Carpenters 46 Conference Board (Refrigeration Design)

122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carpenters 46 Northern California Counties Confer- ence Board, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Refrig- eration Design Contractors . Case 20-CB-6546 21 January 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 16 August 1985 Administrative Law Judge Jay R. Pollack issued the attached decision. The General Counsel and the Charging Party filed ex- ceptions and supporting briefs, and the Respondent filed a brief in opposition to exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions2 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed, provided that: Jurisdiction over this proceeding is retained 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 decision, been resolved by amicable settlement in the grievance procedure or submitted promptly to arbitration, or (b) the grievance or arbitration procedures have not been fair and regular or have reached a result which is repugnant to the Act. i In sec II, par 5 of his decision, the judge, in an apparent inadvertent error, referred to the Respondent Union's II April 1985 letter as "the letter of 29 March 1985." 2 We find it unnecessary to rely on Nolde Bros., Inc v. Bakery Workers Local 358, 430 US 243 (1977); American Sink Top Co., 242 NLRB 408 (1979); and Digmor Equipment Co., 261 NLRB 1175 (1982), cited by the judge, because the instant case involves a dispute which clearly arose during the term of the contract Corinna Lothar Metcalf, Esq., and Lucile L. Rosen, Esq., for the General Counsel. David A. Rosenfeld, Esq. (Van Bourg, Weinberg, Roger and Rosenfeld), of San Francisco, California, for the Respondent Union. Mark R. Thierman, Esq. (Thierman, Simpson and Cook), of San Francisco, California, for the Charging Party Employer. DECISION STATEMENT OF THE CASE JAY R. POLLACK, Administrative Law Judge. I heard this case in trial at San Francisco, California, on 23 July 1985. Pursuant to a charge filed against Carpenters 46 Northern California Counties Conference Board, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Respondent or the Union) by Refrigeration Design Contractors (Charging Party or the Employer) on 24 April 1985, the Acting Regional Director for Re- gional 20 of the National Labor Relations Board issued a complaint against Respondent on 31 May 1985, alleging that Respondent violated Sections 8(b)(3) and 8(d) of the National Labor Relations Act. The parties have been afforded full opportunity to appear, to introduce relevant evidence, to examine and cross-examine witnesses, and to file briefs. The post-trial briefs were limited to the issue of whether the case should be deferred to the grievance and arbitration pro- visions of the contract between the Employer and the Union which was in effect prior to March and April 1985, the times material. Only the General Counsel filed a brief. Based on the entire record, I make the following FINDINGS OF FACT AND CONCLUSIONS 1. JURISDICTION The Employer is a corporation with an office and place of business in Sacramento, California, which is en- gaged as a contractor in the building and construction in- dustry in the construction of commercial facilities. During the 12 months prior to the alleged unfair labor practice, the Employer provided services in excess of $50,000 to customers within the State of California each of which customers meet the Board's applicable stand- ards for the assertion of jurisdiction on a basis other than the indirect inflow or indirect outflow standards. Ac- cordingly, Respondent admits and I find that the Em- ployer is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Union is now, and has been at all times material herein, a labor organization within the meaning of Sec- tion 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Issues The Union has, over the years, entered into a series of contracts with the Building Industry Association of Northern California, the most recent of which is effec- tive from 16 June 1983 through 15 June 1986. This master agreement provides that it shall remain in effect from 16 June 1983 through 15 June 1986, and "shall con- tinue thereafter from year to year unless either party, not more than ninety . . . days nor less then sixty . . . days prior to the 15th day of June of any subsequent year, serves written notice on the other of its desire to change, modify, amend, supplement, renew, or extend this Agree- ment." 278 NLRB No; 21 CARPENTERS 46 CONFERENCE BOARD (REFRIGERATION DESIGN) 123 On 21 March 1980, the Employer executed a memo- randum agreement with the Union. This memorandum agreement was a "torn out" portion physically located at the conclusion of the master agreement then in effect. By signing the memorandum agreement the individual employer agrees to comply with all wages, hours, and working conditions set forth in the Carpenters Master Agreement for Northern California dated June 16, 1977, through June 15, 1980 (which Agreement is incorporated herein by reference and a copy of which has been delivered to me and receipt of which is hereby expressly ac- knowledged), which amends, modifies, supplements and renews each and every, all and singular, previ- ous Carpenters Master Agreements or individual employer Memorandum Agreements in the con- struction industry in the 46 Northern California Counties and any further modifications, changes, amendments, supplements, extensions or renewals of or to said Master Agreement which may be negoti- ated between the parties thereto for the term there- of. Just before the signature line, the memorandum agree- ment provides that the agreement: shall remain in full force and effect until June 15, 1980 and shall continue from year to year thereafter unless either party shall given written notice to the other of the desire to change or cancel at least sixty (60) daysprior to June 15, 1980, or June 15 of any succeeding year. In March 1985 Mark R. Thierman, counsel for the Company, telephoned the Union and asked for a copy of the memorandum agreement signed by the Employer, and on 21 March 1985 L. E. Bee, executive director of the Union, wrote to Thierman enclosing a copy of the above-described memorandum agreement. Pursuant to the language of the memorandum agreement, Mark Thierman wrote to the Union on 29 March 1985, advis- ing the latter that in accordance with the termination provisions of the memorandum agreement, the Employer was terminating its current collective-bargaining agree- ment as of 16 June 1985 and requested the Union to bar- gain concerning a new contract. On 11 April 1985 L. E. Bee replied to Mark Thierman informing him that the "purported notice of cancellation is untimely," that the Union did not wish to cancel or terminate the agreement, and that the Union expected the Company to abide by the master agreement until its expiration in 1986. To date, the Employer has received no response to its bargaining request other than the letter of 29 March 1985 refusing to accept the cancellation of the contract. Respondent alleged in its answer as an affirmative de- fense that the instant unfair labor practice allegations should be deferred to the grievance and arbitration pro- cedures contained in the collective-bargaining agreement between the parties.' The current master agreement pro- vides that "any dispute concerning-the relationship of the parties, any application or interpretation of this Agree- ment shall be subject to the [grievance and arbitration] procedure." The parties argued the deferral issue at the hearing and were given the opportunity to file briefs, limited to the deferral issue. Only the General Counsel filed a posttrial brief. The General Counsel and Charging Party argued against deferral. ' B. Analysis and Conclusions The Board has recently stated: "Whether deferral is appropriate is a threshold question` which must be decid- ed in the negative before the merits of the unfair labor practice allegations can be considered." L. E. Meyers Co., 270 NLRB 1010 (1984). Accordingly, as I deem this case particularly appropriate for deferral, I do not discuss of consider the merits of the complaint. The Board has a strong policy of encouraging the use of the arbitration procedures contained in collective-bar- gaining agrements.2 This policy is equally applicable whether the aggrieved party is a union or an employer. In the instant case, the dispute involves contract inter- pretation, an issue well suited for resolution by an arbi- trator. There is the required parallelism- between the issue -an arbitrator would be called upon to decide and the issue which the Board would be called on to decide. Further, Respondent has agreed to waive the timeliness provision of the grievance procedure and any other pro- cedural defense it may have to the resolution of this dis- pute through arbitration. The General Counsel and Charging Party first agrue that deferral is not appropriate because there is a ques- tion whether or not a contract, in fact, exists. That argu- ment misstates the issue. All parties concede that a con- tract existed during April or May 1985 when this dispute arose. The only issue concerns the duration of the agree- ment. The General Counsel and Employer allege that the agreement expired on 15 June 1985 while the Union al- leges that the agreement could not expire until 15 June 1986. Assuming, arguendo, that the agreement expired on 15 June 1985, the dispute arose during the term of the contract and the grievance and arbitration procedures would survive the expiration of the contract concerning this dispute. See Nolde Bros. v Bakery Workers Local 358, 430 U.S. 243 (1977), American Sink Top Co., 242 NLRB 408 (1979); Digmor Equipment Co., 261 NLRB 1175 (1982). Second, the General Counsel and Employer argue that the grievance procedure does not cover the instant dis- pute. Again, the argument misstates the question. The in- stant grievance procedure clearly covers the question of whether the contract permitted the Employer to termi- nate in 1985. The answer to that question governs whether the Union is required to bargain for a succeed- ing contract or whether it may insist on adherence to the ' The Union has agreed to waive the timeliness provisions of the griev- ance procedure and any other procedural defenses it may have to resolv- ing this dispute through arbitration. 2 See Collyer Insulated Wire, 192 NLRB 837 (1971); United Technol- ogies Corp., 268 NLRB 557 (1984); and Olin Corp, 268 NLRB 573 (1984). 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract until proper termination. Whether the arbitrator could effectuate the same remedy as the Board is not germane to the deferral question. What is critical is that the arbitrator could decide the contract question which determines the relationship of the parties. That .same question is central to the issues raised by the complaint. Third, the General Counsel argues that deferral is in- appropriate "because the Board has ruled on the identi- cal issue." However, in deciding whether deferral is ap- propriate, a consideration of the merits is irrelevant. As noted earlier, the substantive merits of the case should only be considered if the deferral question is decided in the negative. See L. E. Meyers, supra. The only excep- tions to such a rule would be where the complaint did not state a violation of the Act or would not survive a motion for summary judgment. Accordingly, I find that this matter should be resolved by the use of the collectively agreed-upon method of dis- pute resolution. Therefore, I shall recommend that this matter be deferred to the grievance and arbitration pro- cedure of the collective-bargaining agreement between Respondent and the Employer which was in effect in April and May 1985. 2. Carpenters 46 Northern California Counties Confer- ence Board, United Brotherhood of Carpenters and Join- ers of America,' AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. No good cause has been shown why the issues raised by the instant complaint should not be deferred to the broad grievance and arbitration provisions of the ap- plicable collective-bargaining agreement. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3 ORDER The complaint is dismissed provided that Jurisdiction of this proceeding is retained for the limit- ed purposes of entertaining an appropriate and timely motion for further consideration on a proper showing that either (a) the dispute has not, within reasonable promptness after the issue of this decision and order, either been resolved or submitted promptly to arbitra- tion, or (b) the grievance or arbitration procedures have not been fair and regular or have rendered a result which is repugnant to the Act. CONCLUSIONS OF LAW 1. Refrigeration Design Contractors is a employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 9 If no exceptions are filed as provided by Sec. 102 .46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses