Electrical Workers Ibew Local 3 (Telecom Plus)

ELECTRICAL WORKERS IBEW LOCAL 3 (TELECOM PLUS) Local 3, International Brotherhood of Electrical Workers, AFL-CIO and Telecom Plus of Downstate New York, Inc. Case 29-CB-5394 6 June 1986 DECISION ON REVIEW AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 22 February 1985 Administrative Law Judge James F. Morton issued the attached decision. The Charging Party and the Respondent filed excep- tions, supporting briefs, and answering briefs. 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 requests for review and briefs and has decided to affirm the judge's rulings, find- ings, and conclusions and to adopt the recommend- ed Order as modified.' 1 We find it appropriate to review this proceeding under Sec 102.27 of the Board's Rules and Regulations, and therefore we shall treat the par- ties' exceptions as requests for review. For the reasons below we find that the complaint should be dismissed under any standard of review uti- lized by the Board We agree with the judge that the issuance of a remedial order is inap- propriate in this case, even assuming that the Respondent's conduct was unlawful The Board and the courts have often observed that a proceed- ing is moot where the circumstances establish that the issuance of an order would be futile See, e.g., ABC Trans-National Transport v NLRB, 642 F 2d 675 (3d Cr 1981); NLRB v Grede Plastics, 628 F.2d 1, 7 (D C. Cir 1980), Brockway Motor Trucks v NLRB, 582 F 2d 720 (3d Cr 1978); Electrical Workers IBEW Local 3 (Kidder Peabody), 270 NLRB 1025, 1031 (1984) In this case the complaint alleges that the Respondent unlawfully insisted on tape recording the parties' contract negotiations and generally refused to bargain with the Charging Party for a new contract . After the hearing, the Charging Party ceased its operations and terminated all the employees in the unit, and we see no reason to dispute the judge 's finding that there is little likelihood that the Charging Party will resume its oper- ations and that the Respondent will resume its representative status In these circumstances , we find that it would be futile to order the Respond- ent to bargain for a new contract and to cease and desist from insisting upon tape recording the contract negotiations . Our conclusion is not al- tered by the judge's finding that the parties are bargaining over the ef- fects of the closure We are not presented with the issue of whether the Respondent unlawfully has refused to engage in effects bargaining, and we note that there is no charge or complaint allegation that the Respond- ent has done so Consequently, we are concerned only with the Respond- ent's conduct during contract negotiations, and we find that the parties' effects bargaining does not preclude a finding of mootness with respect to the issues surrounding the contract negotiations. Our finding that the issues are moot is limited to the circumstances of this case, and we do not depart from previous decisions where we have found, on the facts of the case, that changed circumstances did not render the issues moot. See, e g., Kidder Peabody, supra, and cases cited therein at 1031 We note, for example, that the order herein would not have directed a make-whole remedy, unlike other cases in which the Board has found that issues were not rendered moot by the employer's cessation of operations See, e g, Construction Erectors, 265 NLRB 786 fn 6(1992) We do not agree with the judge's recommendation that we retain juris- diction in this case Rather, we find it appropriate to dismiss the com- plaint without prejudice to the Charging Party to commence additional proceedings by filing a new charge, if subsequent developments demon- strate that the Charging Party has resumed its operations and that the Re- spondent has resumed its representative status We find this approach to be consistent with the Third Crcutt's approach in ABC Trans-National 265 ORDER The complaint is dismissed, without prejudice to the Charging Party to commence additional pro- ceedings by filing a new charge, if subsequent de- velopments demonstrate that the Charging Party has resumed its operations and that the Respondent has resumed its representative status. Transport, supra, and Brockway Motor Trucks, supra. In each case the court found that it would be futile to require bargaining over a plant clo- sure decision. However, the court also stated in each case that its deci- sion was "without prejudice to the NLRB to commence additional pro- ceedings" if further factual developments established that bargaining would not be futile. 642 F.2d at 687; 582 F 2d at 741 In view of the above, we have modified the judge's recommended Order Patricia McM. Bartels, Esq., for the General Counsel. Norman Rothfeld, Esq., for the Respondent. Robert Lewis, Esq., and Donna R. Tsamis, Esq. (Jackson, Lewis, Schnitzler & Krupman), of New York City, New York, for the Charging Party. DECISION STATEMENT OF THE CASE JAMES F. MORTON, Administrative Law Judge. The complaint alleges that Local 3, International Brother- hood of Electrical Workers, AFL-CIO (Respondent) violated Section 8(b)(3) of the National Labor Relations Act (the Act) by having insisted on tape recording nego- tiating sessions and by other conduct, discussed below. Respondent's answer puts these allegations in issue. The hearing was held before me in New York City on March 19 and 20, 1984. The parties thereafter filed briefs which have been fully considered. Subsequently, the General Counsel filed a motion to dismiss the complaint on the grounds discussed at length below. Based on the entire record, I make the following FINDINGS OF FACT 1. JURISDICTION Telecom Plus of Downstate New York, Inc. (the Charging Party) had been engaged in selling and servic- ing telecommunications equipment. Its operations have met the Board's jurisdictional standard for the assertion of jurisdiction. Respondent is a labor organization as defined in Sec- tion 2(5) of the Act. II. THE MOTION TO DISMISS/ALTERNATIVELY, THE MERITS Respondent has been the collective-bargaining repre- sentative of two separate units of employees employed by the Charging Party. Those employees went out on strike on June 28, 1983. Since October 1983 the Charg- ing Party ceased soliciting new business orders and con- centrated on fulfilling its accrued obligations towards its then existing customers. On November 14, 1984 (after the close of the hearing in this case), the Charging Party 280 NLRB No. 31 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wrote Respondent that, as of November 20, 1964, it was ceasing all operations and that it was terminating its em- ployees as of that date. A. The General Counsel's Motion to Dismiss On November 20, 1984, the General Counsel filed with me a motion to dismiss the complaint , asserting in effect that it would not effectuate the policies of the Act to continue with this case in view of the termination of all the Charging Party's operations and particularly the termination of employment of all employees represented by Respondent. The Charging Party filed a statement in opposition to the General Counsel's motion. The Charging Party cited the Board's holding in Carpenters Local 751 (Cotati Cabi- net), 199 NLRB 448 (1972), in support of its contention that a conditional remedial order should issue. The Gen- eral Counsel, in response, has sought to distinguish that case by arguing that it did not involve a ruling on a motion to dismiss but that the Board simply amended an existing order with the obvious consent of all parties. For the reasons set out below, there is merit in both the General Counsel's motion and also in the Charging Party's objection and there exists analogous case law to support a rational compromise of those apparently con- flicting positions. From a pragmatic standpoint, no useful purpose is served by continuing this litigation. With the termination of all employees in the units represented by Respondent, there is only the matter of effects bargaining to be done. The Charging Party and Respondent are pursuing that matter and it is clearly in Respondent's interest to reach an accommodation thereon with the Charging Party. Re- spondent does not need the press of a remedial order against it to approach that matter in good faith. The Charging Party does not seek the issuance of a remedial order directed in any way to the effects bargaining but, as earlier noted, seeks a conditional order should its op- erations resume and the appropriate bargaining units somehow be reconstituted with the status quo ante re- stored. There seems to be little likelihood of those possi- bilities occurring and it may even be more unlikely that Respondent would thereupon resume its representative status. Too many conditions would have to be met before all those pieces would fall into place to bring about a resurfacing of the past. It seems readily evident that it would be impractical for the Board to expend its resources in evaluating the merits of this case simply to issue a remedial order when there is little rational likeli- hood that it will ever become operative. For that matter, the parties themselves appear to have better things to do with their monetary and other resources than to continue this litigation where so little benefit can be derived there- from. In an analogous situation, the Board has held that no useful purpose is served by its conducting an election, for the purpose of choosing in favor or against represen- tation, when the bargaining unit itself is soon to be dis- solved. See Replogle Globes, 107 NLRB 152 (1953). In weighing the practical considerations relevant to the General Counsel's motion, I cannot overlook that there is a significant public right to be taken into ac- count. The Board, in its deferral line of cases, has used an approach which enables it to give appropriate weight to the public interest while allowing it to avoid becom- ing involved in the underlying merits with concomitant expenses and the like. See, e.g., United Technologies Corp., 268 NLRB 557 (1984). There, the Board retained its jurisdiction over the case conditionally while it dis- missed the complaint and, by doing so, it was effectuat- ing the policies of the Act. To that same end, it is appro- priate in the instant case to grant the General Counsel's motion and at the same time to retain jurisdiction to insure a merit determination in the unlikely event that the Charging Party restores its operations and the units as heretofore existed and accords Respondent recogni- tional status then. Should the Board reject the foregoing procedural reso- lution and insist on a determination of the merits of the complaint allegations, I submit the following alternative finding. B. Alternatively, the Merits The underlying history of collective bargaining for employees of the Charging Party, its predecessors, or af- filiates, who have been represented by Respondent, is set out to some extent in two Board decisions, reported at Local 3 IBEW Electrical Workers (Telecom Equipment), 266 NLRB 714 (1983), and 269 NLRB 124 (1984). At the hearing before me, the parties alluded to collateral civil actions to which they are parties and all sides endeav- ored at one point or another to expand the area of con- troversy. For the purposes of this proceeding, the fol- lowing factual recital is of significance. At all times material, Respondent has represented the following respective units: (a) All full time and regular part time telephone interconnect employees (of the Charging Party) in- cluding telephone A journeymen, telephone H jour- neyman, telephone apprentice and telephone helpers but excluding all other employees, guards and su- pervisors as defined in the Act. (b) all full time and regular part time expeditors (employed by the Charging Party) excluding all other employees, guards and supervisors as defined in the Act. As noted above, these employees whom Respondent represents had gone out on strike in mid-1983 . In late 1983 the Charging Party began phasing out its operations when it stopped soliciting new business accounts. Also as discussed in earlier Board cases involving Respondent, a dispute existed concerning Respondent's claim to per- form certain work which was being performed by an un- represented group of employees employed by a company which was affiliated with the Charging Party. It is against this background that the following matters are set out. The uncontroverted evidence in this case discloses that Respondent, on and since August 8 , 1983, insisted on tape recording contract negotiating sessions between its representatives and those of the Charging Party's. Re- spondent urges that it had a right to so insist because the Charging Party's representatives made detailed notes of ELECTRICAL WORKERS IBEW LOCAL 3 (TELECOM PLUS) the negotiations which were used by the Charging Party in various cases involving Respondent. The Board has rejected such an attempt at rationalization and has held that a party's insistence on tape recording negotiations constitutes an unlawful imposition of a nonnlandatory subject of bargaining. See Latrobe Steel Co., 244 NLRB 825 (1979). See also Bakery Workers Local 155 (Nabisco Brands), 272 NLRB 1362 (1984), and Bartlett-Collins Co., 237 NLRB 770 (1978). The complaint in this case further alleges that, since August 8, 1983, Respondent has unlawfully failed and re- fused to meet and bargain with the Charging Party. The uncontroverted evidence before me is that Respondent and the Charging Party last met on August 8, 1983. Thereafter, the Charging Party made repeated efforts to resume negotiations. At one point, it offered to allow Re- spondent to tape record a session . Respondent thereupon informed the Charging Party that it wanted a written proposal from the Charging Party on the subject of job guarantees . Respondent stated it needed such a proposal for it to be able to bargain intelligently . Respondent also wrote other letters which raised procedural questions; in all of those letters, Respondent accused the Charging Party of refusing to bargain in good faith until a $25 mil- lion lawsuit it has against Respondent is found to lack merit. The Charging Party's efforts to schedule a meet- ing proved futile as Respondent asserted that a procedur- al impasse had been reached on its asserted right to use a tape recorder at any negotiations sessions . The tenor of Respondent's communications with the Charging Party, in overall context, demonstrates that Respondent was not open to the concept of meeting and exchanging views on mandatory bargaining subjects but, instead, demonstrates that Respondent was seizing on various devices to avoid 267 such meetings. The General Counsel has made out a clear prima facie violation and Respondent has offered no persuasive reasons to rebut it. Accordingly and in the event that the Board would rule on the merits, I would find that Respondent, in violation of Section 8(b)(3) of the Act, unlawfully insisted on tape recording the August 8, 1983 negotiating session and any to be held thereafter and, further, that Respondent, since August 8, 1983, has unlawfully avoided its responsibility to meet and bargain collectively with the Charging Party. My primary holding, however, is that it will not effec- tuate the policies of the Act to rule on the merits or issue any remedial order as the employees involved in this 8(b)(3) case have all been terminated from employment, the operations of the Charging Party have ceased and it is most improbable that the status quo ante will ever be restored. Rather, the complaint should be dismissed but, to insure the protection of the rights of the public in ac- cordance with the procedures set out in the dismissal order issued in United Technologies, supra, and other de- ferral cases, jurisdiction should be retained provisionally. Accordingly, I issue the following recommended' ORDER The complaint is dismissed, provided that: Jurisdiction of this proceeding is retained for the limit- ed purpose of entertaining an appropriate and timely motion to consider the merits on a proper showing of the necessity therefor. 1 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- loses