Mechanical Contractors Association of Newburgh

MECHANICAL CONTRACTORS ASSN. OF NEWBURGH 1 Mechanical Contractors Association of Newburgh and Local Union No. 269, United Association of Jour- neymen and Apprentices of the Plumbing and Pipe- fitting Industry of Newburgh, New York. Case 2-CA-12413 March 1, 1973 DECISION AND ORDER On June 20, 1972, Administrative Law Judge' William ' Feldesman issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. The General Counsel and Charging Party filed briefs in support of the Administrative Law Judge's Decision. Briefs were submitted in opposition to the Administrative Law Judge's Decision by the Mechanical Contractors Association of America, Inc., and the National Electrical Contractors Association as amici curiae. Oral argument was heard on September 11, 1972. The National Labor Relations Board has consid- ered the record and the attached Decision in light of the exceptions, briefs, and oral argument and finds in accord with the Respondent's exceptions that Re - spondent did not violate Section 8(a)(5) and (1) of the Act as alleged and that the complaint should therefore be dismissed. The Board has accordingly decided to affirm only those rulings, findings, and conclusions of the Administrative Law Judge as are consistent herewith. The basic facts are not in dispute. They are as follows: As evidenced by a series of collective-bargaining agreements covering more-than-10-year period, Re- spondent has recognized the Union as the exclusive representative of the journeymen and apprentice plumbers and pipefitters employed by Respondent's members. Since 1962 the Union and Respondent have included the following provision2 in their contracts: On or before the expiration date of this agreement should the parties be unable to settle through collective, bargaining, any issue over wages or hours or working conditions shall be referred to the Industrial Relations Council. Pending deci- sion by the Council, workmen shall continue to work under terms and conditions of this agree- ment which shall remain in full force and effect. Any decision rendered by the Council shall be retroactive from July 15, on. In the most recent agreement between the parties, executed in 1968, the IRC clause appeared as paragraph 7 of article I. That contract bore an expiration date of June 30, 1971, and negotiations for a contract to replace it commenced on February 16, 1971.3 The complaint's allegation of a refusal to bargain relates to the dispute over the inclusion or exclusion of the IRC clause in the new contract. During the early stages of bargaining, the Union proposed as one modification the elimination of clauses 4 through 9 of article I. Respondent count- ered with a proposal that article I be retained without change. Preliminarily, the parties agreed to focus their attention on cost items. They, therefore, gave little, if any, of their time to the proposal dealing with article I until a very late stage in the negotiations. On June 23, Respondent's representatives stated their intention to place the then unresolved differ- ences about new contract terms before the Industrial Relations Council. On June 25, all the bargaining unit employees went on strike. On June 28, Respondent's representatives notified the Industrial Relations Council that the employers were bringing the unresolved bargaining disputes to it under the IRC clause in the contract. On July 14, Respondent's members initiated litigation to enjoin the strike and compel arbitration. On August 3, 1971, the United States District Court for the Southern District of New York issued an injunction against the strike and ordered arbitration. On July 20, the Union filed the instant charge alleging that Respondent violated Section 8(a)(5) of the Act. Pursuant to the Union's request of July 29, the parties met to discuss article I on July 30. For the first time, the Union narrowed the scope of its original proposal on article I, and confined its demand to the deletion of the IRC clause. Respon- dent refused to accede to this demand. On August 18, the Industrial Relations Council held a hearing with respect to the outstanding bargaining disputes. The Union and Respondent participated and filed briefs. The Union there argued, inter alia, that the Industrial Relations Council had no authority to compel the inclusion of the IRC clause against the Union's will. The Union did state, however, that it would accept and abide by the Industrial Relations Council's determination of the also outstanding bargaining dispute over the wage issue. On August 19, the Industrial Relations Council issued a decision without accompanying opinion which established the wages to be paid under the new contract and directed the inclusion of the IRC clause without change. The Administrative Law Judge found upon the I The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 2 This clause shall be referred to herein as the IRC clause. 3 All dates herein are for the year 1971 unless otherwise stated. 202 NLRB No. I 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD above facts that Respondent engaged in an unlawful refusal to bargain within the meaning of Section 8(a)(5) of the Act by conditioning its agreement to any new contract on the inclusion of the IRC clause. His decision is grounded on the theory that: (a) The inclusion of the IRC clause in a new contract would establish the Industrial Relations Council as the arbiter of disputes over the terms of future contracts; and (b) the proposal for the arbitration of such bargaining disputes is not a mandatory subject of bargaining. Our disagreement with the Administrative Law Judge goes primarily to his conclusion that the IRC clause endows the Industrial Relations Council with the kind of decisional authority traditionally associ- ated with the arbitration process. It is true that read literally, the IRC clause appears to endow the Industrial Relations Council with the characteristics of a classic arbitration panel. On analysis, however, we find that its composition and its function in this dispute are quite unlike that of arbitration. Thus, while the procedures for presenting a dispute are similar to those used in arbitration, the decision making process is not. There is no neutral or impartial umpire, but rather a panel composed solely of interested parties in equal number.4 Panel mem- bers representing the union are selected by the International, and panel members representing the employer are selected by the employer's parent organization. Any decision of the panel must be unanimous. As noted above, the decisions of the panel are made after the parties to the bargaining relationship have presented their positions on the issues blocking the consummation of a final contract. In these circumstances, we cannot but infer that a unanimous decision defining mutually acceptable terms for agreement can only be reached by a process much more closely paralleling collective bargaining, rather than by a process of judicial or arbitral decisionmaking. As a practical matter, it seems apparent that representatives of the union and representatives of the employers would reach a unanimous result only through a process of negotia- tion and compromise, particularly since the econom- 4 Cf. Local Union No. 103, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Associated General Contractors of America, Evansville Chapter, Inc.), 190 NLRB No. 145, enfd. as modified 465 F.2d 327 (C.A. 7, 1972), on remand 200 NLRB No. 120. 5 Constitution of the United Association of Journeymen and Appren- tices the Plumbing and Pipefitting Industry of the United States and Canada. Revised and amended, August 8-12, 1966. At oral argument, General Counsel and Respondent stipulated that the union constitution be made part of the record in this case . In any event, we note that this constitution is a matter of public record , of which we may take administrative notice. 6 Id, sec. 65, which reads: In localities where a lockout or strike is threatened by a combination of employers , the General Executive Board shall is interests of the parties they represent are clearly involved and would be expected to be disparate. Realistically, therefore, the presence of the IRC clause in a contract authorizes, as we view it, an extension of the collective-bargaining process by a different set of negotiators, once the individuals who have begun the negotiations are unable to compro- mise their differences. If the panel is unable to reach a unanimous decision, then, as we understand the arrangement, the use of the usual economic weapons is not restricted. The presence of the Industrial Relations Council in this bargaining relationship is, in effect, an extension of the bargaining rights of the Union. This Union is affiliated with the International represented on the Council. The constitutions in effect at all times here material bestows upon the general executive board of the International like extensions of local bargaining in other respects, such as its conferral of authority upon the International to deal with employers for the settlement of disputes which threaten to give rise to a strike or lockouts In addition, it grants the Interna- tional the authority to approve or disapprove strikes,7 to revoke local charters,8 to suspend locals,9 and to place locals in trusteeship.10 It is therefore apparent that the International's presence in this bargaining relationship is wholly consistent with the normal and constitutional interrelationships of the local and International bodies, and no element of coercion is involved.I" We find nothing offensive to national labor policies in the fact that, under the affiliation contract between the Union and its International, and the terms of the bargaining contract between Respon- dent and the Union, the International is vested with some authority to affect, through its participation at this level of the bargaining, the ultimate terms of contract accord. Nor is it offensive to any national labor policy that the International has authority tQ limit the local union's right to strike pending conclusion of the extended bargaining at the council level. In John E. Parks, Jr. v. International Brother- hood of Electrical Workers, a case involving some- what similar International involvement and tempo- be empowered to investigate and arbitrate with the employers for the removal of the cause that prevents an amicable adjustment. We note that in the succeeding constitution this authority was transferred from the general executive board to the general president. Section 46. (i), Constitution of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada . Revised and amended, August 2-5, 1971. r Id., sec. 202. 8 Id., sec. 99. 9 Id., sec. 96. 10 Id., sec. 98. 11 Cf. N. L. R. B. v. Wooster Division of Borg- Warner Corporation, 356 U.S. 342 (1958). MECHANICAL CONTRACTORS ASSN. OF NEWBURGH rary limitations on the use of economic force, the court came to a like conclusion, stating: Even if a union cannot be compelled to relinquish economic weapons perpetually, there is nothing in the law to suggest that it may not voluntarily forebear from the use of force as long as it chooses to do so. At most, the International can be said to have attempted to compel one,of its component bodies to do this. It is not for the courts to say that a superior union body cannot require its subordinate to look to high level bargaining rather than to use economic force. Actually, adoption of the more stringent Council clause would not surrender the strike weapon irretrievably; it would merely fortify the provision in the Constitution vesting control over this weapon in the International. It would remain within the power of the International to restore the strike weapon to a local.12 Viewed in the light of the foregoing findings, no liability under Section 8(a)(5) of the Act can be imputed to Respondent because, over the Union's objections, it referred the differences between it and the Union to the Industrial Relations Council for resolution in accord with the contractually estab- lished procedures. We also note that there is no evidence to suggest that Respondent would not have executed a contract which did not include the IRC clause, had the next bargaining level-i.e., the Industrial Relations Council-unanimously agreed to resolve the bargaining dispute in that manner. We are unwilling to hold, therefore, that, by referring the dispute to the Industrial Relations Council, Respon- dent was conditioning any agreement with the Union on an arbitrary insistence upon an inclusion of the IRC clause. Instead, it only referred that issue, in accordance with the agreement between the parties, to the next level of bargaining. Unlike the Administrative Law Judge, we do not find that impasse was a prerequisite to the submis- sion of a dispute to the Industrial Relations Council. The term impasse implies that collective bargaining has failed to produce agreement. It cannot be said that a failureto agree at what we view as the primary stage of a bilevel bargaining procedure amounts to impasse. Until the collective-bargaining process has been exhausted, no impasse can occur. Here the Industrial Relations Council was so integrated with the bargaining process that impasse could not occur until that body was unable to reach agreement. At that point it would be necessary to decide whether the collective-bargaining process was thwarted by 12 314 F.2d 886, 910 (C.A. 4, 1963). 13 See, e. g., International Brotherhood of Electrical Workers, AFL-CIO and International Brotherhood of Electrical Workers, Local 5, AFL-CIO (Franklin Electric Construction Company), 126 NLRB 143; United Mine 3 one party's insistence on a nonmandatory subject as a condition of agreement. Since that did not occur here, we find it is unnecessary to decide whether the IRC clause embodies a nonmandatory subject of bargaining. For all the above reasons, we conclude that the Industrial Relations Council was, by agreement of the parties, an integral part of the collective-bargain- ing process. Since a procedure by which an Interna- tional union participates in a final level of bargaining does not contravene any provision of our Act, it follows that Respondent's persistence in adhering to such a procedure did not violate its duty to bargain in good faith. Accordingly, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER FANNING, dissenting: As my colleagues view this case, the presence of the IRC clause in the parties' collective-bargaining agreement authorized the 'negotiation of a new collective-bargaining agreement by the Industrial Relations Council once the parties who began the negotiations were unable to compromise their differ- ences . This conclusion is, in part, premised on the view that "presence of the Industrial Relations Council in this bargaining relationship is, in effect, an extension of the bargaining rights of the Union," which is affiliated with the International which appoints the "labor" representatives to the Council whose participation in the bargaining is wholly consistent with the normal and constitutional interre- lationships of the Union and the International. They, therefore, conclude that Respondent's insistence that despite the Union's announced unwillingness to negotiate over the continuation of the IRC clause in the agreement being negotiated, the issue of its continuance be submitted to the Industrial Relations Council for final and binding decision did not violate Section 8(a)(5) of the Act. This view of the case can be persuasive only if one ignores two long-established principles of Federal labor policy as developed in interpretations of the Act this Board administers. First, my colleagues ignore the fact that the Union is a labor organization, separate and apart from its International.13 It is the Workers of America and District 30, United Mine Workers of America, and Local No. 9606, United Mine Workers of America (Blue Diamond Coal Company), 143 NLRB 795. 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only labor organization which is the statutory representative of the employees 14 involved in this proceeding. As the Administrative Law Judge ob- served, "[i]f, therefore, contrary to my finding (that the Council performs an arbitration function), the Council were composed of two separate groups engaged in an extension of collective bargaining, it would be cogently argued that the Respondent, by insisting upon the continuation of the IRC clause, bargained to the point of impasse as a condition of agreement on substituting the International for the Union as the employees' bargaining agent in the final stages of collective bargaining. And that would seem to fall within a specific interdiction of the Supreme Court in Borg-Warner. There, the Court held that, where an international is the certified bargaining agent, an employer's proposal to supplant the International with a Local as the party to collective agreement and hence to evade the employer's duty to bargain with the International, is a permissive matter for collective bargaining which cannot be pushed to impasse." I see no difference in principle between substituting the International for the Local Union as the party to the collective-bargaining agreement and substituting the International for the Local Union as the negotiator of the agreement. Respondent's insistence upon such substitution over the objections of the Union seems to me clearly to violate Section 8(a)(5). This leads to the second point, namely, whether the presence of the IRC clause in the parties' 1968 agreement constitutes an agreement to submit to the Industrial Relations Council not only those unsettled issues relating to wages, hours, or working condi- tions, but also the issue of the continuation of the IRC clause itself. Clearly that clause constitutes a waiver by the Union (and Respondent as well) of the right to use its arsenal of economic weapons in the event the parties were unable to settle differences as to "wages or hours or working conditions." It is even possible that an arbitrator looking to the agreement as a whole, its negotiating history, and the entire history of the parties' collective-bargaining relation- ship, might conclude that the intent of the IRC clause was to give the Council the right also to determine whether the IRC clause itself should be 14 N. L. R. B. v. Wooster Division of Borg- Warner Corporation, 356 U.S. 342. 15 My colleagues agree with the Administrative Law Judge that neither the principles of Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB No. 150, nor those of Spielberg Manufacturing Company, 112 NLRB 1080, require or warrant deferral or acceptance of the apparent decision of the Council that it had been impowered to make a final and binding decision that the IRC clause be incorporated into the parties' 1971 collective-bargaining agreement over the objections of the Union, thus providing for the continuation of the Council's role in the negotiation of the next succeeding contract . Perhaps my colleagues' affirmation of the included in the next agreement. But if such an interpretation is possible,15 it is not clearly and unmistakably expressed; indeed the very specificity of the language of the IRC clause as to the matters to be submitted to the Council weighs strongly against such an interpretation. Accordingly, inasmuch as the parties' collective-bargaining agreement does not clearly and unmistakably waive the Union's right to determine for itself whether or not to agree to the inclusion of the IRC clause in the 1971 agreement, the Union cannot be said to have waived the right.16 This is oo whether the Council performs as an arbitration panel, as I believe is the case, or as a negotiating body as my colleagues find is the case. In either event, its authority to act must be found in the parties' agreement with each other setting forth the matters they are willing to submit to the Council. My colleagues implicitly concede that the 1968 collective-bargaining agreement alone does not bind the Union to submit this issue to the Council, for they find that the "International's presence in this bargaining relationship is wholly consistent with the normal and constitutional interrelationships of the local and International bodies, and no element of coercion is involved." And so it well may be. But this is an internal matter affecting the relations and relationships of the unions involved. The Interna- tional may be able, if it chooses to do so, to compel the Union, its local, to agree or even insist upon inclusion of the IRC clause in any agreement negotiated by it as a condition of the Union's maintaining good-standing membership in the Inter- national. It is, however, the International which must determine whether its local union is or is not violating its constitutional obligations. It may deter- mine that the Union has not violated those obliga- tions. Even if it determines otherwise, it may be unwilling for internal policy reasons or for other more pragmatic reasons to enforce those obligations. If it chooses to act, I take it the Parks case cited by my colleagues is authoritative judicial precedent for so acting. That decision, however, cannot be stretched so far as to give Respondent a right under Section 8(a)(5) to compel the Union to appoint the Council (or is it only the representatives on the Council appointed by the International) as its Administrative Law Judge's Decision in this respect flows from their view of the Council as performing a negotiating rather than an arbitration function. Of course if that is so, then the parties' collective-bargaining agreement which alone is the source of the Council's authority to act, though it contains a grievance procedure to handle not only employee grievances but also disputes as to the interpretation of the terms of the agreement , does not provide for arbitration as the final step in settling such disputes, for the final step in that process is the submission of the grievance to the Council itself for what I presume my colleagues view as the negotiation of a settlement. 16 Timken Roller Bearing Co. v. N.LR.B., 325 F.2d 746 (C.A. 6); C& C Plywood Corporation, 148 NLRB 414, affd. 385 U.S. 421. MECHANICAL CONTRACTORS ASSN. OF NEWBURGH 5 bargaining representatives as to matters it has not agreed to submit to the Council.17 For the foregoing reasons, I cannot join my colleagues' decision dismissing the complaint. I have indicated that I view the Council's role as one of arbitration of contract terms rather than an extension of the negotiating process. I do so for the reasons expressed by the Administrative Law Judge. Also for the reasons expressed by him, I believe the question of agreeing to such process is a nonmanda- tory rather than a mandatory subject of collective bargaining, and that Respondent violated Section 8(a)(5) in insisting upon continuing to negotiate concerning that matter and on submitting the question to the Council for final and binding decision after the union had clearly and repeatedly made known its unwillingness to negotiate on the subject. I would affirm his decision in its entirety. 17 It is important to note in this connection that it is the Council and not the International which is, under my colleagues' view, negotiating on behalf of the Union. The Council is a body established by agreement between the International and employer representatives in the industry; it is not part of the International nor is it affiliated with the Union or its International and the fact that the International appoints the "labor" representatives to the Council cannot make it a constituent part of either the Union or the International. Obviously, it was established as an expert body for the settlement of disputes of the sort the Respondent and the Union submitted to it in the hope and expectation of avoiding resort to economic warfare. Nevertheless its authority to act as to any matter must be found in the agreement of the parties submitting the matter for settlement . As indicated, the parties' collective-bargaining agreement provides for the submission of unresolved issues relating to wages, hours , and working conditions ; it does not encompass disputes as to the continuation of the IRC clause itself. Nor has the International acting pursuant to any superior authority it may have with respect to the Union's performance if its collective-bargaining functions entered into any agreement with Respondent respecting this matter. I therefore see little relevance to the issues of this case of the constitutional and intraunion relationships of the Union and its Internation- al. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM FELDESMAN, Trial Examiner: This case, initiat- ed by the filing of a charge on July 20, 1971, by Local Union No. 269, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of Newburgh, New York, herein called the Union, was tried before me on February 23, 1972, in Newburgh, New York, upon a complaint issued on January 14, 1972, by the General Counsel against Mechanical Contractor's Associa- tion of Newburgh, herein called the Respondent. The Respondent filed an answer on January 21, 1972. The complaint alleges that, since on or about July 30, 1971, the Respondent, by insisting, "as a condition of any new collective bargaining agreement, to the point of impasse," that a provision in its last contract with the Union, requiring referral to the "Industrial Relations Council" for resolution of any issue over wages or hours or working conditions the contracting parties are unable to settle through collective bargaining, "be retained and continued in any new collective bargaining agreement," engaged in unfair labor practices violative of Section 8(a)(5) and (1) of the National Labor Relations Act. In its answer the Respondent denies the commission of any unfair labor practices. In essence, the General Counsel contends that the "Industrial Relations Council" or "IRC" provision in past agreements between the Respondent and the Union compels arbitration of any unsettled "economic" or "interest" issues arising from their negotiations looking toward a new contract, in other words arbitration,' absent accord, of what new contract terms between them shall be; that, unlike grievance arbitration, this is a nonmandatory or permissive subject of collective bargaining; that the Respondent in negotiating a new agreement with the Union in 1971 insisted to the point of impasse on continuing and including the IRC provision in that agreement; and that the Respondent consequently violated Section 8(a)(5) and (1) of the Act. But the Respondent, while conceding the IRC provision calls for arbitration, in the event of disagreement, of new contract terms, counters that this is collective-bargaining subject matter of a mandatory nature; that, although it could have therefore insisted to the point of impasse on retaining the provision, it did not in fact do so in its 1971 bargaining negotiations with the Union for a new contract; and that in conse- quence it did not contravene the law. These are the basic issues presented in this case. In addition, the Respondent contends that the Board should defer to an arbitration award issued by the Industrial Relations Council. Upon the entire record, after seeing and hearing the witnesses and observing their demeanor on the stand, and after due consideration of the helpful briefs filed by the General Counsel, the Union, the Respondent, and Me- chanical Contractors Association of America, Inc., herein called the Intervenor amicus curiae,' I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT I find, as the Respondent admits for the purposes of this proceeding in accordance with allegations of the com- plaint, that the Respondent is an association, with its 1 After its motion of April 12, 1972, unopposed by any of the parties, permitted by my order of May 8, 1972, to intervene in this case as amicus curiae and to file a brief with me. 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD principal office and place of business at Newburgh, New York, and that it consists of various employer-members and exists for the purpose, in whole or in part, of bargaining collectively with the Union on behalf of such members. I also find, as the complaint alleges and the Respondent admits, that the employer-members of the Respondent are Favino Construction Ltd., A. C. Smith, Inc., Progressive Plumbing Co., R. Herman Chesser & Son, Fox Plumbing & Heating Co., Inc., and Joseph Fichera, all engaged in the business of providing contracting and related services in the building and construction industry; and that during the past year, a period generally represent- ative of their annual operations, these employer-members "in the course and conduct of their businesses, purchased and caused to be transported and delivered to their places of business, goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to their places of business in interstate commerce directly from states of the United States other than the state in which they are located." Upon the foregoing, I additionally find, as the Respondent further admits in accordance with allegations of the complaint, that the Respondent and its employer- members are and at all times material have been employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED I find, as the complaint alleges and the Respondent admits, that the Union is, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES For a considerable number of years the Union has been recognized as the collective-bargaining representative of the journeymen and apprentice plumbers and pipefitters employed by the Respondent's members, the bargaining relationship having been evidenced by a series of collective agreements covering such employees.2 Before 1962 bar- gaining negotiations were almost always accompanied by a strike before an agreement was reached. In 1962, however, the Union and the Respondent entered into a 3-year contract containing what has come to be known as the "Industrial Relations Council" or "IRC" provision. It reads: On or before the expiration date of this agreement should the parties be unable to settle through collective bargaining, any issue over wages or hours or working conditions shall be referred to the Industrial Relations Council. Pending decision by the Council, workmen shall continue to work under terms and conditions of this agreement which shall remain in full force and effect. Any decision rendered by the Council shall be retroactive from July 15, on. The Industrial Relations Council was established about 1950 to serve the entire plumbing and pipefitting industry 2 1 find that, at all times material to this case, the Union has been the statutory collective-bargaining representative of these employees, and the Union and the Respondent, in regard to them, have had reciprocal rights in resolving disputes arising from collective bargaining, or involving the interpretation- of existing agreements, for contracting parties who voluntarily seek the Council's aid as an arbiter. It was formed by the joint action of the Union's International, representing employees, and the Intervenor amicus curiae and the National Association of Plumbing, Heating, Cooling Contractors, herein called National, both representing employers. The Council itself consists of four members or officers of the Union's International, representing employees, two members or officers of the Intervenor amicus curiae representing employers, and two members or officers of National, also representing employers. The presidents of the three sponsoring organizations are ex-officio but nonvoting members of the Council. Four members of the Council, two representing employees and two representing employ- ers, constitute a quorum. And in the absence of a quorum the representative present appoints an alternate member from his own group to take the place of 'the absent representative. All decisions of the Council are required to be unanimous. A booklet prepared by the Council includes, among other things, the following statement: MARCH 18, 1958 PREVENTION OF STRIKES AND WORK STOPPAGES Gentlemen: We are endeavoring to eliminate strikes and work stoppages which always prove costly and detrimental, not only to Employers, but to the Journeymen of the United Association as well. It is the express purpose and intent of the Industrial Relations Council for the Plumbing and Pipefitting industry to promote, improve and maintain sound peaceful industrial relations between Employers and Employees by creating this voluntary medium for adjudication of local deadlocked disputes, thereby discouraging strikes, lockouts, and other work stoppag- es in the entire Plumbing and Pipe Fitting Industry. The Council will consider disputes arising during collective bargaining over wages, hours and working conditions, after all local facilities for the settlement of such disputes have been exhausted, and will also consider disputes, other than jurisdictional disputes, arising under local collective bargaining agreements if they have been processed through the machinery provided by the local agreement and have failed of settlement. No dispute will be considered by the Council while a strike, lockout or other work stoppage exists. Local collective bargaining committees are urged, in the interest of promoting sound, peaceful industrial relations, to include a provision in their local agree- ments that all disputes over wages, hours and working conditions, other than jurisdictional disputes, which cannot be solved at the local level, be voluntarily submitted to the Council for settlement. There is and obligations to require and engage in collective bargaining as provided in the Act. MECHANICAL CONTRACTORS ASSN. OF NEWBURGH nothing compulsory about using the Council proce- dure, but its use is unanimously endorsed by the United Association, the Mechanical Contractors Asso- ciation of America and the National Association of Plumbing Contractors. Following is a sample paragraph of the type of provision the Council will look with favor on in local agreements: If local facilities to resolve disputes over wages, hours, or working conditions have failed of settlement, both parties agree to submit the dispute to the Industrial Relations Council for the Plumbing and Pipe Fitting Industry, and further agree that all terms and conditions of this agreement shall continue in full force and effect, pending final decision by the Industrial Relations Council. The Council earnestly urges every local collective bargaining committee to incorporate the above, or similar provision, in its local collective bargaining agreement, and use the established procedures of the Council in settling disputes, in the interest of promoting and maintaining peaceful Employer-Employee rela- tions throughout the Plumbing and Pipe Fitting Industry. SINCERELY, GENE MURRAY, CHAIRMAN We heartily endorse the above action of the Industrial Relations Council for the Plumbing and Pipe Fitting Industry and urge the incorporation of the above provisions in all local collective bargaining agreements. Peter T. Schoemann, General President, U.A. Wilbur S. Hokom, President, NAPC Joseph H. Spitzley, President, MCAA In 1965 the Union and the Respondent executed another 3-year contract which continued the IRC provision. And a third 3-year agreement, again including the IRC provision, 3 This quoted language appears in the fourth paragraph of article I of the 1968 contract The IRC provision is the seventh paragraph of that article So that this provision can be read in context , article 1 , from the fourth paragraph on, is here fully set forth 4 This agreement as amended shall be in full force and effect from date of execution which is July 1, 1968, to June 30, 1971, and from year to year thereafter unless notice of termination or modification is given in writing by either party, 90 days prior to each anniversary date on or after July 1, 1971. 5 There shall be no strikes, work stoppages or lockouts during the term of this Agreement It is hereby agreed between the parties that all disputes which cannot be settled by the individual employer involved and the Union must be arbitrated and that the decision of the arbitrators shall be final, binding and retroactive upon the parties, and that there shall be no stoppage of work during such arbitration 6 In the event that a dispute is not settled , such disputes shall be referred to the Joint Arbitration Committee consisting of three representatives of the Union and three representatives of the Employ- ers Said committee shall meet within twenty-four hours following receipt of a notice in writing from either of the parties hereto The Joint Committee reserves the tight to make the final decision in any dispute and final interpretation of any of the articles of this Agreement subject to the rules of arbitration set forth herein If said committee is unable to reach a decision within three days following its first meeting, said committee shall submit the dispute to the Industrial Relations Council for the Plumbing and Pipe Fitting Industry, and further agree that all terms and conditions of this agreement shall continue in full force and 7 despite discussion of its removal, was signed by them in 1968, to be effective "from July 1, 1968, to June 30, 1971, and from year to year thereafter unless notice of termina- tion or modification is given in wasting by either party, 90 days prior to each anniversary date on or after July 1, 1971."3 By letter dated February 2, 1971, the Union notified each of the Respondent's members of its desire "to negotiate a new agreement," pointing out that "our Collective Bargaining Agreement expires this coming June 30th."4 On February 16, 1971, the first of 10 bargaining meetings in Newburgh was held between the Union and the Respondent, acting for its members through a negotiating committee they selected. At such meetings the chairman of the employer negotiating committee, Joseph Favino, was solely empowered "to talk and to make any binding commitments" on behalf of the Respondent and its members, although all the members, each with an equal voice, caucused among themselves and Favino's authority was limited to proposing only that which the members authorized him to propose. On the Union's side, Robert Roth, its business agent from November 1961 to July 1971, and thereafter its business manager, led the negotiations and spoke for the Union. At the third meeting, on March 23, 1971, the Union delivered to the Respondent its initial bargaining propos- als, which included a demand for the elimination from the new agreement of paragraphs 4-9, inclusive, of article I of the 1968 contract, and for the substitution only of a modified paragraph 4. At this meeting the Respondent also conveyed the employers' bargaining proposals. In meetings held thereafter on March 31, April 6, May 17, and June 8 and 15, 1971, the parties apparently reached agreement on some matters, but not on others, especially wages and the Union's request for the deletion of clauses in article 1, including paragraph 7, the IRC provision. During the course of bargaining the Union submitted its demands in three categories, which it designated as "wages," "contract language," and "work rules." As Roth testified, the Union, effect, pending final decision by the Industrial Relations Council 7 On or before the expiration date of this agreement should the parties be unable to settle through collective bargaining, any issue over wages or hours or working conditions shall be referred to the Industrial Relations Council Pending decision by the Council, workmen shall continue to work under terms and conditions of this agreement which shall remain in full force and effect Any decision rendered by the Council shall be retroactive from July 15, on 8 Any or all provisions of the no strike no lockout clause may be altered, changed or removed at any time by mutual consent of both parties concerned 9 It shall not be a violation of this agreement, or of the no strike, work stoppages or lockouts clause if employees covered by this Agreement refuse to cross a legally-established picket line As can be seen from the foregoing the parties contemplated arbitration of "grievance" disputes under paragraphs 5 and 6 of the 1968 agreement, arbitration of "economic" or "interest" questions under paragraph 7, and no strikes or lockouts in connection with either kind of arbitration under the first sentence of paragraph 5 read together with such other paragraphs Paragraph 7, the IRC provision , conforms rather closely to the clause suggested by the industrial Relations Council in its statement of March 18, 1958, which is set out above in the text of this Decision 4 On May 26, 1971, and again on June 15, 1971, the Union sent to the New York State Board of Mediation the notice to it required under Section 8(d) (3) of the Act, and on June 15, 1971, the Union sent to the Federal Mediation and Conciliation Service the notice to it also required under that section 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in response to the suggestion at one session of a member of the employer group and in an attempt "to get negotiations moving," agreed to focus on wages to determine if by a satisfactory accord on that matter alone an overall agreement could be reached, but specifically reserved its right "to bring all the issues back in again. " 5 This approach was not successful; the parties remained quite far apart on wages. Indeed, at the eighth meeting, on June 15, 1971, the Union renewed all its demands and the employers refused to accede to the Union's proposal for the omission of the article 1 clauses. On or about June 25, 2 days following the ninth meeting, the employees represented by the Union engaged in a work stoppage. On June 28, 1971, Favino wrote to the Industrial Relations Council in Chicago, Illinois, informing the Council that under paragraph 7 of article I of the 1968 contract, which would expire on June 30, the employers were submitting "unsettled disputes to your board for arbitration," and asking the Council to "send forms and instructions for submission of items in dispute." Favino's letter indicates that a copy was sent to the Union. On July 14, 1971, the Respondent's members instituted an action against the Union in the Supreme Court of the State of New York, Orange County, a court of original jurisdiction, alleging a breach of contract by the Union and asking the court to compel arbitration and to enjoin the work stoppage. The case was removed by the Union to the United States District Court for the Southern District of New York. There, District Judge Marvin Frankel issued a temporary restraining order on July 20, 1971, which continued until the court's determination of the employers' application for a preliminary injunction. That application was granted by District Judge Morris E. Lasker, who, in his decision of August 3, 1971, relied on Section 301 of the Labor Management Relations Act, 1947, and Boys Markets v. Clerks Union, 398 U.S. 235 (1970). Under his order of August 6, 1971, the Union and its members were found to have breached the no-strike and arbitration provisions of the 1968 contract; the Union and its agents and members were enjoined from striking or refusing to work or engaging in a work stoppage; and the parties were directed to submit to arbitration any outstanding disputes between them, including the meaning of the 1968 agreement and the continuance "of the no strike clause," in accordance with the provisions of that contract. In the meantime, on July 29, the Union forwarded to the Respondent a letter stating that it was "willing to reduce its demand on Art. 1, and modify its position to accept a clause in place of Art. 1, allowing for arbitration for grievances arising during term of contract concerning interpretation of the contract," and demanding a meeting "on Fri. July 30, 71, 8 P.M. in the office of the Union." On July 30, after a telephone conversation between Roth and Favino on July 29, the 10th meeting between the parties was held. At this meeting Roth handed Favino a document S Favino testified that Roth and another official of the Union stated between them on more than one occasion that if there were agreement on "money items everything else would be withdrawn," but he did not specifically dispute Roth's testimony concerning the Union's reservation of right to renew all its proposals, a technique which is not at all unusual in collective bargaining Accordingly, and because Roth impressed me as a containing the Union 's latest request for "changes in Article 1." It reads as follows: Union requests changes in Article I Fourth paragraph to read as follows: This Agreement takes effect July 1, 1971, and expires June 30, 1972 unless a change is desired by either party. A notice of ninety days must be given before this agreement can be re-negotiated. Delete paragraphs seven and eight and insert the following paragraph: This section is not intended nor does it in anyway (sic) limit the Union's rights to take economic recource (sic) for failure by an employer to pay wages or fringe benefits when due. Roth explained at this meeting that the Union did not object to the Council as an arbiter during the term of the collective agreement,, but did oppose "using the council over issues arising out of collective bargaining." As he also testified, he "tried to point out to [Favino] that arbitrators don't have the right to perpetuates themselves in a collective bargaining agreement." After some discussion Roth inquired if the Union's request as submitted would be granted by the employers, and Favino answered in the negative. Roth specifically asked whether the employers would agree to a contract omitting the IRC provision. Favino replied, as Roth testified, "I doubt it, not too promising with the Court order and violation of the agreement." Favino's testimony about this meeting is not substantially different from Roth's. Favino testified that Roth pressed for an answer to his demand for an agreement eliminating the IRC provision, and that his, Favino's, reply was "that it was difficult for me to envision a contract at this particular time, at this moment in time, while the Union was out on strike and while they were in violation of our agreement." He further testified, and I find, that he unsuccessfully attempted to move the discussion to other matters on which there was still disagreement, and that he announced that the IRC provision could be removed from the contract the same way it was inserted- "through the process of negotia- tion." 7 In his testimony, Favino conceded, however, that the employers desired to retain the IRC clause, and that he did not propose anything the Union might give up in return for the employers' agreement to delete it, disclaim- ing that such a proposal was his responsibility. As he further conceded, he made no such proposal after the work stoppage terminated about August 10, 1971; rather he urged before the Industrial Relations Council as an issue for its resolution the retention of the IRC provision, the Respondent taking the firm position that the provision should be continued. Also, on August 10, 1971, James Fox, the "principal" of one of the Respondent's members, stated at the Union's hall, in a conversation with Virginia Roth, generally accurate and dependable witness, I have credited Roth's testimony _ 6 Incorrectly transcribed as "propitiate" and amended to read as above 7 Roth testified that he did not "recall" that this was said, but did not specifically deny it MECHANICAL CONTRACTORS ASSN. OF NEWBURGH secretary of the Union, and the wife of Robert Roth, that "There would be no contract without" the IRC clause." Fox was not a member of the Respondent's negotiating committee, and his remark was not a statement of position or admission binding upon the Respondent and its members. But he was the "principal" of one of six employers constituting the Respondent; Favino and the negotiating committee received their authority from such employers; and Fox attended the July 30 bargaining meeting, the employers' caucus at that meeting, and other employer caucuses. His observation, I therefore find, is entitled to some weight as an opinion-an informed opinion-of the attitude of the Respondent and its members toward the omission of the IRC provision. Certainly Fox's statement reflected his own negative view on the elimination of the clause. On or about August 18, 1971, an arbitration hearing was conducted by the Industrial Relations Council in Rose- mont,Illinois. In, its submission and brief before the Council the Respondent plainly indicated that it desired, inter alia, an award continuing the IRC provision. The Union's submission and brief presented 21 items for the Council to consi --r. Contending that its proposal to delete the IRC provision was not arbitrable, however, the Union in its brief pointed out that while it would fulfill its commitment under the 1968 agreement, it did "not agree to arbitrate at the end of the agreement succeeding this one;" that rules of the Council and the agreement establishing the Council provided that the Council could only hear controversies voluntarily and by mutual agreement submitted to the Council, but the Union did not agree the Council could arbitrate the dispute over the retention of the IRC provision and the Union could not accept a finding that the provision "should continue into successor agreement;" and that this dispute "could not be voluntary if an arbitration board forces its way into a contract by arbitrable award." The composite testimony of Favino and Roth regarding what took place before the Council in Rosemont reveals that the parties submitted their briefs and gave oral testimony; that the Council asked them to attempt to settle matters they could resolve themselves; that they complied with this request and satisfactorily adjusted all issues,9 except for wages and the IRC clause; and that these two questions were all that the Council ultimately kept for consideration and answered. On August 19, the Council rendered its unanimous decision on both issues, determining as to the IRC provision that "The Industrial Relations Council Clause shall be retained without change." No opinion containing reasons accompa- nied its award. As noted before in the "Statement of the Case," the General Counsel contends that the IRC provision requires arbitration of unsettled "economic" or "interest" is- sues-what the new contract terms shall be-and unlike R This finding is based on Mrs. Roth's testimony. Fox went to the hall to see Roth with whom he was friendly, in connection with their personal relationship . Roth was not there, but Fox admitted that he spoke to Mrs. Roth, that "probably" they "talked about the strike a little bit," that he indicated to her that he would like his operations to resume, but that "to [his ] knowledge" he did not make the statement attributed to him by her. Fox attended the July 30 bargaining meeting, although he was not a member of the Respondent's negotiating committee , and he testified that in 9 "grievance" or "rights" arbitration is a nonmandatory subject of collective bargaining ;' that the Respondent in bargaining in 1971 about the Union's demand for omission of the provision from their new collective-bargaining contract insisted to the point of impasse upon its retention as a condition of reaching agreement ; and that the Respondent as a matter of law thereby violated Section 8(a)(5) and (I) of the Act. For the legal conclusion flowing from his two major premises the General Counsel relies upon the decision of the Supreme Court of the United States in N.L.R.B. v. Wooster Division of Borg-Warner Corp., 356 U.S. 342 (1958). In Borg-Warner the Supreme Court divided legal subjects of collective bargaining into two categories, mandatory and nonmandatory, and ruled that even if negotiations are carried on properly as to mandatory matters, balking at entering into any agreement because it does not include a nonmandatory subject is an unlawful refusal to bargain . It held that bargaining to an impasse is permitted (indeed compelled) as to mandatory matters, but not as to nonmandatory. The Respondent argues on the other hand that the IRC provision , although requiring arbitration of unadjusted "economic" or "inter- est" disputes, is a mandatory subject of collective bargain- ing; and that in any case it did not insist to the point of impasse upon including the provision in the new collective- bargaining contract. Whether arbitration, absent agree- ment, of "economic" or "interest" disputes, or "quasi- legislative" arbitration as it is also known , is a mandatory matter for collective bargaining, presents an issue of first impression. As I am persuaded that the Respondent did insist to the point of impasse as a condition to any new contract on continuing the IRC provision, I find it necessary to dispose of this issue as it is raised in the circumstances of this case. But the Respondent raises yet another point that must be dealt with at ,the threshold. The Respondent urges in its brief that the Board, without further ado, "should defer to arbitration in this case ." In support of its position it cites the Board's decision in Collyer Insulated -Wire Co., 192 NLRB No. 150 (1971). But I do not understand from this decision that the Board, without proceeding to the merits of an unfair labor practice case , would in the exercise of its discretion defer to an award which is said to be in substance the sequela of an unfair labor practice . For if the General Counsel is correct in his position, the August 19, 1971, award of the Industrial Relations Council regarding the IRC clause is a byproduct of the Respondent's illegal collective-bargaining stance in insisting to the point of impasse as a condition to any agreement on retaining the clause (and submitting the issue to the Council for resolution). And under the standards for arbitral hearing and determination formulated by the Board in Spielberg Manufacturing Company, 112 NLRB 1080 (1955), and its progeny, the Board would therefore disregard the award as an employers' caucus at that meeting the employers took the position that they wanted to continue the IRC clause . In these circumstances, I believe it likely that Fox made the remark ascribed to him by Mrs. Roth. For this reason, and based on her favorable demeanor on the stand, I have credited her testimony. s Among other things, they apparently agreed on a 1-year term for their new agreement. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD being at variance with or "repugnant" to the Act. In short, in a case of this kind it is essential first to decide the merits of the claimed unfair labor practice. If there is an unfair labor practice, there will be no deferral; if there is no unfair labor practice, deferral becomes academic. That being so, Collyer is inapplicable. To the extent the Respondent may also be arguing that the Board, has no discretionary authority but is obliged as a matter of law to accept the award as binding and to dismiss this unfair labor practice case, I find such a contention to be totally lacking in merit. Whether or not an unfair labor practice has been committed is an issue for the Board to determine pursuant to the exclusive jurisdiction conferred upon it by the Congress under Section 10(a) of the Act. See Carey v. Westinghouse Electric Corporation, 375 U.S. 261, 270-271 (1963). In the realm of the Board's exclusive jurisdiction, any conflicting arbitration award must yield to the Board's valid determination; in fact, "[t]he superior authority of the Board may be invoked at any time." Ibid at 272. As already indicated, I am convinced and find that in the 1971 bargaining negotiations the Respondent insisted to the point of impasse as a condition to any new agreement with the Union on continuing the IRC provision. On July 30, the Union took pains to single out and concentrate upon the provision as a separate item for bargaining. It affirmatively and unqualifiedly asked for the elimination of the clause. The net effect of the Respondent's response to this demand was a refusal to accede. More ritualistic than real was Favino's comment that the omission of the provision was subject to the process of negotiation, as he did not support his statement with a concrete proposal for a quid pro quo by the Union in exchange for the Respondent's assent to the Union's demand. Fox's remark that there would be no contract without the provision appears to have accurately reflected the true attitude of all the employers. Even after the end of the work stoppage the Respondent did not recede from its position, but pressed for the continuation of the clause in the proceedings before the Industrial Relations Council, notwithstanding that the Union vigorously resisted submission of the issue to the Council. Furthermore, on or about August 18 the Respon- dent and the Union at the Council's behest again bargained and sought to resolve their differences. Despite 10 As the Supreme Court held in Borg-Warner good faith does not license the employer to refuse to enter into agreements on the ground that they do not include some proposal which is not a mandatory subject of bargaining [S]uch conduct is, in substance, a refusal to bargain about the subjects that are within the scope of mandatory bargaining This does not mean that bargaining is to be confined to the statutory subjects Each of the two controversial [non-mandatory] clauses [in Borg-Warner) is lawful in itself Each would be enforceable if agreed to by the unions But it does not follow that, because the company may propose these clauses, it may lawfully insist upon them as a condition to any agreement. 356 U S at 349 11 It is now established beyond any doubt that a waiver of rights under the National Labor Relations Act will not be lightly inferred and will not be found to exist unless it is clear and unmistakable . See, for example, Cloverleaf Division of Adams Dairy Co, 147 NLRB 140 (1964), New York Daily Mirror, 151 NLRB 834 (1965), and Intl Union, UAW v N L R B [General Motors Corporation], 381 F.2d 265, 267 (C A D.C, 1967), Bert denied 389 U S 857 Whatever else the IRC clause means, it does not clearly and unmistakably indicate that the Union by agreeing to it in 1968 gave up the statutory right in 1971 to insist that its renewal for another contract term be removed from the negotiating table in accordance with the rules laid down in Borg-Warner case, assuming that it embraces a the Union's demand for the elimination of the IRC clause, however, the Respondent's insistence upon its continuance caused that matter (as well as wages) ultimately to be considered by the Council, whose asserted function after all was only to resolve impasse disputes. The entire course of dealings between the parties, including their actions before the Council, discloses, that they arrived at an impasse over the retention of the IRC clause. Assuming, as the General Counsel urges, that the clause envisages a nonmandatory subject of collective bargaining, under the controlling principles of the Borg-Warner case, supra, the Respondent was obligated not to persist to impasse in proposing its inclusion as a condition to any future collective agreement,10 and the Union had the absolute right to demand its discontinuance.[[ But in final analysis the Respondent brushed aside the Union's demand and was responsible for creating a deadlock over the IRC provision. No contract was reached because of terminal disagreement-the impasse-over wages and continuance of the IRC clause. That the matter of wages was also unresolved by the parties in no way affects the finding I have made that the Respondent insisted to the point of impasse as a condition of any new collective agreement upon the retention of the IRC provision.12 "It [is] not necessary for the Board to find that the company's insistence on this proposal was the sole cause of the failure to.reach agreement. If the proposal is not a mandatory bargaining subject, insistence upon it was a per se violation of the duty to bargain. . . . Any other rule would permit insistence upon a non-mandatory item so long as there were any dispute as to mandatory topics." Industrial Union of Marine & Shipbuilding Workers v. N.L.R.B., 320 F.2d 615, 618 (C.A. 3, 1963), cert. denied 375 U.S. 984. To identical effect: Philip Carey Mfg. Co. v. N.L. R.B., 331 F.2d 720, 728 (C.A. 6, 1964); and N.L.R.B. v. American Compress Warehouse Division of Frost-Whited Company, Inc., 350 F.2d 365, 369 (C.A. 5, 1965). To repeat, the Respondent, I find, on July 30, 1971, and at all times thereafter, specifically again on or about August.18, 1971, insisted to the point of impasse, as a condition to any new collective-bargaining agreement with the Union, that the IRC provision be continued. In view of the foregoing findings and conclusions, the nonmandatory subject of collective bargaining On this assumption, moreover, it would be dangerous to read the clause otherwise, for the facts of this case demonstrate its potential as a never-ending waiver of Borg- Warner rights, a result which should be avoided and which might well be against public policy Labor Law requires its own "Rule against Perpetui- ties," at least where waivers of statutory rights are concerned, and also in other contexts (e.g., the Board's contract-bar rule), perhaps in appropriate circumstances even under Section 301 of the Labor Management Relations Act, 1947, despite principles relating thereto which generally favor a judicial finding of arbitrability in doubtful cases and judicial noninterference with arbitration awards once made Furthermore, it could be said that in the use of the language "should the parties be unable to settle through collective bargaining," the IRC provision affirmatively envisioned collective bargain- ing under law-the National Labor Relations Act and all decisional interpretations of that statute-before any issue would be referred to the Council. This hardly means that the Union waived any Borg-Warner rights that it might have i2 Favino testified that in his opinion there was no impasse over the continuance of the IRC provision, whereas Roth testified that in his opinion there was For my finding, I have relied on more objective evidence than these self-interested views that cancel each other MECHANICAL CONTRACTORS ASSN. OF NEWBURGH 11 nature of arbitration of new contract terms fortified by a ban on strikes-whether it is a mandatory or nonmandato- ry subject of collective bargaining-becomes the remaining and pivotal issue in this case. Preliminarily I find, as the General Counsel, the Union and the Respondent agree, that the IRC provision encompasses arbitration of new contract terms, the function of the Council being that of an arbitrator. In its brief the Intervenor amicus curiae states, among other things, that "The Industrial Relations Council is a natural adjunct to collective bargaining process since it is made up of representatives appointed equally by the employer and the employees through the union and the panel members have at least an indirect stake in the outcome, so that bargaining continues within the panel. " (Emphasis supplied.) But the IRC clause, the Council's booklet, referred to above, including the statement of March 18, 1958, the behavior of the parties directly in interest in the judicial proceedings and the proceedings before the Council, and the conduct of the Council itself, all demonstrate that the Council is intended to act and acts as an independent, unitary, adjudicatory tribunal-in sum, as an arbitrator that hears and decides-despite the fact that it is bipartite, composed of "representatives" of labor and management in equal number. There is no evidence that it is meant to serve or serves as an extension of collective bargaining, as such,- with arms-length dealing between the labor "representatives," acting solely for the employees, and the management "representatives," acting solely for the employers, and with each group of "repre- sentatives" charged as an agent with the duty to represent its constituents fairly and single-mindedly and with the obligation to avoid any conflict with that duty. To be sure, a bipartite arbitration panel is a unique and probably extremely knowledgeable and sensitive tribunal, but it cannot be both an arbitrator and a projection, in practice, of collective bargaining. It should be noted that the Union is a labor organization separate and apart from its International, from which employee "representatives" are allocated to the Council, and that it is the Union alone which is the statutory bargaining representative of the employees involved in this proceeding. If, therefore, contrary to my finding, the Council were composed of two separate groups engaged in an extension of collective bargaining, it could be cogently argued that the Respon- dent, by insisting on the continuance of the IRC clause, bargained to the point of impasse as a condition of any agreement on substituting the International for the Union as the employees', bargaining agent in the final stages of collective bargaining. And that would seem to fall within a 13 N.L.R.B. v. Tex-Tan, Inc., 318 F.2d 472 (C.A. 5, 1963); Philip Carey Mfg. Co., 140 NLRB 1103 (1963); Boeing Airplane Co., 80 NLRB 477 (1948). 14 Central Metallic Casket Co., 91 NLRB 572 (1950). 15 Cf. Local Union No. 103, International Association of Bridge, Structural, and Ornamental Iron Workers, AFL-CIO (Associated General Contractors of America, Evansville Chapter, Inc.), 190 NLRB No. 145 (1971), in which a majority of the Board held that a demand for a contractual provision that jurisdictional disputes be submitted for resolution to the "National Joint Board for the Settlement of Jurisdictional Disputes," is a mandatory subject of collective bargaining, but pointed out that "the function of any group designated to resolve ... jurisdictional disputes is not to negotiate on behalf of the parties before it but is more in the nature of an umpire or a knowledgeable arbitration panel to consider only certain types of problems." (Emphasis supplied.) 16 Compare the facts in the case referred to in In. 15, supra. There, unlike specific interdiction of the Supreme Court in Borg-Warner. There, the Court held that, where an International is the certified bargaining agent, an employer's proposal to supplant the International with a local as the party to the collective agreement, and hence to evade the employer's duty to bargain with the International, is a permissive matter for collective bargaining which cannot be pushed to impasse. Of course, it makes absolutely no difference that here the substitution would be in reverse-the Internation- al for a local entitled to status as statutory bargaining representative. A somewhat more difficult question is whether a proposal to substitute one union for another which is the statutory bargaining agent, after an impasse on "economic" or "interest" issues has been reached with the latter, is no different in substance from a proposal to substitute the former for the latter as the party to the collective agreement. Notwithstanding that an impasse may be arrived at in collective bargaining, the role of the employees' statutory agent continues. It has the right not to be ignored or supplanted but with full status to hold economic pow- er-the strike-in reserve, or even to use it. This may break the impasse and bargaining may be renewed between it and the employer. Or the impasse may be relieved by changed circumstances unrelated to the threat or use of a strike, and bargaining between it and the employer thereafter resumed. Indeed, if an impasse is reached, although marathon talks are not required, the obligation to bargain by conference and discussion is not concluded, it is merely halted temporarily.13 In this period of suspension the employer may not act in such manner as to impair the collective-bargaining process, or, in effect, to withdraw recognition of the representative status of the employees' bargaining agent.14 I am therefore of the view that if the Council by its labor and management "repre- sentatives" did engage in collective bargaining after impasse on substantive issues between the Union and the Respondent, the Respondent's demand for renewal of the IRC clause would have been a nonmandatory matter for bargaining.15 Whether it is substantially equivalent for an employer to propose that after impasse on "economic" issues an arbitrator assume complete control and decide them (and the statutory bargaining agent forego the right to strike), is the quintessential issue to be determined in this case.16 In Borg-Warner, the Supreme Court turned to Section 8(d) of the National Labor Relations Act, and to Section 8(a)(5) of that Act, and remarked: Read together these provisions establish the obligation here, the panel was "to consider only certain types of problems," merely "jurisdictional disputes," not what the substantive provisions of the forthcoming collective agreement should be. In both function and scope of activities of the arbitration panel, the situations are clearly distinguishable. The Board majority observed in that case : "It seems to us that there are few matters more properly the subject of collective bargaining than the method of resolving [jurisdictional] disputes ." But since collective bargaining itself is the approved method in this country for reaching or not reaching a collective agreement, which is not compelled as a matter of public policy, even arbitration as a substitute for a major phase of collective bargain- ing-the interval after any impasse on "economic" issues and noninterfer- ence with the freedom of the employees' bargaining agent during that period-can scarcely be said to be comprehended by the majority's observation. 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the employer and the representative of its employees to bargain in good faith with respect to `wages, hours, and other terms and conditions of employment. . . . [the language of Section 8(d)]. The duty is limited to those subjects, and within that area neither party is legally obligated to yield. . . . As to other matters, however, each party is free to bargain or not to bargain, and to agree or not to agree. [356 U.S. at 349.] It thus broadly delineated the subjects of mandatory bargaining, on the one hand, and the subjects of nonman- datory or permissive bargaining, on the other. "In general terms," the Supreme Court has further ruled, "the limitation [of what are mandatory subjects for collective bargaining] includes only issues that settle an aspect of the relationship between the employer and employees." Chemi- cal Workers v. Pittsburgh Glass, 404 U.S. 157, 178 (1971). Grievance arbitration has long been held to be a mandatory subject of collective bargaining.17 "Just as an employer must bargain with the representative of his employees on grievances so must he about a method of resolving them. Arbitration is one way in which this may be done." 18 Underlying this notion are a number of special reasons, not the least of which is the general acceptance in this country of the institution of grievance arbitration. The Supreme Court has proclaimed: Complete effectuation of the federal policy is achieved when the agreement contains both an arbitration provision for all unresolved grievances and an absolute prohibition of strikes, the arbitration agreement being the `quid pro quo' for the agreement not to strike. Textile Workers v. Lincoln Mills, 353 U.S. 448, 455. Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 578 In. 4 (1960). Under our system of industrial relations, labor and management are each free to contract for the essential terms of the hire. Negotiations, agreement, if reached, and dealings under the agreement, complete the cycle of collective bargaining. Grievance arbitration satisfies a need and attaches with the execution of a collective-bargaining contract, when reciprocal rights and obligations have been established in the industrial community and stability of labor relations has ostensibly been achieved. Major differences having been adjusted for a stipulated period, this is the interval for uninterrupted peace, manifested by the collective agreement itself. Moreover, the agreement serves as the charter for orderly industrial self-government through which that peace may be assured. -[T ]he grievance machinery under a collective bargaining agreement is at the very heart of the system of industrial self-government. Arbitration is the means of solving the unforeseeable by molding a system of private law for all the problems which may arise and to provide for their solution in a way which will generally accord with the variant needs and desires of the parties. The processing of disputes through the grievance machinery is actually a vehicle by which meaning and content are given to the collective bargaining agreement." Steelworkers v. Warrior & Gulf Co., supra, 363 U.S. at 581. As the Court indicated, important to industrial self-government is a method for resolving disagreements arising between labor and management in the interpreta- tion and application of their contract and in matters affecting their relationships during its term. Indeed, the procedures for such adjustment, including recourse to a third person in the event the contracting parties fail in their own efforts to reconcile their differences, are thought to be central to the system, in fact at the core of collective bargaining, in the contract stage. "Apart from matters that the parties specifically exclude, all of the questions on which the parties disagree must therefore come within the scope of the grievance and arbitration provisions of the collective agreement. The grievance procedure is, in other words, a part of the continuous collective bargaining process. It, rather than a strike, is the terminal point of disagreement." Steelworkers v. Warrior & Gulf Co., supra, 363 U.S. at 581. In enacting Section 301 of the Labor Management Relations Act, 1947, the Congress was not only concerned with making collective agreements enforce- able in the Courts, it "was also interested in promoting collective bargaining that ended with agreements' not to strike," and it "adopted a policy which placed sanctions behind agreements to arbitrate grievance disputes. . . Textile Workers v. Lincoln Mills, 353 U.S. 448, 453, 456 (1957). Arbitration of new contract terms is not novel in this country. Professor Jack Stieber, in a paper entitled "Voluntary Arbitration of Contract Terms," which he presented in Montreal on April 8, 1970, to the Annual Meeting of the National Academy of Arbitrators,19 had this to say (at 1): Arbitration as we know it today-involving the use of an impartial person or a board to render a final and binding decision in labor disputes-dates from about the turn of the 20th century. Before 1900 the term arbitration was used to describe negotiations over wages, hours and working conditions between employ- ers and unions, with or without the assistance of a third party. This terminological problem makes any assess- ment of the extent of arbitration before 1900 quite unreliable. Even after 1900 statistics and information regarding third party arbitration are hard to come by and often of dubious reliability. [Fn. omitted.] We do know that in the early 20th century and up to the 1930's arbitration of wages, hours and other contract terms was more common than grievance arbitration. One reason for this was simply that a prerequisite for grievance arbitration is the existence of a written agreement and a fairly mature collective bargaining relationship between the parties. Such a relationship did not exist in many industries until the 1930's. In others, where union recognition and collec- tive bargaining have a longer history, the relationship was often unstable, subject to interruption as employers succeeded in breaking away from the union, and lacking in the degree of initial acceptance necessary for the arbitration of grievance disputes. There are, of course, industries in which grievance arbitration goes back to the early 1900's but these are exceptions. [Fn. omitted.] In its brief, the Respondent, citing Arbitration Proce- 17 U. S. Gypsum Company, 94 NLRB 112 (1951). 19 Contained in a Special Report of the Bureau of National Affairs, Inc., 18 /bid at 131. attached to its Daily Labor Report of May 1, 1970. MECHANICAL CONTRACTORS ASSN. OF NEWBURGH 13 dures, Bulletin No. 1425-6 (June 1966), Bureau of Labor Statistics, U.S. Department of Labor, correctly states that .,only about two percent of major collective agreements provide for arbitration over the terms of new contracts. But the Bureau's latest study indicates that approximately 75,700 workers are covered by contracts which provide for such arbitration with approximately 17,000 of such employees being in the construction industry." Chapter VIII of the Bulletin, entitled "Arbitration of New Contract Terms," opens, however, with the following paragraph (at 95): One aspect of labor-management relations that has not changed significantly during the postwar period is the reluctance of unions and managements, either sepa- rately or together, to entrust the determination of new contract terms to arbitrators. Less than 2 percent of the 1,717 major agreements studied provided for the arbitration of disputes over the terms of new contracts. In 1949 and 1952, according to two earlier Bureau studies [Fn. omitted], the proportion was approximate- ly 2 percent. In the instance of disputes arising out of the permissible wage or other economic issues during the term of the contract, 4 percent of the 1,717 agreements provided for arbitration, as compared to 10 and 11 percent in 1949 and 1952, respectively. Although these earlier figures are not strictly compara- ble, the present study seems to demonstrate, if anything, that the arbitration of contract terms was even less popular in the early 1960's than a decade or more earlier. It is highly significant that in a section headed "Preva- lence of Grievance Arbitration," the bulletin contains the following contrasting statistical information (at 5): Provision for arbitration of some or all grievance disputes was incorporated in 1,609 (94 percent) of the 1,717 agreements analyzed, covering 96 percent of the workers. . . . The proportion of agreements providing for grievance arbitration reflects a steady increase in prevalence. In 1944, 1949, and 1952 Bureau studies, arbitration provisions were found in 73, 83, and 89 percent of the agreements, respectively [Fn. omitted]. From a number of respected quarters has come the suggestion that voluntary arbitration of new contract terms should be encouraged as an alternative to economic action and as a viable method of adjusting labor disputes.20 Establishment of the Industrial Relations Council in the plumbing industry is illustrative of the effort made to use this approach (as well as to further grievance arbitration) in the interest of eliminating industrial strife and providing some kind of fair substitute for the right to take economic action. In the public sector there is growing acceptance by governmental authorities of arbitration of impasse disputes in certain areas to fill the void that exists because the strike is generally unavailable to civil servants as a legal economic weapon. Furthermore, Professor Stieber men- 20 E.g., Quasi-Legislative Arbitration Agreements, Note, 64 Columbia L. Rev. 109 ( 1964); Cushman, Voluntary Arbitration of New Contract Terms-A Forum in Search of a Dispute, 16 Labor Law Journal 765 (1965). 21 Boston Printing Pressmen 's Union v . Potter Press, 241 F.2d 787 (C.A. 1, 1957), cert. denied 355 U.S. 817; Austin Mailers Union No. 136 v. Newspapers, Inc., 329 F.2d 312 (C.A. 5, 1964), cert. denied 377 U.S. 985. tions in his paper (at 11) that the results of a study he conducted demonstrate that: Forty-two percent of the management representatives and 64 percent of the union representatives [sent questionnaires] report that they would be willing to `consider' final and binding arbitration of contract terms, either on an ad hoc basis when a strike deadline approaches, or by including in their agreement a provision to arbitrate unresolved issues, or both. Ad hoc arbitration is much more popular than arbitration by prior agreement with both groups, 37 union and 25 management representatives saying this is the only kind of arbitration they would consider. His study further reveals that in general this willingness is made contingent upon the imposition of certain condi- tions; and that both labor and management groups which had had experience with arbitration of new contract terms evince a strong inclination to try it in the future, but "the preference for ad hoc arbitration is stronger than for including provisions in agreements to arbitrate unresolved contract issues" (pp. 11-12). Interestingly enough, Professor Stieber concludes his paper on the following note (at 19): We do not expect and indeed would deplore the widespread use of contract arbitration to resolve labor- management disputes. Nor is it desirable that arbitra- tion be invoked to avoid strikes in all cases where negotiations have failed to produce a settlement. Collective bargaining must continue to be the primary method for reaching agreements between unions and companies. However, voluntary contract arbitration has proved itself as a useful and constructive method for settling disputes in the past and there is reason to believe that circumstances will prevail which will be particularly adaptable to its use in the future. [Emphasis supplied.] For the purposes of this case, it will be assumed, arguendo, that, notwithstanding decisions to the contrary,21 as the Respondent contends in its brief the better view and weight of authority support the proposition that an agreement for quasi-legislative arbitration is specifically enforceable in the courts under Section 301 of the Labor Management Relations Act, 1947.22 The Respondent also properly notes that in Title II of that Act there is the declaration: Sec. 201. That it is the policy of the United States that- (b) the settlement of issues between employers and employees through collective bargaining may be advanced by making available full and adequate governmental facilities for conciliation, mediation, and voluntary arbitration to aid and encourage employers and the representatives of their employees to reach and maintain agree- ments concerning rates of pay, hours, and working conditions, and to make all reasonable 22 Winston-Salem Printing Pressmen v. Piedmont Publishing Co., 393 F.2d 221 (C.A. 4, 1968); A. Seltzer & Co. v. Livingston, 361 F.2d 218 (C.A. 2, 1966); Builders Association of Kansas City v. Greater Kansas City Laborers, 326 F.2d 867 (C.A. 8, 1964). cert . denied 377 U.S. 917; See M.K. & 0. Transit Lines, Inc. v. Division No. 892, etc., 319 F.2d 488,490 (C.A. 10, 1963), cert denied 375 U.S. 944. See also the articles mentioned in fn. 20, supra. 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD efforts to settle their differences by mutual agreement reached through conferences and collective bargaining or by such methods as may be provided for in any applicable agreement for the settlement of disputes. But all of the foregoing, while evidencing the legitimacy, availability, and in some instances the wisdom of voluntary arbitration of new contract terms, and its binding effect when the parties have consented to accept this dispute; settling device, does not establish that it is or should be a mandatory subject of collective bargaining. It is altogether unlike grievance arbitration. "[W ]hile not determinative, it is appropriate to look to industrial bargaining practice in appraising the propriety of including a particular subject within the scope of mandatory bargaining." Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203, 211 (1964). In sum, the industrial bargaining practice, generally, and in the construction business, specifically, is to put quasi- legislative arbitration to very little use, despite indications of greater future receptivity by labor and management of this mode of adjustment of labor disputes and suggestions that it be encouraged and resorted to more frequently. That the Respondent and the Union agreed to include the IRC clause in their 1962 contract and continue it in their agreements until 1971 does not make it a mandatory subject of collective bargaining. Their own contract history is insufficient by itself to convert a nonmandatory matter for bargaining into a mandatory one. Chemical Workers v. Pittsburgh Glass, 404 U.S. 157, 187-188 (1971). This is to say nothing of the disturbing tendency a contrary concept would have in this case, where one party at the appropriate time for renegotiating a contractual provision refused to consent to its continuation and sought to break away from it. Combining with all the circumstances here present, that tendency would be to shackle the nonconsenting party to the provision forever. In his paper Professor Stieber further reports (at 10): An interesting complaint against arbitration provisions [for new contract terms] is that once such clauses are negotiated they are difficult to get rid of. One union attorney comments that some arbitrators consider a request to eliminate a provision as a reflection on their competence. A recent decision shows that at least one arbitrator does not share this view. Arbitrator Harry Platt decided that a provision calling for final and binding arbitration of any matters not settled in collective bargaining should not be included in a new contract between the parties. The three employers involved wanted to continue the provision; the union favored eliminating it. Platt concluded that'. . . while a policy of terminal arbitration might be salutary and promotive of industrial peace when adopted voluntari- ly, it would not necessarily be either [sic] if imposed by a third party against the will of either contracting party. [Fn. omitted.] Notwithstanding the union attorney's experience, the author believes that Platt's opinion reflects the views of the overwhelming majority of professional arbitrators. 23 A no-strike commitment is broadly stated to be a mandatory subject of collective bargaining But the precedent commonly cited for this proposition is a case in which the no-strike agreement proposed was for the It suffices to say that the Council's action in the instant case reveals a judgment opposed to Platt's and raises the specter of a contractual stipulation binding a nonconsent- ing party in perpetuity. It can hardly be asserted, moreover, that, as the Supreme Court said in regard to grievance arbitration, there is "complete effectuation of the federal policy" when there is agreement on arbitration of new contract terms and "an absolute prohibition of strikes, the arbitration agreement being the `quid pro quo' for the agreement not to strike." On the contrary, although grievance arbitration is encour- aged and accepted as a component of the grievance machinery and as such becomes for the term of the contract and during that interval of repose "a part of the continuous collective bargaining process" in the interpreta- tion and application of the agreement and in the relationships between the parties, arbitration of what their future contract should be joined with the barring of strikes is no more than an outright substitute for collective bargaining itself.23 That it is contemplated that arbitration will not take hold until after impasse is of no consequence whatever. For it has already been shown that collective bargaining is not terminated at this juncture, it merely reaches another level, in fact a major phase of the entire process, during which it is essential to the statutory scheme that both the process and the representative status of the employees' bargaining agent remain inviolate. Significant- ly, moreover, the strike ban here was meant to be effective at all stages of bargaining, from the time of its inception, both before and after impasse. (I deem it unnecessary to undertake consideration of the General Counsel's argu- ment, which may be sheer speculation, that quasi-legisla- tive arbitration, not ad hoc, but, as here, assented to in advance by collective agreement, precludes proper collec- tive bargaining at the very outset of negotiations for a new contract, as "the parties will likely take positions at the bargaining table, not for the purpose of arriving at some compromise agreement, but rather to buttress their positions before the arbitrater.") Stripped to fundamentals, what the Respondent pro- posed in this case was that collective bargaining be abandoned at a vital point, and that the Union totally yield its statutory right to bargain as the representative of the employees, committing itself not to strike at any time starting with the initiation of bargaining negotiations for a new contract, in favor of adjustment by a third party, before whom the Union would be transformed from a bargaining agent into an advocate. While this is one method by which labor disputes can be settled-possibly even a reasonable and desirable way-it cuts across the grain of our national labor relations policy for the private sector of our economy, so much so that either party, the employees collectively by their bargaining representative, or the employer, should have the unqualified right to insist upon its elimination as an issue from their negotiations and its removal as a stumbling block in their endeavors to reach agreement. Each party should be afforded the utmost liberty to decide of its own volition whether to term of the contract and was not coupled with arbitration of "economic" or "interest" issues That case is Shell Oil Co. 77 NLRB 1306 (1948) MECHANICAL CONTRACTORS ASSN. OF NEWBURGH eschew collective bargaining and its statutorily guaranteed right to participate in that process, and to accept instead quasi-legislative arbitration united with a ban on economic action. If there is any lingering doubt of what our national labor relations policy is and how the Respondent's demand ran counter to its objectives, the following elucidating language of the Supreme Court in N.L.R.B. v. Insurance Agents' International Union, 361 U.S. 477, 488-489 (1960), should help to dissipate it: It must be realized that collective bargaining under a system where the Government does not attempt to control the results of negotiations, cannot be equated with an academic collective search for truth--or even with what might be thought to be the ideal of one. The parties-even granting the modification of views that may come from a realization of economic interdepen- dence-still proceed from contrary and to an extent antagonistic viewpoints and concepts of self-interest. The system has not reached the ideal of the philosophic notion that perfect understanding among people would lead to perfect agreement among them on values. The presence of economic weapons in reserve, and their actual exercise on occasion by the parties, is part and parcel of the system that the Wagner and Taft-Hartley Acts have recognized. Abstract logical analysis might find inconsistency between the command of the statute to negotiate toward an agreement in good faith and the legitimacy of the use of economic weapons, frequently having the most serious effect upon individual workers and productive enterprises, to induce one party to come to the terms desired by the other. But the truth of the matter is that at the present statutory stage of our national labor relations policy, the two factors-neces- sity for good-faith bargaining between parties, and the availability of economic pressure devices to each to make the other party incline to agree on one's terms-exist side by side. None of this is to say or imply that a substitution of quasi-legislative arbitration for collective bargaining or a symbiosis of the two is impossible or undesirable. By their consent labor and management can decide for themselves to accomplish this end. But such consent must be sought and not exacted, meaning only that the proponent of arbitration is required to respect and accept the other side's firm rejection and its consequent demand that collective bargaining alone be pursued to arrive at new contract terms. I conclude and find that the Respondent, by demanding through the IRC clause arbitration of new contract terms along with a prohibition against strikes, sought to evade its statutory duty to bargain collectively with the Union as the representative of the employees here affected, and that its demand consequently dealt with a nonmandatory subject of collective bargaining within the meaning of the Supreme Court's decision in Borg-Warner. And I further conclude and find that the Respondent, on July 30, 1971, and at all times thereafter, specifically again on or about August 18, 24 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 15 1971, insisted to the point of impasse as a condition of any collective agreement on the continuation of the IRC clause, and that it thereby violated Section 8(aX5) and (1) of the National Labor Relations Act. Upon the foregoing findings of fact and the entire record, I make the following: CONCLUSIONS OF LAW 1. The Respondent, Mechanical Contractors Associa- tion of Newburgh, and its employer members, are and at all material times have been employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, Local Union No. 269, United Associa- tion of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of Newburgh, New York, is and at all material times has been a labor organization within the meaning of Section 2(5) of the Act. 3. The Union is and at all material times has been the statutory exclusive collective-bargaining representative of all journeymen and apprentice plumbers and pipefitters employed by the Respondent's members. 4. By insisting to the point of impasse, as a condition of a new collective-bargaining agreement with the Union, on the continuation of the IRC clause, a provision which requires arbitration of new contract terms and no econom- ic action and which consequently is not a mandatory subject of bargaining, the Respondent has since July 30, 1971, and specifically again on or about August 18, 1971, engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. IV. THE REMEDY Having found that the Respondent violated Section 8(a)(5) and (1) of the Act by insisting on a nonmandatory contract provision to which the Union objected, it will be recommended that the Respondent be ordered to cease and desist from such conduct and take certain affirmative action in order to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, 1 hereby issue the following recommended: 24 ORDER The Respondent, Mechanical Contractors Association of Newburgh, Newburgh, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain with the Union as the statutory exclusive bargaining representative of all journeymen and apprentice plumbers and pipefitters employed by the Respondent's members. (b) Refusing to bargain with the Union by insisting and demanding that the Union agree as a condition of any 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective-bargaining contract on the inclusion therein of a provision that the Union arbitrate new contract terms and withhold economic action in connection therewith. (c) In any like or related manner refusing to bargain collectively with the Union by insisting upon the inclusion in any collective-bargaining agreement of any clause or other proposal not involving wages, hours, and other terms and conditions of employment. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Bargain With the Union upon request as the statutory exclusive bargaining representative of all journeymen and apprentice plumbers and pipefitters employed by the Respondent's members. (b) Notify the Union in writing that the Respondent will not insist that the Union agree to arbitrate new contract terms and forego economic action in connection therewith as a condition of entering into a collective-bargaining contract with the Union. (c) Post in the Respondent's business offices and meeting places, and, the Respondent's members willing, in the places of business of such members, copies of the attached notice marked "Appendix." 25 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members and its members' employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 2, in writing, within 20 days from receipt of this Decision, what steps the Respondent has taken to comply herewith.26 25 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 26 In the event this recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL bargain upon request with Local Union No. 269, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of Newburgh, New York, as the exclusive bargaining agent of all journeymen and apprentice plumbers and pipefitters employed by employers who are our members. WE WILL NOT insist and demand in bargaining with said Union that the Union agree, as a condition of any collective-bargaining contract, on the inclusion therein of a provision that the Union will arbitrate new contract terms and withhold economic action in connection therewith, and we will notify the Union to that effect. WE WILL NOT in any like or related manner refuse to bargain with the said Union by insisting upon the inclusion in any collective-bargaining agreement of any clause or other proposal not involving wages, hours, and other terms and conditions of employment. MECHANICAL CONTRACTORS ASSOCIATION OF NEWBURGH (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 36th Floor, Federal Building, 26 Federal Plaza, New York, New York 10007, Telephone 212-264-3311.