Electrical Workers IBEW Local 135 (La Crosse Electrical)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Electrical Workers-' Local 135 and La Crosse Electrical Contractors Association. Case 30-CB-2089 16 July 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 17 June 1983 La Crosse Electrical Contrac- tors Association (the Employer Association) filed an unfair labor practice charge against Internation- al Brotherhood of Electrical Workers Local-135 (the Union). Complaint issued on the charge 12 July 1983. The complaint alleged that the Union had violated Section 8(b)(3) of the National Labor Relations Act by demanding, as a condition of en- tering into any collective-bargaining agreement with the Employer Association, that it agree to a provision requiring interest arbitration. The Union filed an answer 22 July 1983. Thereafter all parties to this proceeding entered into a stipulation of facts and of the record, waiving proceedings before an administrative law judge and requesting that the case be transferred to the Board for decision pursu- ant to Section 102.50 of the Board's Rules and Regulations. On 13 January 1984 the parties for- warded to the Board the stipulation, the stipulated record, and the briefs of the Union and the General Counsel. The Board has delegated its authority in this pro- ceeding to a three-member panel. We hereby ap- prove the stipulation and order the proceeding transferred to the Board. The Board has considered the stipulation and the stipulated record in light of the briefs and makes the following FINDINGS OF FACT I. JURISDICTION The Employer Association is an organization composed of seven employers engaged as electrical contractors in the building and construction indus- try in the areas of western Wisconsin and eastern Minnesota. It represents its members in the negotia- tion and administration of collective-bargaining agreements. During calendar year 1982, the em- ployer members of the Employer Association col- lectively purchased and received at their La Crosse, Wisconsin facilities goods valued in excess of $50,000 directly from points outside the State of Wisconsin. We find, as alleged in the complaint and admitted in the answer, that the Employer As- sociation is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of 271 NLRB No. 36 the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. 11. ALLEGED UNFAIR LABOR PRACTICES A. The Stipulated Facts For at least 15 years, the Employer Association and the Union entered into and maintained a series of collective-bargaining agreements. Their most recent agreement was effective for the period I June 1982 through 1 June 1983. On 26 February 1983 the Employer Association sent a letter to the Union giving notice that it wanted to change or delete certain provisions of the collective-bargain- ing agreement upon its expiration. Among the pro- visions the Employer Association sought to delete were the following provisions for interest arbitra- tion: ARTICLE I SECTION 1.02(D)-Unresolved issues in ne- gotiation that remain on the 20th of the month preceding the next regular meeting of the Council on Industrial Relations may be submit- ted jointly or unilaterally by the parties to this Agreement to the Council for adjudication prior to the anniversary date of the Agree- ment. (E) When a case has been submitted to the Council, it shall be the responsibility of the ne- gotiating committee to continue to meet weekly in an effort to reach settlement on the local level prior to the meeting of the Council. (F) Notice by either party of a desire to ter- minate this agreement shall be handled in the same manner as proposed change. At negotiating meetings on 23 March and 11 April 1983, the parties were unable to reach agree- ment on several items including the foregoing pro- visions for interest arbitration. On 30 April 1983 the Employer Association and the Union jointly submitted the unresolved issues to the Council on Industrial Relations for the Electrical Contracting Industry. In its brief to the Council, the Employer Association requested that the interest arbitration provision be modified to require the consent of both parties before unresolved bargaining issues could be submitted to the Council for resolution. The Employer Association's brief further stated that this was not a negotiable item. The Union op- posed the Employer Association's proposed change, asserting that labor unrest would result if the provision for mandatory interest arbitration were removed from its agreement with the Em- ployer Association while the provision was re- 250 ELECTRICAL WORKERS IBEW LOCAL 135 (LA CROSSE ELECTRICAL) tained in its agreement with another multiemployer bargaining association. On 16 May, the Council issued its decision de- clining "at this time to change the existing lan- guage or add new language" on interest arbitra- tion.' The Employer Association and the Union have had no written collective-bargaining agree- ment since 1 June 1983. B. Discussion and Conclusions In its brief to the Board, the Union acknowl- edges that the parties bargained to impasse on in- terest arbitration, among other issues. The Board, with court approval, has repeatedly held that inter- est arbitration "is not a mandatory subject of bar- gaining and that neither party can compel the other to negotiate about a contract clause that would, in the event of a new contract negotiation disagree- ment, in effect substitute a third party as final deci- sionmaker of disputed contractual terms." Plumbers Local 387 (Mechanical Contractors Assn.), 266 NLRB 129, 133 (1983), and cases there cited.2 See also Graphic Arts Local 23 v. Newspapers, Inc., 586 F.2d 19, 21 (7th Cir. 1978); Sheet Metal Workers Local 14 v. Aldrich Air Conditioning, 717 F.2d 456 (8th Cir. 1983). By insisting to impasse on such a nonmandatory provision the Union therefore vio- lated its bargaining obligations under the Act. See NLRB v. Borg-Warner Corp., 356 U.S. 342, 349-350 (1958). That there were other issues dividing the parties is no defense, for "in order to reach an im- passe in violation of [Section 8(b)(3)] it is not nec- essary that the [nonmandatory] proposal be the sole cause for failure of agreement." Philip Carey Mfg. Co. v. NLRB, 331 F.2d 720, 728 (6th Cir. 1964), cert. denied 379 U.S. 888 (1964), enfg. in relevant part 140 NLRB 1103 (1963). Nor is it a defense that the parties' contract pro- vided for resolution of bargaining disputes through interest arbitration and that the parties submitted their dispute over interest arbitration to the Coun- cil on Industrial Relations pursuant to their con- tract. We rejected a similar contention in Sheet Metal Workers Local 59 (Employers Assn.), 227 NLRB 520, 521 (1976), invoking "the well-settled principle that, on[c]e having agreed to a nonman- The Council's decision refers to the interest arbitration issue as "Modified CIR." The abbreviation "CIR" refers to the Council of Indus- trial Relations. ' As noted above it is undisputed in the present case that the clause insisted upon by the Union provided for interest arbitration. There is thus no occasion to reach the further issue addressed in Plumbers Local 387, 266 NLRB at 134-135, of whether a clause allegedly providing for a second level of bargaining by a new set of negotiators, rather than for interest arbitration by a third party, is also a nonmandatory subject of bargaining. Nor is there any dispute here that the parties bargained to im- passe over the interest arbitration issue. See Plumbers Local 387, above at 134, distinguishing Mechanical Contractors Assn. of Newburgh, 202 NLRB 1, 3 (1973). datory term, a party does not thereafter impliedly waive the right to insist that the term be removed from the bargaining table in any subsequent negoti- ations." See Chemical Workers Local I v. Pittsburgh Glass Co., 404 U.S. 157, 187 (1971). Accordingly, a prior agreement to submit disputes over new con- tract terms to interest arbitration does not bind the parties to accept an interest arbitrator's determina- tion to perpetuate interest arbitration in future agreements. As we noted in Sheet Metal Workers Local 59, above at 521, "Because the nonmanda- tory subjects in issue here deal with contract dis- pute resolution, the very procedures in controversy could always be invoked to determine their contin- ued force and effect, with the very real prospect of a perpetual existence for the nonmandatory con- tract term." See also NLRB v. Printing Pressmen Local 252, 543 F.2d 1161, 1169-1171 (5th Cir. 1976). There is no merit to the Union's suggestion that by proceeding to interest arbitration under the col- lective-bargaining agreement the Employer Asso- ciation waived its right to protest to the Board the Union's unlawful insistence on retaining interest ar- bitration in future agreements. Although the Board has elected to defer to contractual grievance and arbitration procedures and decisions thereunder, in certain circumstances, it has clearly rejected any suggestion that by resorting to such procedures the parties waive their right to bring unfair labor prac- tice charges to the Board. See United Technologies Corp., 268 NLRB 577 (1984); Olin Corp., 268 NLRB 573 (1984). "By well established principle, private contracts may not be used to legitimate unfair labor practices nor to divest the Board of ju- risdiction over such practices." Emerson Electric Co. v. NLRB, 650 F.2d 463, 467 (3d Cir. 1981), cert. denied 455 U.S. 939 (1982), enfg. as modified 246 NLRB 1143 (1979). The Union has not con- tended that the Council's interest arbitration deter- mination meets the Board's standards for deferral and it clearly does not. Issues presented in the in- terest arbitration proceeding, concerning what con- tractual terms shall bind the parties for the future, are in no sense parallel to the statutory issue pre- sented here-whether the Union failed to bargain in good faith by insisting to impasse on a nonman- datory subject of bargaining. See Printing Pressmen Local 252 (Page Corp.), 219 NLRB 268, 270 (1975), enfd. 543 F.2d 1161, 1167 (5th Cir. 1976). See also Olin Corp., above. At no time has the Employer Association acqui- esced in the Union's demand for interest arbitra- tion. As noted, the Employer Association bar- gained to impasse on the issue and argued in its brief to the Council that this was not a negotiable 251 DECISIONS OF NATIONAL LABOR RELATIONS BOARD item. In sum, nothing in the parties' contract or in the conduct of the Employer Association legiti- mized the Union's unlawful insistence on a non- mandatory subject of bargaining. We therefore find merit in the complaint allegation that the Union violated Section 8(b)(3) of the Act by demanding, as a condition of entering into any collective-bar- gaining agreement, that the Employer Association agree to a provision requiring interest arbitration. Cases cited by the Union are not to the contrary. Indeed, three of the four cited cases specifically recognize that interest arbitration is a nonmanda- tory subject of bargaining and that insistence to im- passe on inclusion of an interest arbitration clause in a new contract is an unfair labor practice. Sheet Metal Workers Local 14 v. Aldrich Air Conditioning, 717 F.2d at 458; NLRB v. Printing Pressmen Local 252, above at 1164-1171; Sheet Metal Workers Local 252 v. Standard Sheet Metal, 699 F.2d 481, 483-484 (9th Cir. 1983). The fourth case does not involve interest arbitration. Teamsters Local 135 v. Jefferson Trucking Co., 628 F.2d 1023 (7th Cir. 1980), cert. denied 449 U.S. 1125 (1981).3 CONCLUSIONS OF LAW By insisting to impasse that a new collective-bar- gaining agreement include a provision for interest arbitration, the Union has engaged in an unfair labor practice affecting commerce within the mean- ing of Section 8(b)(3) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent violated Sec- tion 8(b)(3) of the Act by insisting, as a condition of any collective-bargaining agreement, that the Employer Association agree to interest arbitration, we shall order the Respondent to cease and desist from this, or any like or related, unfair labor prac- tice. We shall also order the Respondent to post in conspicuous places at all its locations, including all places where notices to members are customarily posted, signed copies of the attached notice and to mail to the Regional Director for Region 30 suffi- cient signed copies of the notice for forwarding to the Employer Association and, if the Employer As- sociation and its members are willing, for posting by them in all locations where notices to employ- ees are customarily posted. 3 There is no merit to the Union's effort to predicate a defense on the Employer Association's alleged failure to move to vacate the interest ar- bitration award. The stipulation of the parties is silent on whether the Employer Association moved to vacate the award. But, in any event, as noted, the arbitration award did not oust the Board of jurisdiction over the unfair labor practice issues in this case. Cf. Carey v. Westinghouse Corp., 375 U.S. 261, 272 (1963) ("The superior authority of the Board may be invoked at any time"). ORDER The National Labor Relations Board orders that the Respondent, International Brotherhood of Electrical Workers-Local 135, its officers, agents, and representatives, shall 1. Cease and desist from (a) Insisting to impasse that La Crosse Electrical Contractors Association or any of its members agree to interest arbitration or any other nonman- datory subject of bargaining. (b) In any like or related manner violating its ob- ligation to bargain in good faith, under Section 8(b)(3) and Section 8(d) of the Act, with La Crosse Electrical Contractors Association or any of its members. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Post at all its locations copies of the attached notice marked "Appendix." 4 Copies of the notice, on forms provided by the Regional Director for Region 30, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to mem- bers are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no- tices are not altered, defaced, or covered by any other material. (b) Sign and mail sufficient copies of the notices to the Regional Director for forwarding to the La Crosse Electrical Contractors Association and for posting by the La Crosse Electrical Contractors Association and its members, if they are willing, in locations where notices to employees are customar- ily posted. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 4 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board." APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. 252 ELECTRICAL WORKERS IBEW LOCAL 135 (LA CROSSE ELECTRICAL) WE WILL NOT insist to impasse that the La Crosse Electrical Contractors Association or any of its members agree to submit disputes over new contract terms to the Council on Industrial Rela- tions or any other third party. WE WILL NOT in any like or related manner vio- late our obligation under the Act to bargain in good faith with the La Crosse Electrical Contrac- tors Association or any of its members. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS-LOCAL 135 253