United Steelworkers of America, AFL-CIO, Etc.

UNITED STEELWORKERS OF AMERICA, AFL-CIO, ETC. 357 5. By entering into, maintaining, and giving effect to , an oral agreement or under- standing whereby employment at the Bestwall job was conditioned on membership in and clearance and referral by Boilermakers , Lodge 554, Respondent Central has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) and (3) of the Act, and Boilermakers, Lodge 554, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (1) (A) and (2) of the Act. 6. By discriminating against Robert Quinnelly because he filed unfair labor prac- tice charges with the Board against it, Respondent Central has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (4) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] United Steelworkers of America , AFL-CIO, and Local Union 2140, United Steelworkers of America, AFL-CIO and Inter- national Molders and Foundry Workers of North America, AFL-CIO and Local Union 256, International Molders and Foundry Workers Union of North America, AFL-CIO and United States Pipe and Foundry Company. Cases Nos. 10-CB- 1205 and 10-CB-1206. October 11, 1960 DECISION AND ORDER On May 26,1960, Trial Examiner Thomas F. Maher issued his order on motions to dismiss in the above-entitled proceedings, granting the Respondent's Motion to Dismiss on the ground that the General Coun- sel had failed to established a prima facie case, and dismissing the consolidated complaint in its entirety, as set forth in the copy of the Order attached hereto. Thereafter, the Charging Company filed ex- ceptions to the Order and a supporting brief, in effect appealing the Trial Examiner's Order and requesting that the hearing be reopened for the presentation of the Respondent's defense. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Chairman Leedom and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered and reviewed the Trial Examiner's order, considered the exceptions and the brief, and the entire record in these cases. The Board finds no merit in the exceptions and the request to reopen the hearing, and hereby denies the Charging Company's appeal of the Trial Examiner's order.' 1 The consolidated complaint alleges that the Respondent Unions violated Section 8(b) (3) of the Act by failing to bargain in good faith. The complaint's gravamen is the insistence of Respondent Unions for a common expiration date of their contracts covering the employees in two of the Charging Company's plants represented by them and in a 129 NLRB No. 42. 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER IT IS I3ERE13Y ORDERED that the Trial Examiner's order dismissing the consolidated complaint in its entirety be, and it hereby is, sus- tained on appeal. third of the Company's plants represented by another labor organization . We agree with the Trial Examiner 's conclusion , that contract duration is a bargainable issue, that the insistence of the Respondent Unions on specific expiration dates was not evidence of bad-faith bargaining, and that the General Counsel has failed to establish a prima facie case We find it, therefore , unnecessary to consider the merits of, or to adopt , the Trial Examiner's discussions concerning the impact , or the lack of impact , of the Respondent Unions' contract termination demands on the scope of the certified single plant units herein involved. ORDER ON MOTIONS TO DISMISS PRELIMINARY STATEMENT Upon charges filed by United States Pipe and Foundry Company, herein referred to as the Company , the General Counsel of the National Labor Relations Board issued a consolidated complaint against United Steelworkers of America , AFL-CIO, Local Union 2140, United Steelworkers of America , AFL-CIO , International Molders and Foundry Workers Union of North America, AFL-CIO, and Local Union 256, International Molders and Foundry Workers Union of North America, AFL-CIO, referred to hereinafter as Respondent Steelworkers and Respondent Molders, respectively, alleging violations of Section 8(b) (3) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat 519), herein referred to as the Act. In their duly filed answers both Respondents , while admitting certain alle- gations of the complaint , denied the commission of any unfair labor practice. Pursuant to notice a hearing was held before me at Birmingham , Alabama, on May 4, 1960. All parties were represented at the hearing and were offered full oppor- tunity to be heard . Counsel for the General Counsel presented his case-in -chief, with full opportunity to Respondents ' counsel to cross-examine witnesses. Upon the conclusion of General Counsel's case -in-chief counsel for Respondents moved the dismissal of the consolidated complaint herein on the ground that upon the record made the General Counsel had failed to establish a violation of the Act. Because I entertained serious doubt that the General Counsel had established a prima facie violation of the Act, and in deference to Respondents ' rights in due process not to be required to enter their defense in the absence of such a showing, I adjourned the hearing for an indefinite period and requested briefs of the parties directed to the substance of Respondents' motion. Upon consideration of the legal arguments advanced by the parties and a review of the record made by the General Counsel in support of the allegations of the complaint in which I assume, of necessity, the truth of all the evidence before me, I make the following: FINDINGS AND CONCLUSIONS 1. THE COMPANY'S OPERATIONS United States Pipe and Foundry Company is a New Jersey corporation doing business in the State of Alabama , with its principal office and place of business located at Birmingham, Alabama. It operates plants in Alabama , including one at Bessemer and another at North Birmingham (both of which are involved in the instant dispute), and in Tennessee , California, and New Jersey, including a plant at Burlington, New Jersey, which is frequently referred to herein in connection with the issues presented. At the foregoing plants the Company is engaged in the manufacture of cast iron pipe and pipefittings , and related products. Annual sales and shipments directly outside the State of Alabama exceed $ 1,000,000 in value. All parties stipulate that the Company is engaged in commerce within the meaning of the Act, and I so find. II. THE LABOR ORGANIZATIONS INVOLVED The Respondents Steelworkers and Molders are labor organizations within the meaning of Section 2(5) of the Act. Local 2140 of the Steelworkers is the representative of the production and main- tenance employees , with certain specified exclusions , at the Company's Bessemer, UNITED STEELWORKERS OF AMERICA, AFL-CIO, ETC. 359 Alabama, plant, pursuant to Board certification in Case No. R-1651. Local 256 of the Molders is the representative of the production and maintenance employees, with certain specified exclusions, at the Company's North Birmingham plant, pur- suant to Board certification in Case No. 10-RC-566. Local 2026 of the Steel- workers, another labor organization whose relations with the Company are significant to the issues raised herein, is the representative of production and maintenance employees at the Company's Burlington, New Jersey, plant, pursuant to Board certification in Case No. 4-RC-988. III. PERTINENT FACTS Negotiations for the renewal of the contract between the Company and the Steel- workers covering employees at the Bessemer plant began August 23, 1959; similar negotiations between the Company and the Molders in behalf of employees at the North Birmingham plant began November 18, 1959. During this same period separate negotiations were taking place at the Burlington , New Jersey, plant between representatives of the Company and Local 2026 of the Steelworkers. Upon failure of the parties to reach agreement by October 31, 1959, the expiration date of the contract, employees at the Bessemer plant represented by the Steel- workers went on strike and continue to strike as of the date of the hearing. The Company's agreement with the Molders for the North Birmingham employees would not have expired until July 31, 1960, but, pursuant to the terms of a reopening pro- vision, negotiations began in November, and the employees, after giving due notice under the terms of the contract and Section 8(d) of the Act, struck on January 26, 1960, upon the failure of the parties to reach an agreement. The strike con- tinued through the hearing. The character of the bargaining sessions between the Company and the Steel- workers was adequately described in the voluminous minutes taken at the time, a portion of which was incorporated in the record. Thus wage rates at the Bessemer plant and a comparison of the rates at other plants, including the Burlington and North Birmingham plants, was a matter of constant discussion and negotiation. Insurance benefits, hospitalization, pensions, cost-of-living increases, job classifi- cation, and vacations were likewise the subject of negotiation and comparisons of such benefits as were in force in the Burlington and North Birmingham plants were frequently made. Included among the items considered and listed by the parties as a critical issue was the Steelworkers' demand for a contract at Bessemer whose termination date would coincide with termination dates of contracts between the Company and the Steelworkers at Burlington, and between the Company and the Molders at the North Birmingham plant. At the hearing Ashley B. Nolan, the Company's personnel manager at Bessemer, voiced the Company's unwillingness to accept coterminous contracts and stated that he "sure won't" change from the October 31 termination date urged by the Company. Contemporaneously with the Bessemer negotiations, company and Molder repre- sentatives negotiated in behalf of employees at the North Birmingham plant. As noted above, the contract between these parties was reopened on November 2, 1959. From the beginning of negotiations until the date of the hearing some 14 or 15 meetings were held, wages were discussed, and, upon failure to reach an agreement, a strike of the North Birmingham employees was called on January 26. The strike is still in effect. In the course of negotiations on January 19, representatives of the Molders in- formed company representatives of their demand for a contract termination date coinciding with contracts at Bessemer and Burlington ; and the demand was repeated at the February 8 negotiations , after the strike had been called. Since that date the subject of common expiration dates has been a continuing demand, with repre- sentatives of the Molders urging it as late as April 18. Throughout these negotiations Personnel Manager Horn, the company representative, made it clear that the Com- pany, as at Bessemer, would not accede to such a demand. IV. THE THEORY OF THE COMPLAINT The complaint offers no clue to the nature of the violation alleged, stating only that beginning on specified dates the respective Respondents "have refused, and have continued to refuse, to bargain in good faith." In his opening statement counsel for the General Counsel elaborated thus: The theory of the General Counsel is that in the course of the negotiations the unions have refused to bargain within the meaning and intent of Section 8(d) of the Act, by insisting as a condition precedent to the signing of any agreement that there must exist a common expiration date of contracts signed at its [Bessemer, North Birmingham, and Burlington plants]. This demand 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is made, even though the employees of each of the Company's three plants are encompassed in separate certified bargaining units. V. ANALYSIS AND CONCLUSIONS No one questions the basic proposition that the duration of a contract is a bargain- able issue.' The Board has likewise included it among those mandatory subjects for bargaining designated by the Supreme Court in the Borg-Warner case 2 as those on which "neither party is 'legally obligated to yield." Thus the Board states that "the term of a contract, like its substantive terms, is a bargainable matter." 3 [Emphasis supplied.] Because it is these "substantive terms" to which the Supreme Court referred in describing "subjects of mandatory bargaining," the Board's reference can have no other meaning. The theory of the General Counsel here, however, is that such an issue must be considered in a vacuum, without relation to externals. Thus he would say that at the bargainig table for either of the contracts a termination date could be discussed ad infinitum, but the moment the discussion impinged upon the outcome of the other contract negotiation it becomes tainted. I know of no rule of law that supports this restriction upon collective bargaining. In his opening statement to me counsel suggests that while it is permissible to bar- gain on such matters within the confines of one certified bargaining unit, the forcing of a company to bargain on a subject which pertains to another unit would amount to a usurpation of the Board's authority to designate certified units. The Board, how- ever, is not as fearsome of such intrusions. Thus in General Motors Corporation, etc , 120 NLRB 1215, severance from certified bargaining units was sought by a number of unions representing the company's craft employees and the Board was called upon to review its earlier certifications and to assess what effect a history of multi- plant and industrywide bargaining would have upon previously established single plant units. The Board stated that it "has frequently held that bargaining of this type, which obliterates the previously existing units based on Board certifications is a permissible avenue for the course of labor-management relations," citing Owens- Illinois Glass Company, 108 NLRB 947. Certainly if the Board sees no evil in a form of bargaining that effectively obliterates individual bargaining units, it is diffi- cult to see how the mere relating of common problems and issues of individual bar- gaining units, as here, would be received with less favor. Nor am I impressed by General Counsel's principal argument that Respondents seek to destroy the estab- lished bargaining units and institute companywide bargaining. Followed to its logical conclusion this theory would render illegal any attempt at "pattern bargaining" whereby many industries (including the steel industry, as indicated by the wage dis- cussions in evidence here) adopt a practice of following the leader and framing their contracts accordingly? Because, therefore, General Counsel's argument proves far too much, I would conclude that the Respondents' demands for common contract termination dates would have no effect upon the certified status of the bargaining unit involved. With respect to the larger question, the alleged bad faith demonstrated by Re- spondents' demands for a common termination date, I am disturbed by the inequities which flow from the Company's complaint. In effect, if not in fact, it claims to be victimized by the Molders' and Steelworkers' intransigence-but at a time and on a subject matter that it admittedly refuses to budge an inch.5 It is difficult, therefore, to see ill in a termination demand that the complaining party rejects by insistence upon its own demand. 1The Hinde & Dauch Paper Company, 104 NLRB 847; Lloyd A. Fry Roofing Company, 123 NLRB 647 IN L R B v Wooster Div of Borg-Warner Corp , 356 U.S 342, 349. 9 Lloyd A Fry Roofing Company, supra 4In support of its position that Respondents seek to destroy the bargaining units, General Counsel cites the following cases • International Longshoremen's Association, Independent, et at (New York Shipping Association, Inc, et al ), 118 NLRB 1481, 1483; Westinghouse Electric Corporation, 122 NLRB 1466, 1467-1468: Anheuser-Busch, Inc., 102 NLRB 800, 812-813; Comfort Slipper Corporation, 111 NLRB 188, 190, footnote 8: Local 19, International Brotherhood of Longshoremen, AFL-CIO (Chicago Stevedoring Co, Inc.), 125 NLRB 61; Teslite, Inc, 119 NLRB 1792; International Typographical Union, AFL-CIO, et at. (Haverhill Gazette Company), 123 NLRB '806; Local 164, Brotherhood of Painters, etc (A. D. Cheatham Painting Company), 126 NLRB 997. A study of these cases indicates that in every one of them an enlargement or alteration of the scope and composition of a bargaining unit was involved. This has no relevance to the duplicating of contract termination dates at issue here i The testimony of Personnel Managers Nolan and Horn BROOKLYN UNION GAS COMPANY 361 Apart from the foregoing inconsistent interpretation of criteria for good- and bad-faith dealings I view the subject matter herein to be clearly controlled by the Supreme Court's caution that collective bargaining is a function of the parties to be resolved by them without outside interference .6 Bad-faith bargaining is that conduct in which a party engages when it has no real desire nor intent to reach an agreement. The facts supplied by General Counsel , however, provide ample evidence that an agreement was the objective of all parties. Under such circumstances it is not the function of the Board to dictate the manner in which, or the extent to which this objective is to be achieved? Upon consideration of the entire record herein, the briefs and arguments of the parties, and the foregoing findings and conclusions, IT IS HEREBY ORDERED , pursuant to Sections 102.25 and 102.35 (h)8 of the Board's Rules and Regulations, Series 8, that Respondents' respective motions to dismiss the complaint be granted , and that the complaint be accordingly dismissed in its entirety. 6 N L.R B v American National Insurance Co, 343 US 395, 404; NLRB v Insur- ance Agents' International Union, AFL-CIO (Prudential Ins. Co ), 361 U S 477. 7 N.L R B v. Insurance Agents' International Union , supra. 8 See Cherry Rivet Company, 97 NLRB 1303, footnote 1 Brooklyn Union Gas Company and Local 101, Utility Division, Transport Workers Union of America , AFL-CIO, Petitioner. Oases Nos. 2-RC-9689, 2-RC-9727, and 2-RC-10853. October 11, 1960 SUPPLEMENTAL DECISION, ORDER, AND AMENDMENT OF CERTIFICATION On April 24, 1959, following a Board-directed election,' the Pe- titioner was certified as the collective-bargaining representative of all employees of the Employer working in and permanently assigned to operations in the boroughs of Brooklyn and Queens, New York.2 On March 23, 1960, the Petitioner filed a motion for clarification in which it requested the Board to amend its certification to include all employees of the Employer who were formerly employed by Brooklyn Borough Gas Company (herein called Brooklyn Borough), which company was consolidated with the Employer on June 1, 1959. In its motion, the Petitioner contends that such employees constitute an accretion to the unit for which it was certified. Thereafter, Local 1869, International Brotherhood of Electrical Workers, AFL-CIO (herein called Local 1869), which is the recognized bargaining repre- sentative of the former employees of Brooklyn Borough, filed an answer requesting dismissal of the Petitioner's motion or, in the al- ternative, a self-determination election. On April 24, 1960, the Board remanded the proceeding to the Regional Director for a hearing. Hearings were held on May 26 and June 15, 1960. On June 17, 1960, Local 1869 filed a petition in Case No. 2-RC-10853 in which it 1123 NLRB 441 (Cases Nos. 2-RC-9689 and 2-RC-9727, referred to herein as the original proceeding) 2 The appropriate unit excluded executives, superintendents, heads of departments, foremen, skilled technical employees in the chemical laboratories other than those who have by mutual agreement in the past been included in the bargaining unit, confidential employees , guards, and all supervisors as defined in the Act. 129 NLRB No. 38.