J. S. Alberici Construction Co.

J. S. ALBERICI CONSTRUCTION CO. J. S. Alberici Construction Co., Inc. and Shopmen's Local Union No. 518 of the International Associa- tion of Bridge, Structural and Ornamental Iron Workers, AFL-CIO. Case 14-CA-9916 September 19, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On June 15, 1977, Administrative Law Judge Robert A. Giannasi issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respon- dent filed a brief in opposition to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief, and has decided to affirm the rulings, findings, and conclusions' of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. * The Administrative Law Judge found that even if the parties had agreed-which he considered doubtful-to a contract merging the senionty of certain employees represented by different unions, its refusal to arbitrate a seniority dispute was not unlawful. In our judgment a preponderance of the evidence does not establish that Respondent was bound to such an agreement. We, therefore, do not reach or pass on any duty Respondent might have were there an agreement. DECISION STATEMENT OF THE CASE ROBERT A. GIANNASI, Administrative Law Judge: This case was heard before me on March 21, 1977. in St. Louis, Missouri, upon a complaint which issued on February 16, 1977. The complaint was based on a charge which was filed on January 11, 1977. The complaint alleges that Respon- dent violated Section 8(aX5) and (1) of the National Labor Relations Act, as amended, by "repudiating" a memoran- dum of understanding between the Union and Respondent "as being an integral part of' the collective-bargaining agreement of the parties "by refusing to process grievances to arbitration thereunder." Respondent denies that by its conduct it violated Section 8(a)(5) and (1) of the Act. Respondent and the General Counsel filed proposed 232 NLRB No. 14 findings of fact and conclusions of law and supporting briefs. Upon the entire record in this case, I hereby make the following: FINDINGS OF FACT I. JURISDICrIONAL FINDINGS Respondent is a Missouri corporation engaged in the building and construction industry as a general contractor. It maintains its principal office and place of business in the city of St. Louis, State of Missouri, at which location it also has a fabrication shop. During the year ending December 31, 1976, Respondent in the course and conduct of its business operations purchased and caused to be transport- ed and delivered at its Missouri place of business construction materials and other goods and materials valued in excess of $100,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its places of business in Missouri directly from points located outside of the State of Missouri. Respondent is now and has been at all times material hereto an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Charging Party (hereafter the Union) is and has been at all material times a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES About half of Respondent's employees at its fabrication shop were represented by the Union and the rest by Ironworkers Local 396. The latter received outside con- struction wages and fringe benefits. Respondent and the Union had entered into a collective-bargaining agreement in 1972 which expired on May I, 1975. After discussions and exchanges of correspondence, Respondent, the Union, and Local 396, entered into a memorandum of understanding on January 24, 1975, in Washington, D.C. The memorandum was attested to by a representative of the International Association of Iron- workers who participated in the discussions leading up to the agreement. The basic purpose of the memorandum was to equalize the wage and benefit rates of employees represented by the two local unions. The memorandum contained no expiration date. On or about April 18, 1975, Respondent and the Union commenced negotiations for a new collective-bargaining agreement. Respondent made the following proposal which was accepted by the Union: This agreement is subject to Memorandum of Under- standing dated January 24, 1975, (copy to be attached). The collective-bargaining agreement which was subse- quently finalized by the parties contained no reference to the memorandum. Union Business Representative Melvin St. Clair testified that there was not any extensive discussion of the 71 DECISIONS OF NATIONAL LABOR RELATIONS BOARD memorandum during negotiations, but that the Respon- dent's president, Raymond Pieper, said, "Since we have agreed on the Memorandum of Understanding it should be incorporated in the current agreement." Later, in response to my question, St. Clair testified that at no time did management say that the memorandum was part of the contract. In December 1975, the Union tendered copies of the contract to Respondent for signature. On January 2, 1976, the Union filed grievances alleging that the Respondent had violated paragraph 6 of the memorandum concerning the recall of laid-off shop employees. Paragraph 6 reads as follows: In the event of a layoff, present shop employees of the Company, whether they be members of Iron Workers Local Union No. 396 or members of Shopmen's Local Union No. 518, shall be laid off based upon their length of service with the Company, subject to their ability to perform the work in question in accordance with generally recognized shop practices of the Company, and will be recalled in reverse order (list attached). On January 14, 1976, Respondent answered the grievances by stating (1) there was "no violation of agreement" and (2) "Grievance was not timely filed." Thereafter, in January and February 1976, several meetings were held between Respondent and the Union. In one of the meetings, a representative of the International Union was present. Business Representative Melvin St. Clair represented the Union. At these meetings, the Union sought to resolve the grievances and the Respondent took the position that the memorandum was not part of the collective-bargaining agreement and thus not subject to its grievance-arbitration clause. On April 26, 1976, in a letter to St. Clair, Respondent returned copies of the agreement signed subject to certain conditions: (I) requiring that the Union confirm the Respondent's understanding of the memorandum; and (2) detaching the memorandum from the back of the agree- ment where it had been placed by the Union. The letter also stated the Respondent's position that "The Memoran- dum is not a part of the Collective-Bargaining Agreement." On May 18, 1976, the Union filed a charge with the Board against Respondent alleging, inter alia, that Respon- dent had violated Section 8(a)(5) and (1) of the Act by "repudiating a signed memorandum of agreement between the parties," and "by attaching conditions to the signing of the collective-bargaining agreement." The General Counsel issued a complaint in Case 14-CA-9347 alleging that Respondent conditioned execution and implementation of the collective-bargaining agreement on the Union's agree- ment to its interpretation of the memorandum. On August 5, 1976, Respondent transmitted to the Union a signed signature page of the agreement with the notation "letter dated August 26, 1976, withdrawn without prejudice as set out in the letter dated August 5, 1976"; also transmitted were copies of the memorandum of under- standing which had been signed on January 24, 1975. The I Both parties limited the August settlement agreement. For example, the Union, on August 6, wrote Respondent that it was not waiving its right to arbitrate disputes involving the layoff and recall rights of employees. This covering letter withdrew the letter of April 26, 1976, "without prejudice to [Respondent's] right to maintain its position on the interpretation of these documents and litigation which might occur in the future." On August 6, the Union withdrew its charge and sent Respondent a letter stating that it was not waiving its right to arbitrate disputes involving the layoff and recall rights of employees. Also on August 6, 1976, the Acting Regional Director for Region 14 approved the Union's request for withdrawal of its charge and the complaint in Case 14-CA-9347 was dismissed. On November 23, 1976, St. Clair telephoned John Bartnett, Respondent's director of labor relations, to ask about an arbitrator to hear the grievances that had been filed in January 1976. St. Clair testified that the "executive board," presumably of the Union, had "gone on record that these grievances would be arbitrated." Bartnett said that he had not had time to review the matter and asked St. Clair to call back. On December 17, 1976, St. Clair again called Bartnett and the latter stated, "I don't think the grievance is arbitrable" and added the reason was "the same reason that we stated before." Discussion and Analysis The complaint alleges that, since December 17, 1976, Respondent refused to bargain with the Union "in that since said date Respondent has been and is repudiating the Memorandum of Understanding ... as being an integral part of the agreement . . . by refusing to process griev- ances to arbitration thereunder." The General Counsel takes the position that, on August 5, when the Respondent removed the conditions it had placed on the execution of the bargaining agreement in exchange for the Union's withdrawal of its charge filed May 18, 1976, "the parties at that point in time consummated a labor contract and the Memorandum of Understanding was part of that con- tract." General Counsel further asserts that at this time Respondent agreed that the memorandum "was part of the contract and subject to the grievance-arbitration provi- sions" thereto and that, by refusing to process the grievances under the memorandum to arbitration on December 17, 1976, as alleged in the complaint, Respon- dent disavowed and repudiated this agreement. I find and conclude that, even assuming that Respondent and the Union did, on August 5, enter into such agreement-which which is hotly contested and doubt- ful '- the Respondent did not violate the Act. The essence of the violation alleged in the complaint is that Respondent refused to arbitrate grievances under the memorandum of understanding. It is well settled that the Board does not police agreements and a refusal to arbitrate does not constitute a violation of Section 8(a)(5) and (1) of the Act. Hortex Manufacturing Company, Inc., 147 NLRB 1151, 1159 (1964), enfd. sub nom. Amalgamated Clothing Workers of America, AFL-CIO v. N.L.R.B., 343 F.2d 329 (C.A.D.C., 1965); National Dairy Products Corporation, 126 NLRB 434, 439 (1960). tends to negate any argument that the parties had indeed agreed to apply the arbitration provisions to the memorandum. If they had, there would be no need for the Union to preserve its right to arbitrate. 72 J. S. ALBERICI CONSTRUCTION CO. The General Counsel seeks to escape the impact of these authorities by arguing that "Respondent's refusal to arbitrate in and of itself is not the violative conduct; the refusal to arbitrate is only evidence of its repudiation of the agreement to incorporate the Memorandum into the contract." I am not persuaded. The evidence simply shows a refusal to arbitrate grievances. And this was all that was alleged in the complaint. If this is a repudiation, it is a repudiation only of an alleged agreement to arbitrate entered into on August 5, which is not a violation under Board law.2 Respondent did not repudiate the application of either the contract or the memorandum or any specific term of either agreement. The only objectionable action Respon- dent has taken since November 17, 1976, is the refusal to arbitrate grievances under the memorandum-a position it has taken since January 1976. It has not taken this position in bad faith nor for antiunion reasons, but rather on the I The cases cited by the General Counsel in support of his repudiation theory do not involve the situation where, as here, the only alleged repudiation is the employer's good-faith refusal to arbitrate grievances. 3 In view of my disposition of the case, I do not pass on Respondent's motion to dismiss on the ground that the violation herein alleged was consummated in January 1976 and thus the complaint was inescapably based on events which took place more than 6 months before the charge was filed under Sec. 10(b) of the Act. See Local Lodge No. 1424, International basis of its belief that disputes under the memorandum are not arbitrable. Moreover, there is a disagreement as to whether the parties agreed to arbitrate such disputes. In these circumstances, it is clear that the General Counsel has not proven that Respondent refused to bargain in good faith in violation of the Act. 3 CONCLUSIONS OF LAW The Respondent has not violated the Act. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 4 The complaint is dismissed in its entirety. Association of Machiniss, A FL-CIO [Bryan Manufacturing Co / v. N. L. R. B., 362 U.S. 411, 416 (1960). 4 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. 73