Sheet Metal Workers Local 263 (Sheet Metal Contractors)

SHEET METAL WORKERS LOCAL 263 (SHEET METAL CONTRACTORS) 43 Sheet Metal Workers' International Association, Local Union No. 263 and Sheet Metal Contrac- tors Labor Relations Council of Iowa, Inc., Cedar Rapids Chapter Case 18-CB-1347 17 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 21 May 1984 Administrative Law Judge James L Rose issued the attached decision The Respondent filed exceptions and a supporting brief The Charging Party filed a brief in support of the judge's decision 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,' and conclusions and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Sheet Metal Workers' International Association, Local Union No 263, , Cedar Rapids, Iowa, its officers, agents, and representatives, shall take the action set forth in the Order ' We find It unnecessary to rely on the judge s finding that the Nation al Joint Adjustment Board acted beyond its authority when It ordered the parties to include in their successor collective bargaining agreement art X, sec 8 DECISION STATEMENT OF THE CASE JAMES L ROSE, Administrative Law Judge This matter was tried before me at Cedar Rapids, Iowa, on February 24, 1984, upon the General Counsel's com- plaint 1 alleging that the Respondent violated Section 8(b)(1)(B) and (3) of the National Labor Relations Act, by insisting to impasse on a nonmandatory subject (inter- est arbitration) during the course of collective bargain- ing Pursuant to notice, at the outset of the hearing counsel for the General Counsel moved to withdraw the 8(b)(3) allegations 2 The Charging Party objected to withdrawal I The charge was filed on August 9 1983 amended on September 8, and the compatnt issued on September 23 2 On November 10 1983, the Acting Regional Director issued an order withdrawing those complaint allegations but revoked this order on November 25 in order to give the Charging Party an opportunity to argue its objections to an administrative law judge NLRB Casehandling Manual, Sec 10275 2 of the 8(b)(3) allegations and urges that a violation of this section be found and an appropriate remedy ordered In effect, counsel for the General Counsel argues that she is exercising prosecutorial discretion under Section 3(d) of the Act and the motion should be granted pro forma Section 3(d) does invest in the General Counsel "final authority in respect of the issuance of com- plaints and in respect of the prosecution of such complaints before the Board" But a charging party does have some rights—including participation in the hearing before the Board, and in the appropriate circuit court under Section 10(f) as a "person aggrieved" or as an in- tervenor However, a charging party "is rather the gadfly insuring that the Board considers all relevant facts and acts in the public interest and the enforcer of what- ever private rights the Act recognizes" NLRB v Oil Workers, 476 F 2d 1031, 1036 (1st Cir 1973) Thus the General Counsel may not settle a case, and withdraw the complaint, without giving the charging party an opportunity to voice its objection Farmers Co- operative Gin Assn , 168 NLRB 367 (1967) Though the precise reach at a charging party's right in this regard is disputed among the circuits (Compare Oil Workers, supra, and Leeds & Northrup Co v NLRB, 357 F 2d 527 (3d Cir 1966)), no doubt there is required at least an evi- dentiary hearing on contested, material facts and a record decision why the settlement ought to take over objection This case, however, does not involve withdrawal of the complaint as part of a settlement Here the General Counsel seeks withdrawal on grounds that the proof would not sustain the unfair labor practice alleged Thus, arguably, the above cases are inapposite George Banta Co v NLRB, 626 F 2d 354 (4th Cir 1980), Machinists v Lubbers, 681 F 2d 598 (9th Cir 1982), where the General Counsel's power to withdraw a complaint was found to be within his Section 3(d) discretion and not reviewable But these two matters involved withdrawal of the com- plaint before hearing (Both were actions against the Board and/or its agents, not enforcement proceedings under Sec 10(f) ) The instant case concerns a motion to withdraw a por- tion of a complaint after the hearing opened where set- tlement is not involved Though Banta is inapposite be- cause it involved a prehearing act of the General Coun- sel, the Fourth Circuit's distinction between prosecuto- rial discretion (where the General Counsel's authority is final) and "relinquishment of a cause of action having possible merit in an effort to achieve other objectives" (where the Charging Party has the right to be heard) (626 F 2d at 357), seems reasonable Nevertheless, the question here is does the General Counsel's final author- ity not to prosecute some matter end upon the opening of a hearing9 I believe it does Section 102 17 of the Board's Rules and Regulations provides for amendment of the complaint at various stages of a proceeding, 3 including "at the hearing 3 Though the General Counsel's administrative manual provides for the procedure used here such is not required by the Act or the Board's Continued 272 NLRB No 13 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon motion, by the administrative law judge designated to conduct the hearing" Thus, once the hearing has opened, the General Counsel no longer has discretion to amend the complaint to withdraw all or a portion of it He must move to do so Vesting the judge with the au- thority to allow a complaint to be amended implies the authority to disallow the motion Such was the ruling of Trial Examiner Reel in Watkins Furniture Co, 160 NLRB 188 (1966), and Administrative Law Judge Klein in Woodlawn Hospital, 233 NLRB 782 (1977) Both denied the General Counsel's motion to withdraw a portion of the complaint and later found vio- lations of the Act on the allegations sought to be with- drawn In Watkins, the Board reversed the substantive finding but did not question the procedure of disallowing the motion to withdraw the allegation In Woodlawn, the substantive finding was adopted, again without discussion of the procedural issue Accordingly, I conclude that the General Counsel does not have the discretion to amend a complaint by withdrawing a portion of it after the hearing has opened Whether the motion for such an amendment should be granted over objection of the charging party must neces- sarily depend on the case The General Counsel, of course, may have correctly determined that allegation does not have merit But that cannot be determined until all the facts are in evidence and are analyzed In any event, the Charging Party should have the right to make a record in support of the allegation and generally have the issue litigated to decision The General Counsel's motion to withdraw the 8(b)(3) allegations is denied I further conclude that the record is sufficient to resolve these allegations, particularly since there is no real dispute concerning the material facts On the record as a whole, including my observation of the witnesses, briefs, and arguments of counsel, I issue the following FINDINGS OF FACT AND CONCLUSIONS OF LAW I JURISDICTION The Charging Party, the Sheet Metal Contractors Labor Relations Council of Iowa, Inc , Cedar Rapids Chapter (herein the Council) is an organization of em- ployers who have places of business in the State of Iowa and who are engaged in the manufacture, fabrication, as- sembly, installation and construction of sheet metal prod- ucts which exists in part for the purpose of representing the employer members in negotiating and administrating collective-bargaining agreements with the Respondent herein Annually, the Council members collectively pur- chase and receive at their various facilities in Iowa di- rectly from points outside the State of Iowa goods, prod- ucts, and materials valued in excess of $50,000 It is stip- ulated by the parties, and I find, that the Council is, and at all times material has been, an employer engaged in Rules Under the Board s Rules, the complaint, or a portion of It may be withdrawn by the Regional Director who issued It prior to hearing In such event, the withdrawal is subject to administrative review by the General Counsel interstate commerce within the meaning of Section 2(2), (6), and (7) of the Act Ii THE LABOR ORGANIZATION INVOLVED Sheet Metal Workers' International Association, Local Union No 263 (the Union or the Respondent) is admit- ted to be and I find is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A The Facts The Council and the Union have had a bargaining re- lationship since at least 1971, and have negotiated succes- sive collective-bargaining agreements The most recently expired agreement between the parties was effective from May 1, 1981, through April 30, 1983 Negotiations for a successor agreement commenced in the spring of 1983 4 and focused primarily on economic issues Specifi- cally, the Council members wanted a substantial reduc- tion in wage and benefit costs, which the Union was willing to give but not to the extent demanded by the Council In addition to the economic issues, there were other matters discussed including the Council's proposal not to include a clause providing for interest arbitration during negotiations for the next successor contract In brief, the Council's position was to delete the inter- est arbitration clause which had been included in previ- ous agreements and to resolve negotiation disputes "at the local level " In presenting this proposal to the Union, the Council took the position that interest arbitration (in the contract at art X, sec 8) is not a mandatory subject of bargaining The Union argued that the interest arbitration clause should remain in the new collective-bargaining agree- ment, as it had been in other agreements for the past 11 years, because such had the beneficial effect of alleviat- ing strikes Dennis Hogan, the Council's executive director, esti- mated that the matter of interest arbitration took up no more than 5 minutes during approximately 30 hours of negotiations This estimate was not questioned by Amy Sconyers Jr, the Respondent's business manager and principal spokesman Since the parties were unable to reach final agreement, the outstanding issues were submitted to the National Joint Adjustment Board pursuant to the provisions of ar- ticle X, section 8 of the expiring collective agreement There were 18 unresolved Issues set forth on the submis- sion form, 10 of which were resolved prior to presenta- tion ks to the interest arbitration issue, the Union's posi- tion was to retain article X, section 8, and the Council's position was "Delete-Local problem Management agrees only to be bound to the NJAB on mandatory sub- jects of bargaining, article X, section 8 is a permissive bargaining subject" On May 23 the parties argued orally before the Joint Board Hogan testified that his argument basically consisted of reading his brief The Union also 4 All dates are in 1983 SHEET METAL WORKERS LOCAL 263 (SHEET METAL CONTRACTORS) 45 submitted a letter of memorandum but the argument of Sconyers was mostly in response to Hogan. Although the arguments of both were primarily directed to the economic issues, Hogan did state in his brief and to the Joint Board, inter alia: ARTICLE 10 [sic] SECTION 8—Management agrees only to be bound to the NJAB on mandatory subjects of bargaining; Article 10, Section 8 is a per- missive subject of bargaining. We will not negotiate this permissive subject of bargaining. On June 6 the Joint Board issued its first decision re- solving the outstanding issues and thereafter on June 24 and July 15 issued clarification decisions. The initial and subsequent decisions, insofar as material to this matter, included the determination that the interest arbitration clause should be in the contract. The Council then prepared a collective-bargaining agreement, without the interest arbitration clause and submitted it to the Union for execution but the Union has refused to sign it absent the article X, section 8. The parties, however, have been abiding by all the terms agreed to by them in negotiations and resolved for them by the Joint Board. By its nature, article X, section 8 would not come into play until at or near the expiration of the agreement. B. Analysis and Concluding Findings Interest arbitration generally, and the clause involved here specifically, have been held a nonmandatory subject of bargaining. However, parties may agree to interest ar- bitration and within limit, such is enforceable. That limit is the subject matter which the parties agree to arbitrate. Thus in NLRB v. Sheet Metal Workers, Local 38, 575 F.2d 394 (2d Cir. 1978), enfg 231 NLRB 699 (1977), in- sistence to impasse on a clause substantially identical to the one here was violative of Section 8(b)(1)(B) and (3). The court went on to note that while interest arbitration of mandatory subjects is permissible, although not itself a mandatory subject of bargaining, interest arbitration as to nonmandatory subjects "is void as contrary to public policy." And in Sheet Metal Workers Local 14 v. Aldrich Air Conditioning, 717 F 2d 456 (8th Cir. 1983), the court held that interest arbitration may not itself be the subject of arbitration lest the bargaining system be self-perpetuat- ing. "[Mil Interest arbitration clause is unenforceable In- sofar as it applies to the inclusion of a similar clause in the new collective bargaining agreement." 717 F.2d at 459. To summarize, interest arbitration is a nonmandatory subject of bargaining which, even if agreed to, is unen- forceable insofar as it purports to resolve the inclusion of an interest arbitration in a successor collective-bargaining agreement. Parties may agree to arbitrate disputes arising during the course of negotiations but those agreements are binding and enforceable only to the extent that man- datory subjects are resolved. While the parties may arbi- trate nonmandatory subjects, for such does not appear unlawful, either party may, with impunity, withdraw from the proceeding at any time. Thus here, article X, section 8 of the expiring collec- tive-bargaining agreement was valid and enforceable only as to mandatory subjects of bargaining. The Union could not enforce this clause against the Council as to nonmandatory subjects including the Council's refusal to include it in a successor collective-bargaining agreement. The Union argues that by submitting the various issues in dispute to the Joint Board pursuant to article X, sec- tion 8, the Council waived its defense—that it agreed to arbitration of the clause. However, since interest arbitra- tion of nonmandatory subjects is unenforceable, the Council could withdraw its consent at any time. Beyond that, it is clear that the Council did not waive its contention that interest arbitration is a nonmandatory subject of bargaining about which it would not negotiate. It so stated in negotiation sessions with the Union, it so stated on the submission form and it so stated to the Joint Board in its brief and oral argument. The Council's position could not be more clear—that it would not ne- gotiate a successor interest arbitration clause. The Joint Board therefore acted beyond its authority when it or- dered the parties to include in their successor collective- bargaining agreement article X, section 8. And it is clear from the testimony and stipulation of the parties that the Respondent did in fact insist upon in- clusion of article X, section 8 in the successor agreement and now refuses to execute the contract agreed to be- tween the parties, including those provisions set by the Joint Board, absent the article X, section 8. The Re- spondent is therefore failing and refusing to execute an agreed-to collective-bargaining agreement and has insist- ed to impasse upon a bargaining scheme the effect of which is to force the Council to accept representatives for the purposes of collective bargaining. In the motion to dismiss, supra, the General Counsel and the Respondent contend that the Union's insistance on article X, section 8 and its refusal to execute the col- lective-bargaining agreement is not a violation of Section 8(b)(3) inasmuch as that clause was part of a proposal package. While a party may not bargain to impasse over a nonmandatory subject, one may submit a nonmanda- tory subject along with others and if it is rejected, may alter its proposals on the mandatory subjects, even if ten- tatively agreed to. Such was the Board's holding in Good GMC, 267 NLRB 583 (1983). In that case, the nonmandatory subject insisted on by the respondent was found not to be an independent matter but was "part of a package proposal." Thus, when the other party refused it and the nonmandatory subject was taken from the bargaining table, the propo- nent was free to alter the tentatively agreed-to proposals on the mandatory subjects. The Board concluded that given the nature of the nonmandatory subject and the bargaining stance of the parties there was no meeting of the minds absent agreement on the total package. There- fore there was no violation of the Act in the respond- ent's refusal to sign the contract without the inclusion of the nonmandatory subject. Good however is factually distinguishable from the in- stant matter. Here, article X, section 8 was not part of a package except in the broadest sense. True it was one 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD item submitted to the Joint Board. But it was really inde- pendent of the other matters in issue. And the Council took position that the clause was permissive, should be deleted from the future contract, and it would not nego- tiate concerning the matter. The Joint Board could easily have agreed with the Council without altering any other item it decided or those already agreed to In Good, the nonmandatory subject related to disposi- tion of the discharge of a unit employee by the compa- ny's predecessor. This was an item which had economic consequences to the company. The Board found that during negotiations resolution of this issue was a predi- cate for resolution of other economic issues. It was therefore related to and not independent of the other proposals. Thus it could not be found that there was agreement on those other terms. Further, on the facts in Good, the Board concluded the negotiators did not have the authority to bind the principals and therefore never agreed to a total contract While arguing that article X, section 8 was "part of a package," the Union has not suggested in what manner any of its other proposals might have been altered as a quid pro quo for accepting or rejecting interest arbitra- tion. Its total argument was that interest arbitration is a good idea. Indeed, the nature of interest arbitration is such that how it would relate to economic or other issues is not readily apparent. In short, I conclude that the clause insisted on by the Respondent became part of the Joint Board's decision through an unenforceable simi- lar clause in the predecessor contract. Proposal of article X, section 8 was not "part of a package." And there ulti- mately was agreement on all other issues. Accordingly, I conclude that by insisting to impasse upon an interest arbitration clause and by refusing to exe- cute a collective-bargaining agreement containing all the fruits of negotiation except an interest arbitration clause, the Respondent has violated Sections 8(b)(1)(B) and 8(b)(3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices found above, occurring in connection with the business of the members of the Council and the Respondent's representation of employ- ees of employers in an industry affecting interstate com- merce, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce V. REMEDY Having concluded that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom, and take certain affirmative action including executing the collective-bargaining agreement negotiated between the parties along with those matters ordered by the Joint Board but without the article X, section 8. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed 5 ORDER The Respondent, Sheet Metal Workers' International Association, Local Union No. 263, its officers, agents, and representatives, shall 1 Cease and desist from (a) Refusing to bargain in good faith with the Council by insisting to a point of impasse, as a condition of reaching a new collective-bargaining agreement on a continuation of the nonmandatory subjects of bargaining contained in article X, section 8 (interest arbitration) of the bargaining agreement which expired on April 30, 1983. (b) Restraining or coercing the Council in the selection of their representatives for the purposes of collective bargaining by insisting on the continuation in a new bar- gaining agreement of the provisions contained in article X, section 8, of the collective-bargaining agreement which expired on April 30, 1983. (c) Insisting on compliance with, or attempting to en- force, the award of the National Joint Adjustment Board of June 6, 1983, as clarified, insofar as that award pro- vides for inclusion in a new collective-bargaining agree- ment between the Respondent Union and the Council ar- ticle X, section 8 of the agreement which expired on April 30, 1983. (d) In any like or related manner restraining or coerc- ing the Council in the selection of its bargaining repre- sentatives for the purposes of collective bargaining, or in any like or related manner refusing to bargain collective- ly with the Council by insisting on the inclusion in the collective-bargaining agreement or proposals not related to wages, hours, and other terms and conditions of em- ployment 2. Take the following affirmative action to remedy the unfair labor practices found herein and to effectuate the policies of the Act. (a) Notify the Council that the Respondent Union will not insist to impasse, as a condition of a new collective- bargaining agreement on continuation of the provisions in article X, section 8, of the bargaining agreement, which expired on April 30, 1983. (b) Execute the collective-bargaining agreement sub- mitted to it by the Council on July 18, 1983, which em- bodies all terms agreed to by the parties and ordered by the National Joint Adjustment Board except article X, section 8. (c) Post at Respondent Union's offices and meeting halls copies of the attached notice marked "Appendix." 5 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 5 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" SHEET METAL WORKERS LOCAL 263 (SHEET METAL CONTRACTORS) 47 Copies of the notice, on forms provided by the Regional Director for Region 18, after being signed by the Re- spondent Union's representative, shall be posted by the Respondent Union immediately on receipt and main- tained for 60 consecutive days in conspicuous places in- cluding all places where notices to members are custom- arily posted Reasonable steps shall be taken by the Re- spondent Union to ensure that said notices are not al- tered, defaced, or covered by any other material (d) Sign and mail sufficient copies of the notice to the Regional Director for posting by the Council and its members, if they be willing, the notice to be posted in all locations where notices to employees are customarily posted (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties were represented by counsel and were allowed to call, examine and cross-ex- amine witnesses, it has been found by the National Labor Relations Board that we have violated the National Labor Relations Act in certain respects We have been ordered to cease such activity, to post this notice, and to abide by its terms WE WILL NOT refuse to bargain in good faith with Sheet Metal Contractors Labor Relations Council of Iowa, Inc, Cedar Rapids Chapter, by insisting to a point of impasse, as condition of reaching a new collective-bar- gaining agreement, on the continuation of the nonmanda- tory subjects of bargaining contained in article X, section 8 (interest arbitration), of the bargaining agreement which expired on April 30, 1983 WE WILL NOT restrain or coerce Sheet Metal Contrac- tors Labor Relations Council of Iowa, Inc , Cedar Rapids Chapter, in the selection of their representatives for the purposes of collective bargaining by insisting on the continuation in a new bargaining agreement of the provisions contained in article X, section 8 of the bar- gaining agreement which expired on April 30, 1983 WE WILL NOT insist on compliance with, or attempt to enforce, the award of the National Joint Adjustment Board of June 6, 1983, insofar as that award provides for interest arbitration in a new collective-bargaining agree- ment between us and Sheet Metal Contractors Labor Re- lations Council of Iowa, Inc, Cedar Rapids Chapter WE WILL NOT in any like or related manner restrain or coerce Sheet Metal Contractors Labor Relations Council of Iowa, Inc, Cedar Rapids Chapter in the selection of their bargaining representatives for the purposes of col- lective bargaining, or in any like or related manner refuse to bargain collectively with Sheet Metal Contrac- tors Labor Relations Council of Iowa, Inc , Cedar Rapids Chapter by insisting upon the inclusion in the collective-bargaining agreement of proposals not related to wages, hours, and other terms and conditions of em- ployment WE WILL execute the contract which embodies all of our agreement with the Council, and those ordered by the National Adjustment Board on June 6, 1983, as clari- fied, exclusive of article X, section 8 SHEET METAL WORKERS' INTERNATIONAL ASSOCIATION, LOCAL UNION No 263