Pueblo Sheet Metal Workers, Inc

PUEBLO SHEET METAL WORKERS Pueblo Sheet Metal Workers, Inc and Sheet Metal Workers Local Union No 9 Case 27-CA- 10215 February 7, 1989 ORDER DENYING APPEAL BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On August 9, 1988, Administrative Law Judge Jay R Pollack issued the attached Order Permit- ting Withdrawal of Complaint in this proceeding Counsel for the Charging Party filed an appeal, ex- ceptions, and a supporting brief, and the Respond- ent filed an answering brief The judge, in granting the General Counsel's posthearing motion for permission to withdraw the complaint, found that the General Counsel had de termined that the legal underpinnings of the com- plaint no longer existed as a result of the recent Board decision in Brannan Sand & Gravel Co, 289 NLRB 977 (1988) 1 The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board treats the Charging Party's appeal and exceptions as an appeal of a ruling of an ad- ministrative law judge under Section 102 26 of the Board's Rules,2 and denies the appeal because we find that the judge did not act arbitrarily or capa- ciously or otherwise abuse his discretion in grant- ing the General Counsel's motion 3 Having duly considered the matter, i Member Higgins did not participate in Brannan He disagrees with the holding there that construction industry collective bargaining rela tionships predating the enactment of Sec 8(f) in 1959 are presumed to be 8(f) relationships In Higgins view there could not be an 8(f) sanctioned relationship before its enactment Accordingly Sec 10(b) of the Act would preclude any inquiry into the nature of a relationship that has ex isted continuously for more than 30 years See Bryan Mfg v NLRB 362 U S 411 (1960) However absent any indication from a majority of the current Board-including three members who participated in Brannan- of a desire to depart from the holding there Member Higgins agrees that the judge did not abuse his discretion in granting the General Counsels motion to withdraw the complaint in this case 2 See Consumers Distributing 274 NLRB 346 fn 1 (1985) We note the concerns expressed by former Member Dennis in her par teal dissent in Consumers Distributing but we conclude that under the Board law as explained in the Supreme Court s subsequent decision in NLRB v Food & Commercial Workers Local 23 108 S Ct 413 419-420 (1987) it is clear that just as an aggrieved party could obtain judicial review of any Board order effectively approving an informal settlement that results in withdrawal of complaint after a hearing on the complaint has commenced so the order in the present case in which the Board re views the administrative law judge s ruling under an abuse of discretion standard and effectively disposes of the case is a judicially reviewable order Hence the reasons for former Member Dennis unwillingness to treat the submission as an appeal under Rule 102 26 are no longer a matter for concern a The decision whether to grant a motion to withdraw a complaint is within the discretionary authority of the judge See General Maintenance Engineers 142 NLRB 295 (1963 ) I-fence the Board limits its scope of review to an inquiry as to whether the administrative law judge abused 855 IT IS ORDERED that the Charging Party's appeal from the judge's granting of the General Counsel's motion for permission to withdraw the complaint is denied his discretion See Consumers Distributing supra Greyhound Lines 235 NLRB 1100 fn 2 (1978) and Graphic Arts Local 277 (Mueller Color) 230 NLRB 1219 fn 4 (1978) Donald Gene Chavez Esq , for the General Counsel Robert R Miller Esq (Stettner Miller & Cohn) of Denver Colorado, for the Respondent Walter C Brauer III Esq (Brauer & Buescher) of Denver Colorado , for the Union ORDER PERMITTING WITHDRAWAL OF COMPLAINT JAY R POLLACK, Administrative Law Judge On August 20, 1987, Sheet Metal Workers Local Union No 9 (the Union) filed the instant charge against Pueblo Sheet Metal Workers, Inc (Respondent) A complaint issued on September 28, 1987 alleging that Respondent violated Section 8(a)(5) of the Act by the following con duct (a) Since on or about July 16, 1987 Respondent has failed and refused to meet and bargain with the Union concerning wages, hours, and other terms and conditions of employment, (b) since on or about July 16, 1987, Respondent has repudiated its collective bargaining relationship with the Union and (c) since on or about July 16, 1987 Respondent has unilaterally changed wages, fringe benefits, and other terms and conditions of employment of employees working in the bargaining unit I heard this case in teal on April 28 1988, in Pueblo Colorado After the submission of postheanng briefs on July 25, 1988, the General Counsel filed a Motion to Withdraw Complaint based on the Board s decision in Brannan Sand & Gravel Co, 289 NLRB 977 (1988) Thereafter I issued an order to show cause why the complaint should not be withdrawn, and on August 8, 1988 the Union filed a Response Objecting to General Counsels Motion to Withdraw Complaint For the fol lowing reasons I grant the General Counsels motion Respondent, a heating and air conditioning contractor in the building and construction industry had a collec tive bargaining relationship with Local 118 of the Sheet Metal Workers International Association since at least the early 1950s In 1963 Local 118 merged with Local 9, the Union here Since the merger in 1963 Local 9 has represented the Respondents employees In 1968, the bargaining unit was merged into a multiemployer, state wide unit represented by the Union By 1987, the time of the instant dispute, Respondent had withdrawn from multiemployer bargaining and the employees were repre sented by the Union in a single employer bargaining unit On July 16, 1987, Respondent believing it was privi leged to do so under the Boards decision in John Deklewa & Sons 282 NLRB 1375 (1987), repudiated its obligation to bargain with the Union and its recognition of the Union as the employees collective bargaining rep resentative On that same date Respondent unilaterally 292 NLRB No 96 856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD implemented changes in wages, benefits, and other terms and conditions The General Counsel and the Union contended that since the bargaining relationship predated the 1959 amendments to the Act which establishes and sanctions Section 8(f) contracts, the Union was a 9(a) majority rep resentative This theory was rejected by the Board in Brannan Sand & Gravel supra Thus, the General Coun sel seeks to withdraw the complaint i First, the Union objects to the withdrawal on proce dural grounds I find that the General Counsels with drawal is procedurally correct under Section 102 27 of the Board s Rules and Regulations See Brandeis School, 287 NLRB 836 (1987) Second, the Union seeks a delay to determine whether to move to reopen the record to obtain more evidence on the collective bargaining representative status of the Union " I deny this request for two reasons The parties clearly had the opportunity to present evidence concern ing initial recognition but did not or could not present such evidence at the hearing Most important, such evi i The case also involves a successorship issue For purposes of this order I asume that the General Counsel and Union would prevail on the successorship issue dence would most likely have no effect on the outcome of the case Assuming arguendo that initial recognition was under Section 9(a) the bargaining unit greatly ex panded in 1968 (becoming a multiemployer, statewide unit), and there was no evidence that the 1968 recogni tion was under Section 9(a) of the Act Under Deklewa and Brannan Sand, the burden was on the General Coun sel and the Union to establish that such was not recogni tion under Section 8(f) Third, the Union seeks a decision on the meets to allow the Union its right to request review by the Board While this order permits the General Counsel to withdraw the complaint, the Union s appeal rights are protected Any party may obtain review of this action by filing a request therefrom with the Board in Washington, D C, stating grounds for review and immediately on such filing shall serve a copy thereof on the other par ties Unless the request is filed within 20 days from the date of this Order, the case shall be closed See Section 102 27 of the Board s Rules and Regulations of the Na tional Labor Relations Board Accordingly, IT IS ORDERED that the General Counsels Motion to Withdraw Complaint is granted and the case is closed