra the Board found that it was essential for a union s industrial by gienist to have access to a mine in order to investigate a fatal accident involving a bargaining unit employee AMERICAN NATIONAL CAN CO spondent has complied with the access provision of the bargaining agreement and, if it has not, what remedies should be granted With respect to the merits of the case, Respondent contends that it had never agreed with the Unions to apply a particular standard in determining the necessity for heat relief at any of Respondent's facilities It there fore argues that the Union s attempt to gain access for monitoring purposes utilizing a wet bulb globe thermom eter or wibget' is an attempt to impose on Respondent a heat stress standard for relief which Respondent had never agreed to and which the Unions could not have obtained through collective bargaining Respondent as serts that a Board Order requiring it to grant access to the Unions to make wet globe thermometer measure ments would force Respondent's agreement to terms which is contrary to the principles of H K Porter Co v NLRB, 397 U S 99 (1970) Respondent points out in this regard that no heat stress standard has ever been estab lished by the Occupational Safety and Health Adminis tration (OSHA) essentially because heat stress is highly subjective and dependent on too many factors variable with the individual employee not subject to accurate measurement D Conclusions The issue of deferral is primary and must be addressed and decided before the merits can be considered See Collyer Insulated Wire, supra at 843, Transport Service Co, 282 NLRB 111 (1986) Respondent's contention that the case sub judice should be deferred was first raised in a preheanng motion to dismiss which was duly referred to me for ruling The motion was orally denied in a pre hearing telephonic conference with the parties inasmuch as the Local s filed grievance pertained to the heat relief complaint under article 18 section 1(e), and not the access issue Moreover, the access issue which provided the basis for the complaint here although related to the grievance, was viewed as being similar to a request for Information8 which the Board generally views as not de ferrable because it would result in a two tiered system requiring a union to file a grievance in order to obtain potentially relevant information to which it is otherwise entitled to assist it in the processing of a second underly ing grievance See e g, Stephen Oderwald Inc, 284 NLRB 277 (1987), Teamsters Local 851 (Northern Air), 283 NLRB 922 (1987), Clinchfield Coal Co, 275 NLRB 1384 (1985) United Technologies Corp 274 NLRB 504, 505 (1985), General Dynamics Corp (II), 270 NLRB 829 (1984), General Dynamics Corp (I) 268 NLRB 1432 (1984), and TRW Inc, 202 NLRB 729 (1973) 9 Howev er, the prehearing ruling regarding deferral was without prejudice to Respondent's raising the matter again at the hearing or in its brief What Respondent did not specifi cally note in its preheanng motion and what did not become apparent until the hearing, was the existence of article 3, section 3, in the bargaining agreement allowing 8 See Winona Industries 257 NLRB 695 (1981) 8 It is on the equation of requests for access to requests for information cases that the General Counsel and Unions rely in opposing deferral under Collyer here 911 the Unions access to investigate matters "pertaining to complaints and/or grievances " After reflection and con sideration of the parties briefs, I conclude the existence of this contractual provision is not only significant but controlling on the deferral issue in light of Respondent's stated willingness to arbitrate the access dispute in con junction with the heat relief grievance Thus, although the Unions' right of access to Respondent s premises is predicated on the statutory right of employees to be rep resented by a labor organization of their choice, it is par alleled in this case in the collective bargaining agreement itself 10 Further, deferral here would appear to create no risk of a two tiered dispute resolution system because Respondent is willing to arbitrate both the existing gnev ance and the access issue that preceded the grievance i i Finally, the Board in Holyoke specifically rejected the analogy drawn in Winona, supra, between requests for access cases and simple requests for information cases There appears to be no logical reason why such rejection would be inapplicable when determining whether the case should be deferred under Collyer principles Even if the denial of access is equated with refusals to provide relevant information, the Board has made excep tions in its general policy of refusing to defer such cases to arbitration In Transport Service Co, supra, the Board deferred to arbitration a refusal to provide information because the dispute before the Board turned on an in terpretation of various contract provisions, a broad ar bitration clause' existed in the bargaining agreement which encompassed the matter at issue, the respondent had "asserted its willingness to arbitrate the dispute, and the parties had a "stable collective bargaining rela tionship " The Board reached this result even though the case also involved unilateral changes in the terms of the collective bargaining agreement, refusals to furnish infor mation necessary for grievance processing direct dealing by the employer with employees bypasing the union, and a threat of retaliation against an employee if he did not withdraw a grievance The employers conduct, the Board stated, did not amount to a repudiation of the bar gaining agreement or a rejection of collective bargaining principles The interference with grievance processing was viewed as isolated and the employer's actions did not otherwise undermine the grievance arbitration proce dures The Board also noted that the parties had contin ued to file, process, and settle grievances Lastly, and almost parenthetically the Board observed that no party had even excepted to the administrative law judge s deci sion to defer in that case The instant case may be distinguished from Transport Service ultimately perhaps, on the basis of the existence of exceptions to any decision by the undersigned to defer 10 Thus it can be said here not only that there is a broad grievance and arbitration provision in the collective bargaining agreement but also that such provision by virtue of the access provision clearly encom passes the unfair labor practices alleged See Postal Service 273 NLRB 1746 (1985) United Technologies Corp 268 NLRB 557 (1984) ii Unfortunately even present access with a wibget would not be fully useful in resolving the grievance because of the improbability of the exist ence of identical environmental temperatures and conditions which gave rise to the grievance Moreover and in any event the access issue long predated the actual filing of the grievance on heat relief 912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD this matter to the parties grievance arbitration machin ery However, it is obvious that the absence of excep tions was not the linchpin of the Boards decision in Transport Service If it had been, the Board would not have taken the occasion to spell out its basis for agreeing with the administrative law judge s less detailed reason ing for deferral Respondents actions in the instant case when com pared with that of the employer in Transport Service present an infinitely smaller risk to the successful resolu tion of the basic dispute between the parties through the arbitral process And all the reasons for deferring enu ciated in Transport Service are present in the instant case Thus, the Unions right to access is specifically provided for under the collective bargaining agreement and ac cordingly is not dependent on the Act The interpreta tion and extent of application of the access provisions are matters within the province and expertise of arbitrators The grievance machinery and arbitration clause are clearly sufficiently broad to encompass the issue of access here involved, including access with a wibget, and the Respondent has stated its willingness to arbitrate the dispute on access in conjunction with the heat relief' issue and any remedy for any breach of the bar gaining agreement found 12 Lastly, it is quite clear that Respondents conduct here does not reflect a repudiation of the collective bargaining agreement or even the provi sion on access, for Respondent has continued to apply the bargaining agreement and to allow the Unions access to the plant for other purposes Nor has there been any unilateral modification of the bargaining agreement al leged 13 The grievance arbitration procedures of the bar 12 The Board has pointed out in Combustion Engineering 272 NLRB 215 217 (1984) that the flexibility of remedies is a major advantage of arbitration 13 Although an argument could be made that Respondents denial of access to the Unions under the circumstances here unilaterally imposed a condition precluding access for heat monitoring purposes with a wet bulb globe thermometer see e g Boyer Bros 217 NLRB 342 344 (1975) that gaining agreement have at all times remained intact Ac cordingly, deferral would appear to be particularly ap propnate here Considering the foregoing, I conclude that Transport Service and the fact that the parties have a specific provi sion in the collective bargaining agreement granting access, along with the other factors noted, dictate that consistent with the principles of Collyer, supra this matter be deferred to arbitration under the collective bargaining agreement between the parties In short, the issue of access in this case including access for the pur pose of measuring heat stress with a wet globe ther mometer presents issues of contract interpretation and application, the resolution of which is within the special competence of an arbitrator with experience and skill in terpretmg and deciding such issues Based on the above, I reach the following CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Unions each are labor organizations within the meaning of Section 2(5) of the Act 3 The issues raised in paragraph 12 of the complaint regarding Respondent's failure and refusal to allow the Unions requested access to Respondents plant may, and appropriately should, be deferred for resolution under the grievance arbitration provisions of the collective bar gaining agreement between the parties Accordingly, such complaint allegation is dismissed and, in the absence of other allegations of unlawful actions alleged and proved in the complaint, the complaint is dismissed sub ject to the qualifications contained in the recommended Order set forth below [Recommended Order for dismissal omitted from pub lication ] argument was neither alleged advanced or argued and need not be con sidered