Tri-Clover, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1048 Tri-Clover, Inc. and International Federation of Pro- fessional & Technical Engineers, Local 92. Cases 30–CA–15004, 30–CA–15036, and 30–CA– 15091 November 20, 2001 DECISION AND ORDER BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN AND WALSH On August 31, 2000, the Regional Director for Region 30 issued an order consolidating cases, a consolidated complaint, and a notice of hearing in this proceeding alleging that the Respondent committed unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act. The Respondent filed an answer admitting in part and denying in part the allegations of the complaint and asserting affirmative defenses. On November 22, 2000, the Respondent filed with the Board a motion to dismiss the consolidated complaint, arguing that the Board should defer the matter to the con- tractual grievance-arbitration process. On December 7, 2000, the Board issued an order transferring the proceed- ing to the Board and Notice to Show Cause why the mo- tion should not be granted. The General Counsel filed an opposition and brief to the Respondent’s motion. The Charging Party also filed an opposition to the Respon- dent’s motion. The Respondent thereafter filed a reply brief, and the General Counsel filed a response. For the reasons set forth below, we grant the Respon- dent’s motion to dismiss. The complaint alleges that the Respondent violated Section 8(a)(3) and (1) of the Act by giving verbal disci- plinary warnings to, and ultimately laying off, employee Steve Kurta for engaging in protected concerted activi- ties. The complaint also alleges that the Respondent vio- lated Section 8(a)(5) and (1) of the Act by unilaterally transferring at least two unit positions outside the unit, eliminating at least three unit positions and laying off the employees holding those positions, and subcontracting unit work to a laid-off employee. The undisputed statements in the pleadings and briefs reveal that the Respondent, a manufacturer of pumps and valves, has had a collective-bargaining relationship with the Charging Party Union since the 1970s. Their most recent collective-bargaining agreement, covering techni- cal employees at its plant in Kenosha, was effective from October 1, 1998, through October 4, 2001. In late 1999, the unit consisted of approximately eight employees. From December 1999 through April 2000, the Union filed four grievances over the discipline and layoff of Kurta and the unilateral changes mentioned above. All are currently pending at various stages in the grievance process. The Union subsequently filed unfair labor prac- tice charges with the Board for each of the underlying grievances. The parties’ collective-bargaining agreement provides in pertinent part: 23(d) The decision of the arbitrator shall be final and binding upon the parties thereto and the arbitra- tor’s fees shall be borne equally by the parties. The arbitrator shall be limited by the terms of the con- tract and shall have no power to add to the terms or to modify or amend such terms. 23(e) It shall be the intention of the parties to set- tle all differences between the employer and the Un- ion through grievance machinery and arbitration in accordance with the provisions of this agreement. Therefore, the employer agrees that it will not lock out its employees and the Union agrees that it will not sanction, authorize or condone a strike, slow- down or work stoppage during the life of this agreement. 23(f) In the event that the party that the arbitrator rules against does not fully implement the decision of the arbitrator within thirty (30) days of receipt, Paragraph 23(e) will become null and void (lockout, strike, etc.) except when either party litigates such decision of the arbitrator on the basis of violation of Section above. The Respondent contends that the unfair labor practice allegations should be deferred to the grievance- arbitration procedure of the contract. The General Coun- sel contends, however, that the matter is not appropriate for deferral under the contract, because the contractual grievance procedure is not final and binding in view of the provisions reserving to the parties the right to strike or lockout if the other party does not implement the arbi- tral award within 30 days.1 We agree with the Respon- dent that the strike and lockout provisions notwithstand- ing, the arbitration procedure provided under the collec- tive-bargaining agreement is final and binding. The Board has considerable discretion to defer to the arbitration process when doing so will serve the funda- mental aims of the Act. See Dubo Mfg. Corp., 142 NLRB 431 (1963), Collyer Insulated Wire, 192 NLRB 837 (1971), and United Technologies Corp., 268 NLRB 557 (1984). However, the Board will only defer to an arbitration procedure, which is final and binding. Paragraph 23(d) of the parties’ collective-bargaining agreement explicitly states that the decision of the arbi- 1 The General Counsel does not dispute the Respondent’s contention that in all other aspects, the case is appropriate for deferral. 336 NLRB No. 110 TRI-CLOVER, INC. 1049 trator shall be “final and binding.” This clear language is not rendered inoperative, as the General Counsel sug- gests, by the language in paragraph 23(f) allowing the prevailing party to strike or lockout in the event of the other party’s noncompliance with the arbitration deci- sion. Paragraph 23(f) merely reinforces the finality of the arbitration procedure by adding another means of enforc- ing compliance, if necessary. Of course, judicial en- forcement of the arbitration award remains a viable and, in fact, the preferred remedy. See Malrite of Wisconsin, Inc., 198 NLRB 241, 242 (1972), remanded on other grounds sub nom. Electrical Workers Local 715 v. NLRB, 494 F.2d 1136 (D.C. Cir. 1974). Nothing in the contract suggests that an arbitral award involving these parties would not be enforceable in court. Further, noncompliance with an arbitral award under the contract would also violate Wisconsin State statutory provisions prohibiting the violation of the terms of a col- lective-bargaining agreement and the refusal to accept the final determination of a tribunal having jurisdiction over a matter. See Wis. Stat. § 111.06; see also T & J Komp Electric, WERC Decision No. 26660–A (March 26, 1991). These provisions add support to our finding that the parties’ contractual arbitration procedure is final and binding. Accordingly, for all these reasons, we find that deferral of the matters alleged in the complaint pursuant to Col- lyer and United Technologies is appropriate in this in- stance.2 Therefore, we shall grant the Respondent’s mo- tion to dismiss the complaint. ORDER IT IS ORDERED that the complaint is dismissed, pro- vided that: the Board retains jurisdiction of this proceed- ing for the limited purpose of entertaining an appropriate and timely motion for further consideration upon a proper showing that either (a) the dispute has not, with reasonable promptness after the issuance of this Order, either been resolved by amicable settlement in the griev- ance procedure or submitted promptly to arbitration, or (b) the grievance or arbitration procedures have not been fair and regular or have reached a result that is repugnant to the Act. 2 We agree with the parties that in all other respects, the matter is appropriate for deferral.