Columbus Printing Pressmen Union No. 252

268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Columbus Printing Pressmen & Assistants' Union No. 252, Subordinate to IP & GCU and The R. W. Page Corporation. Case 10-CB-2334 July 18, 1975 DECISION AND ORDER On July 17, 1974, Administrative Law Judge Jerry B. Stone issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the Charging Party filed a reply brief. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. From a reading of the concurring opinion of Mem- ber Jenkins one would gain the impression that Col- lyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971), represents the aberrant views of Members Kennedy and Penello, rather than a principle firmly endorsed by court decisions; and that it has been applied so as to discriminate against respondent unions. Neither of these views is accu- rate. Collyer has been approved in the following court decisions: T.I.M.E.-DC, Inc. v. N.L.R.B., 504 F.2d 294 (C.A. 5, 1974); Banyard v. N. L. R. B., 505 F.2d 342 (C.A.D.C., 1974); Local Union No. 2188, Internation- al Brotherhood of Electrical Workers, AFL-CIO [Western Electric Co.] v. N.L.R.B., 494 F.2d 1087 (C.A.D.C.), cert. denied 419 U.S. 835 (1974); Local Union No. 715, International Brotherhood of Electrical Workers, AFL-CIO [Malrite of Wisconsin] v. N.L.R.B., 494 F.2d 1136 (C.A.D.C., 1974); Associated Press v. N.L.R.B., 492 F.2d 662 (C.A.D.C., 1974); N.L.R.B. v. Brotherhood of Railway, Airline and Steamship Clerks, 498 F.2d 1105 (C.A. 5, 1974); N. L.R.B. v. Cincinnati Local 271, Lithographers & Photoengravers International Union, AFL-CIO [Unit- ed States Playing Card Co.], 495 F.2d 763 (C.A. 6, 1974); Enterprise Publishing Company v. N. L. R. B., 493 F.2d 1024 (C.A. 1, 1974); Provision House Work- ers Union Local 274, AFL-CIO [Urban Patman, Inc.] v. N.L.R.B., 493 F.2d 1249 (C.A. 9), cert. denied 419 U.S. 828 (1974); and Nabisco, Inc. v. N.L.R.B., 479 F.2d 770 (C.A. 2, 1973). Six different courts of ap- peals have thus approved the majority view ex- pressed in Collyer. Not a single court of appeals has endorsed the dissenting views of Members Fanning and Jenkins in Collyer. Uniformly the courts have rejected the view as stated in the present concurrence that "where ... an alleged unfair labor practice is at issue the Board must not defer to arbitration, but must, instead, decide the case in accordance with the mandate imposed on the Board by Congress in the National Labor Relations Act." On the contrary, the courts have approved Collyer as "supported by the same federal labor policy favoring settlement of dis- putes through procedures provided by collective bar- gaining agreements." Associated Press v. N. L. R. B., 492 F.2d 662, 667. Or as stated by the court in T.I.M.E.-DC, Inc. v. N.L.R.B., supra at 302: Spielberg and Collyer represent a part of the NLRB's continuing effort to facilitate the prompt and expert settlement of labor disputes in a peaceful manner by the parties involved, without resort to the sometimes ponderous ap- paratus of federal intervention. Not only has the Supreme Court denied certiorari in two cases cited above, but that Court specifically endorsed the Collyer doctrine in William E. Arnold Company v. Carpenters District Council of Jacksonville and Vicinity, 417 U.S. 12 (1974). The Court stated, 417 U.S. at 16: Indeed, Board policy is to refrain from exer- cising jurisdiction in respect of disputed conduct arguably both an unfair labor practice and a contract violation when, as in this case, the par- ties have voluntarily established by contract a binding settlement procedure. See, e.g., The As- sociated Press, 199 NLRB 1110 (1972); Eastman Broadcasting Co., 199 NLRB 434 (1972); Labor- ers Local 423, 199 NLRB 450 (1972); Collyer In- sulated Wire, 192 NLRB 837 (1971). The Board said in Collyer, "an industrial relations dispute may involve conduct which, at least arguably, may contravene both the collective agreement and our statute. When the parties have contrac- tually committed themselves to mutually agree- able procedures for resolving their disputes dur- ing the period of the contract, we are of the view that those procedures should be afforded full opportunity to function. . . . We believe it to be consistent with the fundamental objectives of Federal law to require the parties . . . to honor their contractual obligations rather than, by casting [their] dispute in statutory terms, to ig- nore their agreed-upon procedures." Id. at 842- 843. The Board's position harmonizes with Con- gress' articulated concern that, "[f]inal adjustment by a method agreed upon by the parties is . . . the desirable method for settlement of grievance dis- putes arising over the application or interpretation of an existing collective-bargaining agreement. . .. " §203(d) of the LMRA, 29 U.S.C. § 173(d). 219 NLRB No. 54 COLUMBUS PRINTING PRESSMEN UNION NO. 252 [Emphasis supplied.] We believe the Supreme Court's endorsement of the Collyer principle is a complete answer to the unhap- py dissenters in the Collyer case. If so many of the courts of appeals had not ap- proved Collyer, I if the Supreme Court had not denied certiorari in two of these cases, if the Supreme Court had not specifically expressed its approval of the Col- lyer doctrine (see the quotation from Wilinliam E. Arnold Company v. Carpenters District Council of Jacksonville and Vicinity, supra) we might be inclined to examine at length the arguments put forth in Member Jenkins' concurring opinion to justify the minority position in Collyer. Judicial acceptance of the doctrine is too widespread to require any further theoretical justification at this time. However, some- thing must be said of the concurring opinion's reli- ance on Alexander v. Gardner-Denver Company, 415 U.S. 36 (1974). That was a district court case brought under Title VII of the Civil Rights Act of 1964, alleg- ing that the complainant had been discharged for ra- cially discriminatory reasons in violation of the Act. The district court dismissed the suit upon the ground that an arbitrator had decided that the dismissal was not for racially discriminatory reasons. The court of appeals affirmed. The Supreme Court reversed upon the ground that Title VII was designed to supple- ment, rather than supplant, existing laws and institu- tions relating to employment discrimination. In sum, the court concluded, "Title VII's purpose and proce- dures strongly suggest that an individual does not forfeit his private cause of action if he first pursues his grievance to final arbitration under the nondiscri- mination clause of a collective-bargaining agree- ment." The same court which unanimously decided Alex- ander v. Gardner-Denver Company, 2 months later r The implication in Member Jenkins concurring opinion that the court of appeals in Banyard v. N.L R.B., 505 F.2d 342 (C A D.C., 1974), had rescind- ed its approval of Collyer and had adopted the view of the Collyer dissenters is inaccurate. The court stated, 505 F.2d at 345: [I]n Associated Press v. N.L.R.B., we approved the application of both Spielberg and Collyer However, our acceptance of those doctrines was and is founded upon the premise that they are appropriately applied only where the resolution of the contractual issues is congruent with the resolution of the statutory unfair labor practice issues. The court did not disagree with the prearbitral deferral of the case under Collyer, but with the adoption of the postarbitral awards under Spielberg Spielberg Manufacturing Company, 112 NLRB 1080 (1955). The court added two further requirements to the three theretofore recognized as conditions precedent to Board adoption of arbitral awards under Spielberg. In addition to the requirements that: (1) the arbitral proceedings be fair and regular, (2) the parties agreed to be bound by the arbitral award, and (3) the arbitral decision not be clearly repugnant to the purposes and policies of the Act, the court added that (4) the arbitral tribunal must clearly have decided the issue on which it is later urged that the Board should give deference, and (5) the arbitral tribunal decided an issue within its competence . It was because these prerequisites were not complied with that the court refused to honor the awards, and not because of deferral per se. 269 unanimously decided William E. Arnold Company v. Corpnters District Council of Jacksonville and Vicinity, where it said that the Board's position in Collyer "harmonizes with Congress articulated concern that, `[f]inal adjustment by a method agreed upon by the parties is . . . the desirable method for settlement of grievance disputes arising over the application or in- terpretation of an existing collective-bargaining agreement.... " Obviously, the same court did not consider Gardner and Arnold inconsistent. Nor are they. We are dealing with two different statutes hav- ing different underlying purposes. The attempt of the concurring opinion to explain away Arnold upon the ground that it involved a jurisdictional dispute is unavailing. The discussion of the jurisdictional dis- pute question in the court opinion was in the form of a "furthermore" argument. The implication in Member Jenkins' concurrence that deferral to arbitration is not being directed in this case because the Respondent is a union is both inaccurate and unfair. In the following cases, tle ma- jority members who adhered to Collyer deferred complaints against respondent unions upon the basis of the Collyer doctrine: Columbia Typographical Union No. 101, Interna- tional Typographical Union of North America, AFL- CIO (The Washington Post Company), 207 NLRB 831 (1973); Columbia Typographical Union No. 101, Inter- national Typographical Union of North America, AFL- CIO (The Washington Post Company), 207 NLRB 841 (1973); Columbia Typographical Union No. 101, Inter- national Typographical Union of North America, AFL- CIO (Byron S. Adams Printing, Inc.), 207 NLRB 850 (1973); Newspaper Web Pressmen's Union No. 6, In- ternational Printing and Assistants Union of North America, AFl-CIO (The Washington Post Company), 207 NLRB 856 (1973); Baltimore Typographical Union No. 12, International Typographical Union, AFL-CIO (The A. S. Abell Company), 201 NLRB 120 (1973); The Associated Press, 199 NLRB 1110 (1972), petition for review denied 492 F.2d 662 (C.A. D.C., 1974); Houston Mailers Union No. 36, affiliated with International Mailers Union (Houston Chronicle Publishing Company), 199 NLRB 804 (1972); The Newspaper Guild of Brockton, AFL-CIO (Enterprise Publishing Company), 201 NLRB 793 (1973), petition for review denied 493 F.2d 1024 (C.A. 1, 1974); and Brotherhood of Teamsters & Auto Truck Drivers Local No. 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Na- tional Biscuit Company), 198 NLRB 552 (1972), peti- tion for review denied 479 F.2d 770 (C.A. 2, 1973). If the Collyer doctrine is more frequently applied where employers are respondents than where unions are re- spondents, the reason is that more complaints are 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filed against employers than against unions and such cases more frequently involve questions of contract interpretation. The difference between Collyer and this case is one of substance. Collyer involved a dispute over the terms and meaning of the existing contract between the union and the employer. The present dispute, on the other hand, relates to whether the parties lawfully bargained concerning the terms of a new agreement. The issue is not one concerning the meaning of a term in an existing contract, but whether a proposed term of a new agreement was a mandatory subject of bargaining and whether, assuming that it was not mandatory, the Union bargained to an impasse on the subject, thus violating Section 8(b)(3). The ques- tions presented are therefore not ones of contract in- terpretation, but of statutory obligations. They are legal questions concerning the National Labor Rela- tions Act which are within the special competence of the Board rather than of an arbitrator. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders the Respondent, The Columbus Printing Pressmen & Assistants' Union No. 252, subordinate to IP & GCU, Phoenix City, Alabama, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. MEMBER FANNING, concurring: For reasons set forth in my dissenting opinion in Mechanical Contractors Association of Newburgh, 202 NLRB 1 (1973), I agree with Members Jenkins, Ken- nedy, and Penello that the disputed interest arbitra- tion clause is a nonmandatory subject of bargaining and that therefore Respondent's insistence to the point of impasse upon its inclusion in a new contract violated Section 8(b)(3) of the Act. For the same rea- sons, I disagree with the dissenting opinion of Chair- man Murphy. MEMBER JENKINS, concurring: This case involves a contractual issue which arises from the fact that the Charging Party and the Re- spondent Union under the terms of their collective- bargaining agreement are obligated to refer any un- resolved disputes over contract provisions, including a terminal or contract renewal arbitration provision, to a joint standing committee, and, if necessary, to a tripartite board of arbitration, for a final and binding decision. This case also involves an alleged violation of Section 8(b)(3) of the Act which arises from the Respondent Union's insistence, to the point of im- passe, upon the inclusion of an interest arbitration clause (in the form of a terminal or contract renewal arbitration provision) in a collective-bargaining agreement being negotiated by the parties. We are called upon to decide whether we should defer to the interest arbitration clause in the parties' existing con- tract to resolve the parties' contractual dispute as to the inclusion of the same clause in the parties' new contract. If we do not defer to the parties' interest arbitration agreement, we must then decide whether the interest arbitration clause is a nonmandatory subject of bargaining about which the Respondent Union may not bargain to impasse. As to the deferral to arbitration issue, I note that Collyer Insulated Wire,2 which Members Kennedy and Penello rely on and apply here, stated emphati= cally that the parties to a collective-bargaining agree- ment which provides for arbitration of contract dis- putes must honor their contractual obligations. In Collyer, the majority refused to sanction the filing of an unfair labor practice complaint alleging that an employer had violated Section 8(a)(5) and (1) of the Act so as to invoke the jurisdiction of the National Labor Relations Board when the parties' collective- bargaining agreement provided for arbitration proce- dures to settle the dispute. The distinctions between the instant case and Collyer are that here a union is the respondent and an interest arbitration clause is involved, while in Collyer an employer was the re- spondent and a grievance arbitration clause was in- volved. Why Members Kennedy and Penello would defer to arbitration in Collyer-type cases but not here escapes me.' Be that as it may, I conclude, for the reasons set forth in my dissent in Collyer and related cases, that where, as here, an alleged unfair labor practice is at issue the Board must not defer to arbi- tration, but must, instead, decide the case in accor- dance with the mandate imposed on the Board by Congress in the National Labor Relation Act. In reaching this result, I find that the case of Alex- ander v. Gardner-Denver Co.° is more analogous and persuasive in the case at bar than the case of William E. Arnold v. Carpenters,' which is relied upon by ' 192 NLRB 837 (1971) 3 See also Brotherhood of Teamsters & Auto Truck Drivers Local No 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (National Biscuit Co ), 198 NLRB 552 (1972), in which Members Kennedy and Penello deferred to a bipartite panel composed of representa- tives of management and labor in equal numbers . It is unclear to me as to why my colleagues would defer to bipartite arbitration there and not defer to final binding tripartite arbitration in this case Cf. also Member Kennedy's and Member Penello's decisions in such cases as Terminal Trans- port Company, Inc., 185 NLRB 672 (1970), and McLean Trucking Company, 202 NLRB 710 (1973), reversed sub nom James Banyard v. N L.R.B., 505 F,2d 342 (C.A D C, 1974), in which they also deferred to bipartite arbitra- tion. °415 U.S. 36 (1974). s 417 U S. 12 (1974) COLUMBUS PRINTING PRESSMEN UNION NO. 252 Members Kennedy and Penello. As noted in Mem- ber Fanning's and my dissent in Southwestern Bell Telephone Company,6 Arnold hardly seems pertinent since it involved a Section 301 suit which arose from a jurisdictional dispute. Our Act makes deferral to an agreed-upon method of settlement mandatory in such cases. Accordingly, there can be no objection to deferral to arbitration in such a situation, and Mem- ber Fanning and I have so stated in our decisions in this area. Indeed, it is the mandatory deferral proce- dure which Congress specifically provided in Section 10(k) of the Act which helps to persuade us that de- ferral of other types of cases, not specifically provid- ed for in the Act, was not contemplated by Congress. This conclusion is reinforced by the observation of the Supreme Court in N.L.R.B. v. Strong Roofing & Insulating Co.,7 that the Board's authority to remedy unfair labor practices is not "affected by any other means of adjustment or prevention that has been or may be established by law or otherwise...." Plain- ly, the decisions of Members Kennedy and Penello in Collyer-type cases are directly at odds with the prin- ciple and purpose of the preemption doctrine to make the Act paramount and uniform in its applica- tion. Their principle of refusing to decide is, in my view, contrary to the decision of the Supreme Court in Amalgamated Association of Street, Electric Rail- way & Motor Coach Employees v. Lockridge.8 There, the Court held, in accordance with the Board's argu- ment, amicus curiae, that the Idaho Supreme Court was powerless to determine the illegality of an employee's discharge which arguably violated Sec- tion 8(a)(3) of the Act because it involved "conduct whose legality is governed by federal law, the appli- cation of which Congress committed to the Board, not courts." I The Court in Lockridge specifically re- jected the argument that the doctrine of preemption did not apply where contractual issues or issues in- volving interpretation of union rules were present, noting that "the Board routinely and frequently .. . inquire[s] into the proper construction" of such mate- rials.10 As Member Fanning and I stated in our dis- sent in Collyer," if the Supreme Court is unwilling to give to state courts jurisdiction to decide suits which "arguably" involve an unfair labor practice under the Act and at the same time involve a contract interpre- tation issue, this Board can hardly relinquish its par- amount jurisdiction to a private tribunal or to an ar- bitrator whose decision by definition has no '212 NLRB 396 (1974). 7393 U.S. 274 (1971). s 403 U.S. 274 (1971). 9 Lockridge, supra, 403 U S. at 290. 10 Lockridge, supra, 403 U.S. at 293. 11 Collyer, supra, 192 NLRB at 851. 271 precedential value, whose determination may not de- cide or touch upon the statutory violation, and whose award may not remedy present statutory violations and cannot control future conduct, however unlaw- ful the present conduct may have been. More analogous and persuasive than Arnold is also the case of Gardner-Denver, a Title VII case in which the Supreme Court held that there can be no deferral of statutory rights to an arbitral tribunal. The Court's reasons in reaching this result, which seem to me-fa- tal to the majority's position in Collyer-type cases, were that 12 (1) Congress intended statutory tribunals to exercise primary responsibility for enforcing statu- tory rights; (2) the arbitrator's task is to effectuate the intent of the parties rather than the statutory re- quirements; (3) the competence of arbitrators relates to the law of the shop rather than the law of the land; and (4) the factfinding process in arbitration falls short of factfinding in litigation and arbitrators need to give no reasons for their awards." In view of the Supreme Court's pronouncements in this area, I respectfully disagree with the opinions of the U. S. circuit courts of appeal cited by Members Kennedy and Penello, to the extent those decisions differ from the views expressed herein. In this regard, I note that the Second Circuit case, Nabisco, Inc.,14 predated Gardner-Denver. The statement of Members Kennedy and Penello that "not a single Court of Ap- peals" has endorsed my views or those of Member Fanning in this area is not quite accurate. In fact, in one of the District of Columbia Circuit cases relied upon by Members Kennedy and Penello, Banyard v. N.L.R.B.,15 Judges Wilkey and Wright, with Judge MacKinnon concurring, remanded to the Board a case which involved Section 502 of the Act and a joint grievance committee award to which Members Kennedy and Penello had deferred. In so doing, the court reviewed the three other District of Columbia Circuit Court opinions cited by Members Kennedy and Penello, but stated that "We concur in the dis- senting Board members' [Fanning and Jenkins] per- ception of the dispositive issue in this case, viz, `No contract provision or arbitration award can permit an employer to require his employees to violate state laws or to create safety hazards for themselves or others'." 16 In its decision, the court further stated that "We agree with the conclusion of the trial exam- iner : `In the instant case, it is patent that the issue raised by the allegations of the complaint, namely, 12 See a more complete exposition of Member Fanning's and my views concerning Arnold and Gardner-Denver in our opinion in Electronic Repro- duction Service Corporation, et al., 213 NLRB No. 110 (1974). 13 Gardner-Denver, supra, 415 U.S. at 58. 14 Nabisco, Inc v. N.L.R B, 479 F.2d 770 (C.A. 2, 1973) IS 505 F.2d 342 (C A D.C., 1974) 16 Banyard, supra, 505 F.2d at 347 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whether Banyard has been discharged by Respon- dent because of his concerted or union activity, is not one which falls within the special competence of an arbitrator, but is primarily one for resolution under the provisions of the Act which the Board has been mandated by Congress to enforce."' (Banyard, supra at 346.) In short, when presented with the implica- tions of Collyer the District of Columbia Circuit Court substantially adopted the view of the Collyer dissenters. My colleagues state that the distinction between Collyer and the present case is that the question is not one of contract interpretation but of statutory obligations, that is, "legal questions concerning the National Labor Relations Act which are within the special competence of the Board rather than of an arbitrator." This has been Member Fanning's and my constant objection to deferring discriminatory discharge cases arising under Section 8(a)(3), but un- til now my colleagues have uniformly considered this to be of no importance and have deferred 8(a)(3) cases to arbitration. Can we hope they will no longer do so? Concerning the issue of whether an interest arbi- tration clause is a permissive subject of bargaining, I note that in Mechanical Contractors Association of Newburgh," the Board, with Member Fanning dis- senting, viewed a clause which provided for the reso- lution of unresolved bargaining issues by an industri- al relations council not as an extension of arbitral decision making, but as an extension of the collec- tive-bargaining process, which had not yet been ex- hausted. Since a majority of the Board found that no impasse occurred in such circumstances, it was un- necessary to determine whether the industrial rela- tions council clause was a mandatory or a permissive subject of bargaining. Member Fanning, dissenting, was of the opinion that the industrial relations coun- cil clause involuntarily waived the union's right to negotiate and concluded that the clause was a per- missive subject of collective bargaining. Unlike the factual situation in Mechanical Contrac- tors, supra, the interest arbitration clause in the in- stant case refers unresolved disputes to a neutral or impartial arbitrator. Thus, this case involves not an extension of the process of collective bargaining, but rather a process of judicial or arbitral decision mak- ing. Since all of my colleagues agree that impasse has occurred with respect to the inclusion of the interest arbitration clause in the parties' collective-bargaining agreement, the issue in this case, unlike in Mechani- cal Contractors, is squarely presented as to whether 17 202 NLRB 1 (1973). an interest arbitration clause is a mandatory subject of bargaining. I agree with the majority of my colleagues that the interest arbitration clause herein is not a mandatory subject of bargaining and that by bargaining to im- passe concerning such clause the Respondent Union violated Section 8(b)(3) of the Act. Cases interpreting Section 8(d) of the Act make it clear that any con- tract provision which subverts the rights of the par- ties to negotiate to impasse and, if necessary, to re- solve impasse through a test of respective economic strength of the parties, must not be deemed a manda- tory subject of bargaining." The legislative history of Section 8(d) of the Act and cases relating to this section also make it clear that negotiations between employers and labor orga- nizations must be free of outside supervision or inter- ference.19 Since Congress, by Section 8(d) of the Act, has specifically denied the Board the right to partici- pate in the arena of actual negotiations, or to sit in judgment on the substantive provisions of a collec- tive-bargaining agreement, it must be concluded that the Act does not permit either party, in a case such as this one, the right to create an impasse over a con- tract provision giving such authority to an arbitrator. Based upon the foregoing, I find that deferral to the parties' arbitral process herein is inappropriate, and I further find that the Respondent Union unlaw- fully insisted to the point of impasse upon the inclu- sion in the parties' collective-bargaining agreement of an interest arbitration clause, a nonmandatory subject of bargaining. I therefore conclude that the Respondent Union thereby violated Section 8(b)(3) of the Act and that an appropriate remedial order should issue. CHAIRMAN MURPHY, dissenting: I am unable to agree with my colleagues that the Respondent Union violated Section 8(b)(3) of the Act by conditioning execution of a new contract upon the continued inclusion of an interest arbitra- tion clause. And this is so whether that clause be is See the discussion of such cases in the Decision of Administrative Law Judge Feldesman in Mechanical Contracting Association of Newburgh, su- pra. 19 See N L R. B. v. American National Insurance Company, 343 U.S. 395, 404 (1952); and N L R B v. Insurance Agents' International Union, AFL- CIO [Prudential Insurance Co.], 361 U.S 477, 487 (1960) See also H. K Porter Co., Inc, Disston Division -Danville Works v N L R. B., 397 U.S. 99, 103-104 ( 1970), in which the U.S. Supreme Court stated that the object of the National Labor Relations Act "was not to allow governmental regula- tion of the terms and conditions of employment, but rather to ensure that employers and their employees could work together to establish mutually satisfactory conditions. The basic theme of the Act was that through collec- tive bargaining the passions , arguments, and struggles of prior years would be channeled into constructive, open discussions, leading, it was hoped, to mutual agreement. But it was recognized from the beginning that agreement might in some cases be impossible , and it was never intended that the Gov- ernment would in such cases step in, become a party to the negotiations and impose its own views of a desirable settlement" COLUMBUS PRINTING PRESSMEN UNION NO. 252 deemed a mandatory or a nonmandatory subject of bargaining. The clause in dispute has been included in each contract between the parties since 1947, and since that time there have been no work stoppages by the employees covered thereunder. In the negotiation of the 1970-73 contract, the Employer sought to delete that provision, but it was retained in the new con- tract as the result of an arbitration decision by a neu- tral person pursuant to that very arbitration clause. The Employer again opposed its inclusion during the 1973 negotiations and the Respondent Union again insisted to impasse upon its inclusion but seeks sub- mission of the issue to arbitration as it did in 1970. All other provisions of the new contract have been agreed upon. It is this situation which is the subject of this case. The principal ground for finding a violation ap- pears to be that because the quid pro quo for the inter- est arbitration clause is the waiver of the employees' right to bring economic pressure against the Employ- er by strike action, and, because public policy frowns upon any undue interference with the right to strike, necessarily the interest arbitration clause itself is against public policy. But this syllogism is not valid. For public policy also favors voluntary resolution of disputes and the elimination of economic warfare which interferes with the free flow of commerce; the interference with the right to strike which is unlawful or against public policy is that which is imposed by one party or by the Government upon another party to a dispute, not a bilateral agreement upon mutual undertakings which result from the give and take of collective bargaining. Similarly, the freedom of col- lective bargaining from outside interference or super- vision refers to that imposed upon, not what is agreed to by, the parties.20 Therefore, even if the in- stant clause could not be insisted upon to impasse in initial bargaining, assuming arguendo that it is a non- mandatory subject,21 I see nothing improper in one party's seeking, by peaceful means, to require adher- ence by the other to the provisions which were volun- tarily and freely undertaken in the first instance (and here were similarly continued in effect for many years until 1970). I am well aware of the holding of the U. S. Su- preme Court in Allied Chemical and Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co., Chemical Division,22 that unilateral modification of a contract term relating to a nonmandatory sub- ject does not violate Section 8(a)(5). However, the 20 Our finding there is no violation would in no sense impose the disputed clause on the parties or pass upon the merits of including or excluding it. 21 However, for the reasons set forth later in this opinion , I am persuaded that this is a mandatory subject of bargaining. 22 404 U S 157 (1971). 273 Supreme Court specifically noted 23 that in that case there was no indication whether the collective-bar- gaining agreement provided for arbitration that would have been applicable to the dispute there in- volved and expressed no opinion on the relevance of such a provision to the question decided. In the in- stant case there is, indeed, a provision for arbitration, and hence it cannot be said that the holding of Chemical Workers v. Pittsburgh Plate Glass is clearly or necessarily dispositive and controlling of the issue now before us. Furthermore, a holding that because of that decision the Board must find a violation in the instant case leads to the anomalous situation of the Board's finding no violation where a party refus- es to adhere to an agreed-upon term of a contract and thereby disrupts (at least to some extent) the re- lationship between the parties,24 by not finding illegal the conduct of a party who seeks to secure adherence to an agreement for peaceful resolution by interest arbitration and thus to maintain the status quo. This is a strange situation, indeed, especially in light of the stated purposes and policies of the Act this Board administers. It has clearly been held that an interest arbitration clause is not unlawful 25 and the right to strike is not 27 At In 38, infra 24 See also United Paperworkers International Union, AFL-CIO, et al (Westab-Kalamazoo Division Mead Corporation), 216 NLRB No. 80 (1975), in which the panel majority (Member Kennedy dissenting) dismissed the complaint alleging violation of Sec 8(b)(3) by the union's insistence to im- passe upon continued bargaining re a pension plan on the historical multi- plant unit basis but stated that the employer's adamant insistence upon changing to single-plant units for bargaining as to pensions would not be violative of Sec. 8(a)(5) Similarly, in Newspaper Production Company, 205 NLRB 738 (1973), the Board majority (Member Fanning dissenting) found no violation of Sec. 8(a)(3) by the union's insistence to impasse upon the expansion of the contract unit by the addition of historically excluded indi- viduals, it was also found that the union 's strike to secure expansion of the unit was protected concerted activity. Neither of these decisions refers to the fact that at has long been held that once the contract unit has been estab- lished (whether by the Board or by agreement of the parties ) any change of definition constitutes a nonmandatory subject of bargaining (Charles J. Mor- ris, ed., "The Developing Labor Law," pp 426-428 (ABA, 1971), and cases cited therein), and both of these majority holdings constitute decisions that insistence to impasse upon a nonmandatory subject of bargaining is not violative of the Act. While I do not intend hereby to indicate my view as to the validity or invalidity of these decisions, I cite them for the interesting fact that three of my colleagues have so held at some time in the past. 25 Aikens v Abel, 373 F Supp. 425 (D C. Pa , 1974), in which the court rejected the contention that a labor organization violated its duty of fair representation by waiving the right to strike in return for an interest arbitra- tion clause without having submitted the matter to the members for prior approval . The court stated, in this connection (at 437). If the unspoken promise behind their thinking is that a union 's legally recognized right to strike is so important , so hard-won, that no one, not even the union's representative leadership nor even , presumably, the membership themselves , can give it up, this Court disagrees. In any system of self-government, in theory and in practice, even the most precious- rights may be waived , always assuming that the system's es- tablished procedures for making such a decision are followed. The emotion-laden term, right to strike, inevitably recalls the bloody and bitter historical struggle for parity that was waged by union mem- bers against the steel companies . No one, and especially no one with roots in the Pittsburgh area, belittles the importance of the right to Continued 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD immutable 26 In fact, I am somewhat puzzled by the emphasis placed 27 upon strike and lockout as essen- tial aspects of collective bargaining under the Act.28 I certainly agree that in appropriate circumstances they are legitimate and often necessary economic weapons, and it is true that the Supreme Court has on various occasions commented, in effect, that final resort to such weapons is "part and parcel of the system" of collective bargaining contemplated by the Act.29 But it is one thing to recognize that the strike and lockout are not forbidden, but something else again to imply that the Act regards them as the most desirable ways of resolving economic disputes.30 They are, as indicated, at best a last resort"' and one of the principal aims of the Act is to avoid, if possi- ble, recourse to economic warfare. As the court said in the language of Aikens v. Abel, quoted in footnote 25, supra, no one belittles the importance of the right to strike, but even the most precious rights may be waived in proper circumstances and "it is symbolic of the changes wrought by time that this dispute [was] being resolved by means of civilized debate in a court of law, rather than by recourse to the violence and recrimination which characterized labor rela- tions in the recent past." Similarly, the Respondent Union in this case seeks to resolve disputes by peace- ful means rather than by possibly explosive condi- tions. strike , brave men died to win it . No one discounts their sacrifice But it is symbolic of the changes wrought by time that this dispute is being resolved by means of civilized debate in a court of law, rather than by recourse to the violence and recrimination which characterized labor relations in the recent past And see Winston -Salem Printing Pressmen and Assistants' Union No 318 v Piedmont Publishing Company of Winston -Salem, 393 F 2d 221 (C.A 4. 1968), cited by the Administrative Law Judge as standing for enforceability of such a clause. 16 Aikens v. Abel, supra 27 Although only Member Jenkins discusses this aspect , the other mem- bers of the majority have subscribed to the same rationale by virtue of their adoption of the Administrative Law Judge's Decision, which in turn incor- porates the rationale of Administrative Law Judge Feldesman in Mechanical Contractors Association of Newburgh, 202 NLRB 1 (1973), especially the last seven paragraphs of the Administrative Law Judge's discussion in that case 281 note also that the effect of my colleagues ' holding is to inhibit, not enhance, the very right they purport to protect 29 E.g., N.L.R.B. v. Insurance Agents' International Union, AFL-CIO, 361 U S. 477, 489 (1960), American Ship Building Co v N L R B, 380 U .S. 300, 317 (1965). 30 No doubt, a strike or lockout could have a successful outcome and result in a mutually satisfactory , freely entered into agreement. But, unless we are to be highly unrealistic , we should also recognize that frequently such economic pressure results not in any return to meaningful collective bargaining but rather in the complete capitulation of one of the parties or perhaps on rarer occasions in an almost interminable state of economic warfare of no apparent benefit in either the short or long run to anyone and disruptive of the economy of the country. Consequently, the concept that strike and lockout are the only desirable pathway-at least after impasse- to meaningful free collective bargaining seems to me to be rather naive. Surely it is a wholly inadequate basis on which to conclude that the role of interest arbitration is to be rejected on the ground it would preclude such bargaining. 3 American Ship Building Co v N L R B, supra The Supreme Court has stated that the Act, through Section 8(d), is "designed to regulate modifi- cations [of contracts] . . . so as to facilitate agree- ment in place of economic warfare . . . [and] 'with- out interrupting the flow of commerce or the production of goods.' " 32 The Supreme Court has also recognized (albeit in a context of grievance, not interest, arbitration) the "preference of national la- bor policy for abritration as a substitute for tests of strength." 33 Significantly, Section 201 of the Act states the national policy as "settlement of issues .. . through collective bargaining . . . by making avail- able . . . governmental facilities for . . . voluntary arbitration to aid and encourage employers and the representatives of their employees to reach and main- tain agreements.... " (Emphasis supplied.) And Title II of the Act, of which Section 201 is a part, is far more concerned with disputes over contractual terms and conditions of employment than grievance matters, and thus interest arbitration, being one of the few types of agreements designed to deal with disputes over terms, surely falls within the language of Section 201. Clearly, then, there is no room for the view that the Act in some circumstances looks fabor- ably on economic conflict as so desirable a means of furthering the ends of collective bargaining that it overrides any attempts to pursue peaceful methods of resolutions or that interest arbitration where vol- untarily agreed to by the parties is contrary to public policy 34 It is implied, however, that interest arbitration somehow improperly restricts the bargaining authori- ty of the recognized bargaining agents by leaving 32 Chemical Workers v Pittsburgh Plate Glass Co, supra at 187. 33 E g . John Wiley & Sons v Livingston, 376 U.S 543, 459 (1961); United Steelworkers of America v. Warrior & Gulf Navigation Co, 363 U.S. 574, 578 (1960). 34 Winston -Salem Printing Pressmen v Piedmont Publishing Co, supra, Builders Association of Kansas City v Greater Kansas City Laborers, 326 F.2d 867 (C.A. 8), cert. denied 377 U S 917 (1964), Division No 892, Amalgamat- ed Association of Street, Electric Railway and Motor Coach Employees of America v . M. K & 0 Transit Lines, Inc., 210 F.Supp 351 (D.C. Okla, 1962), reversed on other grounds 319 F.2d 488 (C.A 10, 1963), cert . denied 375 U.S. 944 (1963), Seltzer & Co v. Livingston, 253 F Supp . 509 (D.C.N.Y. 1966). affd. 361 F.2d 218 (C.A. 2, 1966), Nashville Newspaper Printing Pressmen 's Union, Local 50 v Newspaper Printing Corporation, 88 LRRM 2219, 74 LC ¶10.279 (D.C. Tenn , 1974). These cases all hold that interest arbitration comes within the national policy favoring arbitration of labor- management disputes All reject the contrary rationale of Boston Printing Pressmen 's Union v Potter Press, 141 F.Supp 553 (D C Mass., 1956), affd. 241 F.2d 787 (C.A. 1, 1957), and Austin Mailers Union No. 136 v Newspa- pers, Inc, 226 F Supp. 600 (D.C. Tex., 1963), affd 329 F.2d 312 (C A. 5, 1964). on the grounds these cases are inconsistent with the Supreme Court's decisions emphasizing the national policy favoring arbitration of labor- management disputes See, e g, cases cited in fn 33, above. See also Blake Construction Company, Inc v Laborers ' International Union of North America, AFL-CIO, 511 F.2d 324 (C.A D.C., 1975), where the court refers to the fact the Supreme Court has "emphasized the importance of maintaining industrial stability and recognized the significant contribu- tion of arbitration to preservation of peaceful labor management relations" and "has stressed these values in the Steelworkers Trilogy, reiterating the wholesome federal policy promoting enforcement of dispute -settlement pro- cedures fashioned by the parties." (Blake, supra at 326-327 ) COLUMBUS PRINTING PRESSMEN UNION NO. 252 mandatory bargaining to arbitration and that it is basically at variance with the collective-bargaining policies of the Act. The rationale appears to be that interest arbitration, by precluding bargaining of the parties themselves as to the final resolution of disput- ed matters on which impasse has been reached, im- properly substitutes so-called quasi-legislative action by an impartial individual for arm's length dealings between the parties.35 But, as noted above, there is nothing inherently useful about this when it results from the voluntary agreement of the parties. The in- dividuals drafting such clauses surely are capable of adopting language which permits unilateral determi- nation on whether to retain the same provision in later contracts,36 and if the parties have agreed upon interest arbitration without qualification there is nothing inherently improper in seeking to secure adherence thereto. Nor am I impressed by the argu- ment that the parties may be "locked into" such an agreement. For I do not propose to rule on the need to continue such a clause in existence 37 or find that the failure to submit the matter to arbitration pur- suant thereto is itself violative of the Act.38 Rather I find only that the insistence to impasse upon inclu- sion of a clause providing for such submission is not unlawful. In any event, there is no reason to assume that every arbitrator will conclude that the interest arbitration provisions should be retained, or even that the same arbitrator will adopt the identical view each time the issue is raised; there are many reasons why an arbitrator would find merit in a contention opposing its continuation. All of the above discussion assumes that interest arbitration is a nonmandatory subject of bargaining. But as indicated previously, I would find that it is within the definition of a mandatory subject of bar- gaining, i.e., any issue which settles an aspect of the relationship between the employer and employees39 concerning wages, hours, working conditions, or other terms or conditions of employment. That an interest arbitration provision does so is beyond dis- pute. For by its very nature it provides a peaceful judicial-type procedure in place of economic warfare as a means of settling any such aspect of the employ- ment relationship upon which there may be dis- agreement. Its provision for the continuing effective- ness of established contract terms throughout the negotiation period for renewal thereof and the assur- ance of continued employment to workers and unin- terrupted production to the employer are the very essence of the bargaining relationship and the protec- tion of employer-employee interests. The fact that, as the Administrative Law Judge concluded, this provi- sion may have no immediately measurable impact upon the welfare of unit employees is irrelevant; this 275 is not and never has been a measure of whether a subject is one upon which the parties are compelled to bargain. Thus, a cost-of-living escalator clause protects employees against future economic contin- gencies which may never arise. Similarly, a pension agreement may not always provide unit employees with tangible benefits which they will surely realize. Yet no one today would agree that either a cost-of- living escalator provision or a pension plan is not a mandatory subject. What both of them provide the unit employees is a sense of security concerning in- come, and this is certainly equally true of the interest arbitration provision. Nor does a management rights clause relate to immediate and known matters which will surely arise, but this, too, is a mandatory subject. Thus, it seems to me that interest arbitration is un- ambiguously a term or condition of employment, being, as it is, a protection against interruption of future continued job security and earnings capacity and furthering the peaceful resolution of possible dis- putes over contract terms dealing specifically with wages, hours, and working conditions. In sum, I would find that interest arbitration is a mandatory subject upon which a party may insist to impasse. But even if it is not, I would find that Re- spondent Union did not violate Section 8(b)(3) by insisting that the terms of its latest contract be ad- hered to, and that resort to arbitration be had to de- termine whether to retain the clause in the new con- tract. It is my considered opinion that interest arbitration does not conflict with the policies of the Act where initially agreed to freely by the parties but that, rather, it is a method of resolution of disputes favored by the Act and furthers the basic statutory goal of industrial peace. I would dismiss the com- plaint in its entirety. 35 To the extent that the arbitration procedure provides for presentation of opposing viewpoints and a weighing of their merits, I prefer to view it as quasi-judicial rather than quasi-legislative. I find it unnecessary to consider or pass upon the applicability of Collyer Insulated Wire, 192 NLRB 837 (1971), to the facts of this case and hence do not hereby intend to indicate my views with respect to that decision. 36 See, e.g., Aikens v. Abel, supra, in which the parties agreed that either side was free to revert to the old approach if they found themselves dissatis- fied with any aspect of the Experimental Negotating Agreement. 37 Such a finding would exceed the Board's authority H K. Porter Com- pany, Company, Inc, Disston Division-Danville Works v. N L R.B., 397 U.S. 99(1970) 3 It is well settled that Congress did not intend every breach of a collec- tive-bargaining agreement to be, per se, an unfair labor practice See, e.g, N L R B v Los Amgeles-Yuma Freight Lines, 446 F.2d 210, 214 (C.A. 9, 1971) 39 Chemical Workers v Pittsburgh Plate Glass Co, supra at 178. 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE JERRY B. STONE, Administrative Law Judge: This pro- ceeding, under Section 10(b) of the National Labor Rela- tions Act, as amended, was heard pursuant to due notice on May 20, 1974, at Columbus, Georgia. The charge was filed on February 20, 1974. The com- plaint was issued on April 4, 1974. The issue presented is whether the Respondent Union violated Section 8(b)(3) of the Act by insisting (to a point of impasse) that a contract include an arbitration clause relating to the arbitration of future contract negotiation dispute issues-including a dis- pute as to whether said arbitration clause would be includ- ed in such contract. All parties were afforded full opportunity to participate in the proceeding, and all parties filed briefs which have been considered. Upon the entire record in the case and from my observa- tion of witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The facts are based on the pleadings and admissions therein. The R. W. Page Corporation, the Company, is, and has been at all times material herein, a corporation with an office and place of business located at Columbus, Georgia, where it is engaged in the printing and sale of two daily newspapers. The Company, during the calendar year of 1973, which period is representative of all times material herein, subscribed to the Associated Press, an interstate news service, and had a gross volume of business in excess of $200,000. The Company, also during the same period of time, purchased and received goods and services valued in excess of $50,000 directly from points located outside the State of Georgia. As conceded by the Respondent and based on the fore- going, it is concluded and found that the R. W. Page Cor- poration is, and has been at all times material herein, en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE RESPONDENT, THE LABOR ORGANIZATION INVOLVED The facts are based on the pleadings and admissions therein. The Columbus Printing Pressmen & Assistants' Union No. 252, Subordinate to IP & GCU, the Respon- dent, is, and has been at all times material herein , a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Preliminary Findings The facts are based on the pleadings and admissions therein. The Appropriate Bargaining Unit and History All journeymen, pressmen and apprentice (or assistants) pressmen employed in the pressroom of The R. W. Page Corporation, but excluding all other employees, all janitors and mechanical superintendents, office clericals, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining with- in the meaning of Section 9(b) of the Act. At all times material since on or about 1947, Respondent and the Company have been parties to successive, written collective-bargaining agreements covering the employees in the unit described above, the last of which had an expi- ration date of August 31, 1973.1 The parties have had in their collective-bargaining agree- ments, during the period of time from 1947 to August 31, 1973, an arbitration clause identical to the arbitration clause in issue in this proceeding. Such clause is as follows: It is agreed between the publisher and the Columbus Union that all disputes regarding a new contract and scale to become effective at the expiration of this con- tract, which cannot be settled by negotiations, shall be determined by arbitration as hereinafter provided in Article 16 hereof; and this contract shall remain in force until all disputes are settled by negotiation or arbitration, provided that the party requesting arbitra- tion take all necessary steps to have the arbitration board formed within thirty (30) days of the date of the request of either party in accordance with the provi- sions hereinafter provided. During the period of time, 1947 to date, there have been no work stoppages by the employees (of the R. W. Page Corporation) represented by the Respondent Union. With respect to the collective-bargaining agreement, re- ferred to above, expiring on August 31, 1973, the facts re- veal that the parties engaged in collective bargaining and agreed upon all terms of a contract excepting the inclusion or exclusion of the arbitration clause therein. Said dispute was referred to an arbitration board for determination pur- suant to the existing arbitration clause . By agreement, thereafter, the parties agreed that one named member of the Board could render the arbitration decision. Thereaf- ter, said arbitrator,2 on March 22, 1972, rendered his arbi- tration decision to the effect that the arbitration clause, as it had been in prior contracts, be in the contract which was effective from September 1, 1970, to August 31, 1973. In addition to the referred to arbitration clause (set forth in the September 1, 1970, to August 31, 1973, contract as art. One, sec. 2), the collective-bargaining agreement con- tained sections relating to grievances and arbitration and is attached hereto as "Appendix B." Some contracts may have been entered into at a date later than the expiration of the preceding contracts. If so, such contracts were agreed to be retroactive to the expiration date of the old contract 2 Said arbitrator was not a member of management or of the Union. Thus, said arbitration was by a neutral person COLUMBUS PRINTING PRESSMEN UNION NO. 252 277 B. Bargaining-1973 On June 27, 1973, the Respondent by letter , requested The R . W. Page Corporation to bargain with respect to the terms of a new collective-bargaining agreement to succeed the September 1, 1970-August 31, 1973 , agreement. The Respondent proposed the existing collective -bargaining agreement but with certain additional proposals or changes. The Respondent's proposal constituted a proposal that the existing arbitration clause (art. One, sec. 2) contin- ue to be in the new collective-bargaining agreement. The R. W. Page Corporation , by letter, on July 23 , 1973, sub- mitted to the Respondent counterproposals for a new con- tract and proposed elimination from the new contract of the existing arbitration clause (art. One, sec. 2). It may be said that The R . W. Page Corporation proposals used the existing contract as a basic proposal modified by proposed changes and the elimination of the arbitration clause. Thereafter the parties engaged in a number of collective- bargaining sessions . The positions of the parties were con- sistent with respect to the arbitration clause issue. The Em- ployer insisted that such clause not be in the contract to be agreed upon . The Respondent insisted that any contract agreed upon had to have such arbitration clause. Statements at such sessions (between July 23 and Octo- ber 29, 1973) by Respondent's representatives as to the fact that the arbitration clause had to be in any new contract, and as to why the Respondent needed such clause, are revealed by the following credited excerpts from Bruni's testimony. Q. What were some of their stated reasons for in- sisting that it remain? A. Gosh, they were numerous, but I can remember Mr. Morris saying that as long as I'm in the Pressroom working here that will never be removed from the con- tract. He even stated that you could not buy it out of the contract, we won't give it to you and we won't sell it to you, and at one time, he even used a figure of "you couldn't buy it for a million dollars." Now Mr. Larry Smith, on many occasions during these negotia- tions, said that it had to stay in, that it had been arbi- trated three years prior to that, it was in the contract and that the Union felt very strong that it remain in. Now, we even, at some point in the negotiations, which I would say probably in August- were to strike the paper, that they knew they could not win the strike-because of the small unit and that they had no other Unions to support them in a walk-out of any kind and that they needed this new contract arbi- tration in there to continue contracts with the R. W. Page Corporation. As of the end of an October 29, 1973, bargaining session, the parties were in disagreement as to a new contract as to (1) the inclusion or exclusion of the referred to arbitration clause, (2) the amount of money (apparently wages), and (3) the Union's request for an extra man concerning the color "hump." The Employer, at the end of the negotiating session on October 29, 1973, asked the Respondent Union to have a vote of the membership with respect to the Employer's proposals. Thereafter, on October 30, 1973 , the Respondent advised the Employer that the union membership had turned down the Employer's offer of October 29 , 1973, that the reasons were the lack of any new contract arbitration clause and the lack of more "manning" when excess color was on the color hump. Thereafter the parties held a negotiating session on No- vember 19, 1973. What occurred is revealed by the follow- ing stipulations excerpted from the record: MR. STYLES : Okay. General Counsel would offer to stipulate that a meeting was held between the parties on November 19, 1973, and that this meeting-the dis- cussion centered around these two issues which were the excess color on the color hump and the new con- tract arbitration clause , and as a result of this the Company agreed to add more money on the second and third year of the proposed contract in return for the Union backing off on the excess color man on the hump. MR. MCLELLAN: We so stipulate. JUDGE STONE: All right , Mr. Wolfe? MR. WOLFE : The Charging Party will so stipulate. JUDGE STONE : All right. Go ahead. MR. STYLES : As a result of this, on November 19, 1973 of this meeting, the Company again requested the Union to take this to a membership meeting to vote on whether they would accept this and that Respondent's representative, Smith, stated at this meeting that they would have a vote of their members on the Company offer, but that we personally could * not recommend approval of the new contract if a new A. Okay. Well, I can recall Mr. Smith saying that this by leaving new contract arbitration in the contract this is our guarantee of continuing contracts with the R. W. Page Corporation in Columbus, Georgia. I'm trying to recall any other remarks in this area. Q. Did he say that last one on more than one occa- sion? A. Oh, yes, it was repeated. contract arbitration clause was not included in it. MR. MCLELLAN : So stipulate. JUDGE STONE : How about you, Mr. Wolfe? MR. WOLFE : Charging Party will so stipulate. The parties further stipulated that the following occurred on November 21, 1973, as is revealed by a stipulation ex- cerpted from the record: MR. STYLES : Yes, sir. That on or about November „ * * 21, 1973, Respondent's representative, Red Morris, A. Well, the only other thing that was brought up at one time and probably at that time, was that the Union in Columbus was a small Union , that if they you have his real name, Johnson C., called Michael Bruni of the Charging Party, the Charging Party's rep- resentative, and advised in words to the effect, that if the Company would leave the new contract arbitra- 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion clause in the contract that the Union had voted to accept the Company's offer of November 19, 1973, and would like to have a meeting to finalize and then the Union would sign a new contract. On November 23, 1973, the Employer sent the following letter to the Respondent: November 23, 1973 Mr. Johnson C. Morris Secretary-Treasurer Columbus Printing Pressmen & Assistants' Union - Local 252 Post Office Box 572 Phenix City, Alabama 36867 Dear Mr. Morris: Regarding your telephone conversation with Mike Bruni of Wednesday, November 21, 1973, we want to make certain we have a complete under- standing what we have agreed upon in the new con- tract negotiations. The new contract will contain all the provisions of the contract which expired August 31 , 1973, ex- cept as follows: Article One, Section 1. The dates will be changed to September 1, 1973, to and inclusive of August 31, 1976. Article Three, Section 5, shall be changed as fol- lows: (a) ....assistant foreman shall be paid not less than fifty (50) cents per hour above the journeyman scale. (b) ....man (or Journeyman) in charge, when so engaged, shall be paid not less than fifty (50) cents per straight time hour, above the journeyman scale. (c) Journeymen : Effective September 1, 1973, shall be paid $4.55 per hour, day and $4.69 per hour night. Effective September 1, 1974, shall be paid $4.78 per hour, day and $4.92 per night . Effective September 1, 1975, shall be paid $5 .00 per hour, day and $5. 14 per hour night. Article Six, Section 17. (c), shall be changed to 10 years on January 1, 1974. Under Misc. Provisions and Additions to Crew. A new section will be added providing that one (1) additional journeyman shall be added to the crew when both folders are in operation. A new clause will be added providing that neither the company nor the union shall discriminate in em- ployment because of race, religion, color, sex, age or nation origin. It is understood that the union insists, as a condi- tion for entering into a new contract, that it must contain a "new contract arbitration clause" equiva- lent to that contained in Article One, Section 2, of the contract which expired August 31 , 1973, and that the company is unwilling to accept the inclu- sion of such a clause. If this is in accordance with your understanding, please so indicate by signing and returning the en- closed copy of this letter. Yours very truly, Glenn Vaughn General Manager bd The above correctly sets forth our understanding. November , 1973. Johnson C. Morris Secretary-Treasurer On November 24, 1973, the Respondent sent the follow- ing letter to the Employer: November 24, 1973 Mr. Glenn Vaughn General Manager Ledger-Enquirer P. O. Box 711 Columbus, Georgia 31902 Dear Mr. Vaughn: This will acknowledge receipt of your letter of No- vember 23 , 1973 regarding proposed changes in the agreement between The R. W. Page Corporation and Columbus Printing Pressmen & Assistants' Union, Local 252. Local 252 does not approve the proposed changes unless the Company agrees the "New contract arbi- tration clause" shall remain in the contract. With best wishes and kind regards, I am Very truly /s/ Johnson C. Manir Secretary-Treasurer c/c M. A. Bruni On December 11, 1973, the Employer sent a letter to the Respondent. In said letter, the Employer set forth its con- tention that the parties were in agreement on all terms ex- cepting the "arbitration" clause, that such "arbitration" clause concerned a nonmandatory and permissive subject of bargaining, that the Respondent could not persist in de- manding such a clause as an ultimatum, that the law would require the Respondent to withdraw its proposal for a "new contract arbitration clause" and execute the contract to which the parties have otherwise agreed . The Employer's letter indicated that the agreement of the parties had been executed and dated by the Employer, and that it was sub- mitting the same to the Union for execution. C. Events of February 1974 On February 13, 1974, the Respondent Union, by letter, requested a meeting of the joint standing committee for the purpose of moving toward a settlement (as to a new con- tract to be agreed upon). On February 20, 1974, the Employer filed the unfair la- bor practice charges involved in this case. On February 22, 1974, the Union, by Larry Smith, sent the Employer a letter . The Employer's February 26, 1974, COLUMBUS PRINTING PRESSMEN UNION NO. 252 reply indicates in effect that the letter was similar in nature to the February 13, 1974, letter. On February 26, 1974, the Employer, by letter, advised the Respondent (in reply to a letter from the Respondent, dated February 22, 1974, apparently in the same vein as the February 13, 1974, letter) that the Employer's position was that there was no basis to form or convene the point standing committee, that the parties had a binding agree- ment which the Union refused to recognize and execute, that the terminal arbitration language was inoperative, and that the Employer would not release the Union from its agreement and begin anew. D. Events of March 1974 On March 5, 1974, the Respondent Union, by letter to the Employer, requested that the dispute as to a new con- tract be referred to arbitration as provided in article sixteen of the agreement. In said letter, the Respondent Union named its designated representatives for the arbitration panel. Apparently on March 2, 1974, the Respondent Union mailed a list of four named persons to be considered as arbitrators for such proposed arbitration. Thereafter, on March 10, 1974, Respondent Union, by letter to the Em- ployer, referred to such prior communication, reiterated the names of such persons proposed for consideration as arbitrators, and added one more person to such list. On March 10, 1974, Respondent Union, by letter to the Em- ployer, set forth in effect its contractual provision conten- tions for arbitration consideration. On March 19, 1974, the Employer, by letter to the Re- spondent Union, set forth its contention that the parties had reached an agreement and that there was nothing to arbitrate, that the only dispute concerned article One, sec- tion 2 of the old contract, that such provision was illegal, unenforceable, inappropriate, and inoperative under con- trolling law. In said letter, the Employer described the Union's position in the Union's letter of March 10, 1974, in effect as being that all agreements were null and void and that either party was free to present to the arbitrator any proposed contract language it deemed desirable and appro- priate. E. Impasse In summary, considering all of the foregoing, I conclude and find that the Respondent insisted to the point of im- passe (with such impasse commencing on November 19, 1973), that the Company agree to include in the collective- bargaining agreement (being negotiated for) a clause as follows: It is agreed between the publisher and the Columbus Union that all disputes regarding a new contract and scale to become effective at the expiration of this con- tract, which cannot be settled by negotiations, shall be determined by arbitration as hereinafter provided in Article 16 hereof; and this contract shall remain in force until all disputes are settled by negotiation or arbitration, provided that the party requesting arbitra- 279 tion take all necessary steps to have the arbitration board formed within thirty (30) days of the date of the request of either party in accordance with the provi- sions hereinafter provided. Summarized, such clause provided that the parties would arbitrate any dispute regarding a new contract (such con- tract being the contract to be negotiated for after the expi- ration of the contract currently being negotiated for) which could not be settled by negotiation. By insisting upon such clause, the Respondent in effect was insisting that the Em- ployer agree that a future contract be arrived at by negotia- tion if possible, but if not, by arbitration, and that the question of the inclusion of an arbitration clause in such future contract be itself a possible subject of such arbitra- tion. F. Contentions The General Counsel and the Charging Party contend that the insistence by the Respondent, to a point of im- passe, for the inclusion of the arbitration clause, described above, constituted conduct violative of Section 8(b)(3) of the Act because such clause constituted a nonmandatory subject of bargaining. The Respondent contends that there is no precedence for determining that such clause is a nonmandatory subject of bargaining, that the General Counsel committed error by not deferring this case to arbitration, that the Board should honor a 1972 arbitration award whereby an identi- cal clause was arbitrated into the expired 1970=73 contract, that Respondent did not insist upon said clause as a condi- tion of continuing bargaining, but was merely insisting upon arbitration of such clause as a matter of contract right. G. Conclusions I. The arbitration clause involved in this proceeding, and set out in detail above, does not come within the classi- fication of a mandatory subject of bargaining. It does not pertain to setting terms of wages, hours, or other condi- tions of employment in the contract being negotiated. It does not vitally affect the terms of wages, hours, or other conditions of employment in the contract being negotiated. Rather, it injects into the negotiations for a current con- tract matter which does not concern itself with the terms and conditions of employment of the employees during the period of such contract. Such procedure changes the meth- od for arriving at contract terms, after a dispute in collec- tive bargaining, from one of collective bargaining to one of arbitration. As a result, arbitrated terms of a contract would not constitute a mutual agreement of such terms but a compelled arbitrated requirement. Section 8(d) of the Act defines collective bargaining as follows: "For the purposes of this section, to bargain col- lectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employ- ment, or the negotiation of an agreement or any question 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession The Supreme Court of the United States essentially sum- marized the guidelines for the determination of mandatory or nonmandatory subjects of bargaining in Chemical Workers v. Pittsburgh Glass, 404 U.S. 157, 178, 179. Thus the Supreme Court set forth: Section 8(d) of the Act, of course, does not immutably fix a list of subjects for mandatory bargaining. See, e.g., Fibreboard Corp. v. N.L.R.B., supra, at 220-221 (Steward, J., Concurring); Richfield Oil Corp. v. N.L.R.B., 97 U.S. app. D. C. 383, 389-390, 231 F.2d 717, 723-724 (1956). But it does establish a limitation against which proposed topics must be measured. In general terms, the limitation includes only issues that settle an aspect of the relationship between the em- ployer and employees. See, e.g., N.L.R.B. v. Borg- Warner Corp., 356 U.S. 342 (1958). Although normally matters involving individuals outside the employment relationship do not fall within that category, they are not wholly excluded. In Teamsters Union v. Oliver, 358 U.S. 285 (1959), for example, an agreement had been negotiated in the trucking industry, establishing a minimum rental that carriers would pay to truck own- ers who drove their own vehicles in the carriers' ser- vice in place of the latter's employees. Without de- termining whether the owner-drivers were themselves "employees," we held that the minimum rental was a mandatory subject of bargaining, and hence immune from state antitrust laws, because the term "was integ- ral to the establishment of a stable wage structure for clearly covered employee-drivers." United States v. Drum, 368 U.S. 370, 382-383, n. 26 (1962).18 Similarly, in Fibreboard Corp. v. N.L.R.B., supra, at 215, we held that "the type of `contracting out' in- volved in this case-the replacement of employees in the existing bargaining unit with those of an indepen- dent contractor to do the saame work under similar conditions of employment-is a statutory subject of collective bargaining...." As we said there, id., at 213, "the work of the employees in the bargaining unit was let out piecemeal in Oliver, whereas here the work of the entire unit has been contracted out." "Specifically, we noted in Oliver, 358 U.S., at 294: "[The collec- tive-bargammg agreement constitutes] . . . a direct frontal attack upon a problem thought to threaten the maintenance of the basic wage structure established by the contract The inadequacy of a rental which means that the owner makes up his excess costs from his driver's wages not only clearly bears a close relation to labor's efforts to improve working conditions but is in fact of vital concern to the camer's employed drivers; an inadequate rental might mean the pro- gressive curtailment of jobs through withdrawal of more and more camer-owned vehicles from service." I have found no Board or court cases holding that "in- terest-arbitration," 3 the type of clause involved in the is- Relating to arbitration clauses providing in effect that at the termination of the existing contract the parties will abritrate the terms of a new contract sues herein, is a mandatory subject of bargaining. There are Board and court cases which hold in effect that "griev- ance-arbitration" is a mandatory subject of bargaining. "Grievance-arbitration" and "interest-arbitration" may be said to be similar to the extent that both have the terminol- ogy of arbitration therein and both relate to the arbitration of disputes. Unlike "interest-arbitration," grievance-arbi- tration, of the type found to be a mandatory subject, re- lates to the arbitration of disputes concerning terms and conditions of employment under an existing contract. The arbitration is essentially a procedure to determine who is right or wrong in their interpretation of the existing con- tract. The "grievance-arbitration" clause, providing a means for resolution of disputes in areas defined, and therefore narrowed, by the contract, gives realistic meaning to rights and responsibilities. Similar to a coat of paint on a house, the addition of color to a liquid, the "grievance- arbitration" clause is an integral part of the terms and con- ditions of employment of the contract. It is thus a manda- tory subject of bargaining within the guidelines set forth by the Supreme Court. On the other hand, as set forth above, "interest-arbitra- tion" clauses of the type in issue in this case do not regulate the terms and conditions of employment of the employees in the contract being negotiated, do not vitally affect such terms and conditions of employment, and are not an integ- ral part of such terms and conditions of employment. "[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 mandato- ry bargaining." Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203 (1964). In the instant case, the evi- dence reveals that the International Union, of which the Respondent is a constituent part, has had contracts with various employees in the same industry as the Employer herein for many years .4 and that such contracts have con- tained clauses similar to the arbitration (interest) clause involved herein. It should be noted, however, that the pres- ence in a collective-bargaining contract of a "permissive" subject of bargaining does not transform such subject into a "mandatory subject of bargaining." Chemical Workers v. Pittsburgh Glass, 404 U.S. 157, 187. Thus, the evaluation of industrial practice with respect to its meaning as to wheth- er a subject of bargaining is mandatory or not appears to relate to issues such as practice of "subcontracting" and to such matter as vitally affects or constitutes an integral part of terms and conditions of employees.5 In sum, I am not persuaded that the industrial practice of having similar clauses adds such meaning with respect to the terms and conditions of employment of employees as to make a similar clause itself a term and condition of employment. Rather, such (interest) arbitration clause con- stitutes at most a "permissive" subject of bargaining which does not become a "mandatory" subject of bargaining.6 Administrative Law Judge Feldesman, in his decision in Mechanical Contractors Association of Newburg, set forth an if such terms are not reached by negotiation ° These facts are not in dispute and are so found 'See Local 24, Teamsters Union v. Oliver, 358 U.S. 283; Fibreboard Paper Products Corp v. N L.R B, 379 U.S. 203 (1964). 6 Chemical Workers v. Pittsburgh Plate Glass, 404 U S. 157, 187 COLUMBUS PRINTING PRESSMEN UNION NO. 252 excellent discussion 7 of the history of collective bargain- ing, of arbitration, and of the problem related to having collective bargaining without resort to economic force without having governmental compelled agreements. Ad- ministrative Law Judge Feldesman concluded in effect that an "interest-arbitration" clause of the type involved herein was a nonmandatory subject of bargaining. Board Member Fanning's dissenting opinion revealed a similar conclusion. In effect Administrative Law Judge Feldesman and Board Member Fanning viewed the facts of the case as revealing a clause which provided for arbitration of the contract terms for a new contract, and that a clause which provided for arbitration of the contract terms to arrive at a new contract constituted a nonmandatory subject of bargain- ing. I agree with Administrative Law Judge Feldesman and Board Member Fanning that a clause providing for the arbitration of the contract terms to arrive at a new contract is a nonmandatory subject of bargaining, and I adopt by reference their reasoning thereto. I have found nothing in the congressional history relat- ing to Federal arbitration statutes or the decisional law of the United States Supreme Court to reveal an intent that arbitration clauses, relating to arbitrating terms to be in a new contract, be a mandatory subject of bargaining. In this respect, I note that the United States Supreme Court in Textile Workers Union v. Lincoln Mills of Ala., 77 S. Ct. 912, 915, set forth, in a footnote, references to con- gressional reports relating to the definition of "collective bargaining" and to the legislation leading to the enactment of Section 301 of the Act. The house report relating thereto set forth "Most agreements provide procedures for settling grievances, generally including some form of arbitration as the last step. Consequently, this clause will operate in most cases, except those involving the negotiation of new con- tracts." There is, however, a conflict between circuits as to whether agreements to arbitrate the terms of a new con- tract into such new contract can be enforceable in the courts under Section 301 of the Labor- Management Rela- tions Act, 1947. As an example, the Fifth Circuit Court of Appeals decision, in Austin Mailers Union No. 136 v. News- papers, Inc., 329 F.2d 312 (1964), stands for a denial of enforcement of such a clause, whereas the Fourth Circuit Court of Appeals decision in Winston-Salem Printing Press- men v. Piedmont Publishing Co., 393 F.2d 221 (1968), stands for enforceability of such a clause. The guidelines for Court action relating to arbitration are revealed in summary form as (1) in United Steelworkers v. American Mfg. Co., 363 U.S. 564, 568-The function of the court is limited "to ascertaining whether the party seek- ing arbitration is making a claim which on its face is gov- 7 See such discussion reported in Mechanical Contractors Association of Newburg, 202 NLRB 1 (1973). Although the Board reversed the Administra- tive Law Judge's findings and recommendations in such case , I note that the Board majority did not find it necessary to determine whether such clause involved therein constituted a mandatory subject of bargaining or not since the Board viewed the Industrial Relations Council not as a neutral arbitra- tion panel but as an extension (arm) of collective bargaining with equal representatives from both sides. Board Member Fanning dissented and agreed with the Administrative Law Judge that such Industrial Relations Council clause was a nonmandatory subject of bargaining. 281 erred by the contract;" (2) in United Steelworkers v. War- rior & Gulf Navigation Co., 363 U.S. 574-doubts as to the coverage of the arbitration clause should be resolved in favor of arbitration; and (3) in United Steelworkers v. En- terprise Wheel & Car Corp., 363 U.S. 593-an arbitrator's award must be enforced by the courts even if the court's interpretation of the contract would differ from the arbitra- tor; and (4) as indicated in Carey v. Westinghouse Electric Corporation, 375 U.S. 261, 270, 271, 272, in the area of the Board's exclusive jurisdiction (unfair labor practice deter- mination) any conflicting arbitration award must yield to the Board's valid determination in fact, "(t)he superior au- thority of the Board may be invoked at any time." Although the general principles set forth above clearly establish that the interest-arbitration clause involved in this proceeding is a nonmandatory subject of bargaining, cer- tain specifics in the clause also so clearly reveal to the same effect. It appears fundamental that the exclusive bargaining representative and the employer have respective rights and obligations endowed upon them by the statute and Sec- tions 8(a)(5), 8(b)(3), 8(d), and 9 thereof. Such rights and obligations do not constitute terms and conditions of em- ployment of employees, do not vitally affect the meaning of such terms, and are not a part of the integral structure of such terms. Board and court law have consistently found that insistance to a point of impasse in derogation of such status is violative of the bargaining obligation of the party so insisting. Section 8(b)(1)(B) relating to the question of restraint or coercion of an employer as to the selection of his bargaining representative appears to be a legislative en- actment of the principle applied as a matter of case law interpretation of the statute with respect to the exclusive collective-bargaining representative. Within' the meaning of Borg-Warner,8 the Union's insistence of a proposal which in effect limited the employer's bargaining represen- tative in bargaining, when carried to a point of impasse, clearly involved a nonmandatory item of bargaining. In sum, I conclude and find that the interest-arbitration clause involved in this proceeding constituted a nonman- datory subject of bargaining.' 2. Although I am not persuaded that the question of "waiver" is a relevant issue in this proceeding, I am per- suaded that in fact there has been no "waiver" of the Employer's right with respect to the issues in this case. The "interest-arbitration" clause, identical to the clause in issue herein, was arbitrated into the 1970-73 contract over the opposition of the Employer. Under such circum- s N.L R B v Borg-Warner Corp., 356 U.S. 342 (1958) 9 Even if the interest-arbitration clause involved herein were limited to the arbitration of mandatory subjects of bargaining for inclusion in a future contract, such clause would be a nonmandatory subject of bargaining with- in the meaning of Borg-Warner. The Employer herein, and Administrative Law Judge Feldesman in the Mechanical Contractors case advert to the possible perpetuity problem that exists when such interest-arbitration clause provides for the arbitration itself of whether an arbitration clause would be included in such contract term Such provision itself is also clearly in the realm of a nonmandatory subject of bargaining. It is not necessary to de- termine in this proceeding whether or not such provision , providing for arbitration of whether an arbitration clause should be included , is a permis- sive or nonpermissive subject of bargaining As set forth later herein, in and of itself such a provision does not constitute a waiver of the bargaining rights of the parties 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stances, said clause does not reveal a clear and unequivocal waiver of the Employer's rights. 3. The Respondent contends that the Board should "de- fer" to the arbitration award made in 1972 wherein the "interest-arbitration" clause in the 1970-73 contract was arbitrated into said contract. It is sufficient to say that the facts relating to such arbi- tration reveal that the arbitrator did not consider the ques- tion of "mandatory" or "nonmandatory" subject of bar- gaining, did not consider the question of unfair labor practices, and did not consider the issue within the mean- ing of Section 8(a)(5) or 8(b)(3) of the Act.10 Under such circumstances, it is not Board policy to honor such awards in an unfair labor practice proceeding." 3. The Respondent contends that the Regional Director committed error by issuing the complaint in this proceed- ing and by not deferring this matter to arbitration. Since the General Counsel (by the Regional Director) has the exclusive authority and discretion in the issuance of com- plaints, it is settled Board policy not to review such acts, especially if there is no evidence of arbitrary and capri- cious conduct. It is clear that the issues presented reveal an absence of arbitrary or capricious conduct in the issuance of the instant complaint. Although the Respondent did not so phrase his conten- tion, I think it would be supertechnical not to consider his contention as a contention that the Board should defer this matter to arbitration. The issue in this case is clearly an unfair labor practice issue and not an issue essentially involving the interpreta- tion of an existing contract. Although contractual terms are involved, such terms are only involved as part of the evidence to be considered in determining the unfair labor practice issue.12 One of the major unfair labor practice is- sues, that of impasse, must be determined by the Board. 5. The Respondent contends that it did not insist that the arbitration interest clause be included in the contract as a condition of continuing bargaining, but was merely in- sisting upon its right to invoke arbitration as to unresolved issues. Essentially, the facts as found are contrary to Respondent's contentions. The facts as found reveal that the Respondent did insist upon the interest-arbitration clause for inclusion in the contract, to a point of impasse. The facts reveal that after such impasse, the Respondent did insist for arbitration of the dispute as to such unre- solved issue (the inclusion of the interest-arbitration clause in the contract). H. Final Conclusion In sum, from all the foregoing, I conclude and find that Respondent insisted, to the point of impasse, for the inclu- sion of a provision, a nonmandatory subject of bargaining, in the contract. By such conduct, the Respondent has vio- lated Section 8(b)(3) of the Act.13 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Employer's opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent violated Section 8(b)(3) of the Act by insisting on a nonmandatory contract provision to which the Employer objected, it will be recom- mended that the Respondent be ordered to cease and de- sist from such conduct and take certain affirmative action in order to effectuate the policies of the Act. Since the Respondent has violated Section 8(b)(3) of the Act by insisting to a point of impasse for the inclusion in a contract of a nonmandatory subject of bargaining, since the obligation to bargain continues after impasse, the fur- ther insistance that the "nonmandatory" subject of bar- gaining be arbitrated is in effect a continuation of the same violative conduct. It will therefore be recommended that the Respondent desist from such insistance for arbitration of the nonmandatory subject of bargaining. I decline to recommend General Counsel's requested "remedy" that the Respondent be required to sign the "agreed" contract. The overall facts reveal that the Respondent's bargaining position and agreements con- templated the inclusion of the "arbitration" clause which was never agreed to. The Respondent's clear position as to the "money items" and "manning of the color hump" was agreement thereto if the arbitration clause proposed by the Union were agreed to. It is clear that the parties have not in fact agreed to the total contract terms. A remedy requir- ing the Respondent to sign a contract not completely agreed to is therefore inappropriate. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The R. W. Page Corporation is an Employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Columbus Printing Pressmen & Assistants' Union No. 252, Subordinate To IP & GCU, the Respon- dent, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent is the statutory representative of the 13 N L R B v Borg-Warner Corp., 356 U S 342 (1958). Cf. Mechanical 10 It is clear that the arbitration award in 1972 would have only persuasive Contractors Association of Newburg, 202 NLRB 1 (1973), the dissenting opin- value at the most with respect to the issues in this proceeding It involved a ion of Board Member Fanning and the decision of Administrative Law 1972 dispute and not the instant dispute. Judge Feldesman Board Member Fanning and Administrative Law Judge 1 Trygon Electronics, 199 NLRB 404 (1972). Feldesman viewed the facts therein essentially as I have found the facts 12 Mechanical Contractors Association of Newburg, 202 NLRB 1 (1973) herein. COLUMBUS PRINTING PRESSMEN UNION NO. 252 283 R. W. Page Corporation employees in the appropriate col- lective-bargaining unit described as all journeymen, press- men and apprentice (or assistants) pressmen employed in the pressroom of the R. W. Page Corporation, but exclud- ing all other employees, all janitors and mechanical super- intendents, office clericals, guards and supervisors as de- fined in the Act. 4. By insisting to the point of impasse, as a condition of a new collective-bargaining agreement with the Employer, on the continuation of the arbitration clause (art. One, sec. 2, of the 1970-73 contract), a provision which requires ar- bitration of new contract terms including said clause itself and which consequently is not a mandatory subject of bar- gaining, the Respondent has since November 19, 1973, en- gaged in unfair labor practices within the meaning of Sec- tion 8(b)(3) of the Act.10 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) 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, I hereby issue the following recommended: ORDER 15 Respondent, The Columbus Printing Pressmen & Assis- tants' Union No. 252, Subordinate To IP & GCU, its offi- cers, agents, and representatives, shall: 1. Cease and desist from: (a) Refusing to bargain with the Employer, with respect to the appropriate bargaining unit described below, by in- sisting and demanding that the Employer agree as a condi- tion of any collective-bargaining contract on the inclusion therein of a provision that the Employer arbitrate terms for inclusion in a new contract, including the question of the same arbitration provision. The appropriate collective-bargaining unit for which the Respondent is the statutory exclusive collective-bargaining representative is: All journeymen, pressmen and apprentice (or assis- tants) pressmen employed in the pressroom of The R. W. Page Corporation, but excluding all other em- ployees, all janitors and mechanical superintendents, office clericals, guards and supervisors as defined in the Act. (b) In any like or related manner refusing to bargain collectively with the Employer by insisting upon the inclu- sion in any collective-bargaining agreement of any clause or other proposal not involving wages, hours, or other terms and conditions of employment. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Bargain with the Employer concerning wages, hours, and other terms and conditions of employment of the em- ployees in the appropriate collective-bargaining unit de- scribed above. (b) Notify The R. W. Page Corporation, in writing, that the Respondent will not insist that the Employer agree to arbitrate new contract terms for inclusion in a contract as a condition of entering into a collective-bargaining contract with the Employer. (c) Post at Respondent's offices and meeting halls, and all places where notices to members are customarily post- ed, copies of the attached notice marked "Appendix A." 16 Copies of said notice on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's representatives, shall be posted by it immedi- ately upon receipt thereof, and be maintained by Respon- dent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (d) Sign and mail sufficient copies of said notice to the aforesaid Regional Director for forwarding to The R. W. Page Corporation for information and, if they are willing, for posting by them in all locations where notices to em- ployees are customarily posted. (e) Notify the Regional Director for Region 10, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 14 The complaint alleged that such conduct has occurred since July 13, 1973. Bruin, an employee representative, testified to the effect that such conduct occurred after the Company's written proposals (by letter dated July 23, 1973) and fixed the initial timing as of July 13, 1973 Under such circumstances, since the facts clearly reveal violative conduct as of Novem- ber 19. 1973, and since the remedy will not be affected otherwise, I make the conclusion of law as indicated 15 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 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 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX A NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL bargain with The R. W. Page Corporation concerning wages, hours, and other terms and condi- tions of employment for the employees in the appro- priate collective-bargaining unit set out herewith: All journeymen, pressmen and apprentice (or as- sistants) pressmen employed in the pressroom of The R. W. Page Corporation, but excluding all other employees, all janitors and mechanical super- intendents, office clericals, guards and supervisors as defined in the Act. WE WILL NOT refuse to bargain with The R. W. Page Corporation with respect to the appropriate collective- bargaining unit described above, by insisting and de- manding that The R. W. Page Corporation (1) agree as a condition of any collective-bargaining contract on 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the inclusion therein of a provision that The R. W. Page Corporation will arbitrate terms for a new con- tract (for inclusion in a future contract), including the question of the same arbitration provision, or (2) that The R. W. Page Corporation agree to arbitrate the terms of a new contract for inclusion in such new con- tract as a condition of entering into a collective-bar- gaining contract with The R. W. Page Corporation. WE WILL NOT in any like or related manner refuse to bargain with The R. W. Page Corporation by insisting upon the inclusion in any collective bargaining agree- ment of any clause or other proposal not involving wages, hours, and other terms and conditions of em- ployment. THE COLUMBUS PRINTING PRESSMEN & ASSISTANTS' UNION No. 252, SUBORDINATE To IP & GCU APPENDIX B ARTICLE FOURTEEN No Strike, No Lock-Out Section 80. During the three year term of this agreement, and any extension or renewal of the same, the Publisher shall not institute or engage in any lock-out of the employ- ees covered hereby or of the Union; and Columbus Union and the employees covered hereby, acting individually or in concert, shall not institute or engage in any strike, walk- out, work-stoppage, slow-down or boycott, or quit in suffi- cient numbers to hamper or interfere with prompt and reg- ular publication. And no employee or employees covered hereby shall aid or encourage directly or indirectly such practices against the Publisher. Section 81. In the event a spontaneous strike, or other situation named in Section 80 or this Article, not caused, directed or sanctioned by Columbus Union, occurs during the time this agreement is in force or effect, Columbus Union shall not be responsible in damages to the Publisher therefor, provided Columbus Union, with reasonable promptness, disavows the strike or other action and there- after, in good faith, does all in its power to end the situa- tion and to enable the Publisher to resume early publica- tion of said newspapers. ARTICLE FIFTEEN Disputes Section 82. In the event a difference arises between the Columbus Union or any employee covered hereby and the Publisher, all work, all working conditions, the scale of wages and the hours of work, prevailing prior to the time said dispute arose, shall continue without interruption until said difference or dispute is adjusted between all parties concerned or a final decision binding upon all parties is made by arbitration as herein provided (which agreed ad- justment or final decision may or may not be retroactive to the date the difference occurred). ARTICLE SIXTEEN Grievances and Joint Standing Committee Section 83. Should any difference or dispute concerning the meaning, interpretation, violation or application of this Contract, arise between the Columbus Union or any em- ployee covered hereby, and the Publisher, and the same is not promptly adjusted to the satisfaction of all concerned, the same shall be immediately referred in writing to a Joint Standing Committee. Section 84. A Joint Standing Committee of four (4) members shall be appointed. Two (2) members of said Committee shall be named by the Publisher and two (2) members thereof shall be named by the Union. In case of a vacancy on the said Joint Standing Committee from any cause, said vacancy shall be filled immediately by the ap- pointment of a new member by a party in whose represen- tation on the Joint Standing Committee the vacancy oc- curs. Section 85. Such Joint Standing Committee shall meet as promptly as practicable but within fifteen (15) days after such referral and shall proceed forthwith to decide such difference or dispute. The decision of a majority of said Committee shall control and shall be final and binding upon all parties. Section 86. If the representatives of either party on the Committee refuse or fail to meet and proceed within said period of fifteen (15) days as provided in Article Sixteen, Section 85, the matter may be referred and submitted by either party to a Board of Arbitration as provided in Arti- cle Sixteen, Section 87. Section 87. If a majority of the Standing Committee fail for any reason to decide the dispute within thirty (30) days after said referral, the following procedure (in the event the International Arbitration Agreement does not apply) shall be followed: [a] The party desiring arbitration shall immediately serve or deliver to the other party a written demand for arbitration. [b] Within ten (10) days of such demand, the moving party shall prepare for the Board of Arbitration a complete statement of its case and deliver a copy thereof to the op- posite party. [c] Within ten (10) days after opposite party receives the statement of the moving party, the opposite shall prepare for the Board its answer, and deliver a copy thereof to the moving party. [d] The Board of Arbitration shall consist of four (4) members and a Chairman. Two (2) members shall repre- sent the Columbus Union and two (2) members shall repre- sent the Publisher, and unless the Columbus Union or the Publisher names different persons as its arbitrators in the written demand for arbitration or the other names different persons as its arbitrators within five (5) days after a copy of the written demand is delivered to the other party, then said four members shall be the same four persons who are then in office on the Joint Standing Committee. [e] Within a period of not to exceed five (5) days after the four (4) members of the Board of Arbitration becomes definite, the Columbus Union and the Publisher shall fur- COLUMBUS PRINTING PRESSMEN UNION NO. 252 nish in writing each to the other names of five (5) persons and the two (2), in one week thereafter, shall attempt to agree that one of such ten (10) persons shall serve as an impartial Chairman of the Board of Arbitration. If the par- ties are unable to agree upon an impartial Chairman, then either party may make written request that the Secretary- Manager of the Southern Newspaper Publishers Associa- tion (SNPA) and the President of the International Print- ing Pressmen and Assistants' Union of North America, acting jointly designate such impartial Chairman. The per- son so designated shall then serve as impartial Chairman. ARTICLE SEVENTEEN 285 Finality of Arbitration Section 88. It is agreed that the procedures herein provid- ed for settling disputes by arbitration shall be used to the exclusion of any other means available to the parties who execute this agreement, it being understood that all arbitra- tion decisions rendered under the terms of this Contract are final and binding on both parties. Any rights or reme- dies otherwise available to the parties to this Contract are hereby expressly waived. The parties agree to equally di- vide the cost of arbitration of any disputes set forth in Article Fifteen, Section 82, and Article One, Section 2.