Badger Meter, Inc

824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Badger Meter, Inc and District 10, International Association of Machinists and Aerospace Work ers, AFL-CIO Case 30-CA-6621 16 October 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS The charge in this proceeding was filed 24 July 1981 by District 10, International Association of Machinists and Aerospace Workers, AFL-CIO (hereafter Union) alleging that the Respondent, Badger Meter, Inc , violated Section 8(a)(5) and (1) of the National Labor Relations Act by making certain unilateral changes The General Counsel of the National Labor Relations Board, by the Re gional Director for Region 30, administratively de ferred action on the charge pending arbitration of the underlying dispute pursuant to the parties' col lective bargaining agreement On 1 November 1982 Arbitrator Howard S Bellman issued his award re solving the dispute in favor of the Respondent The Regional Director declined to defer to that award and issued a complaint on 3 March 1983 alleging that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act On 1 August 1983 all parties to the proceeding executed a stipulation of facts, waived a hearing and decision by an administrative law judge, and submitted the case to the Board for findings of fact, conclusions of law, and an order, based on a record consisting of the arbitration s record and award, the Regional Director s complaint and the Re spondent s answer the formal documents, and the stipulation of facts On 8 December 1983 the Board approved the parties stipulation and ordered that the proceeding be transferred to the Board The General Counsel and the Respondent filed briefs and answering briefs The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel On the basis of the stipulation of facts, the briefs, and the entire record in this proceeding, the Board makes the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent, a Wisconsin corporation with a factory located at West Brown Deer Road Mil waukee, Wisconsin, is engaged in the production and nonretail sale of flow measurement devices valves, and electronic test equipment During the 12 months preceding the execution of the stipula tion the Respondent sold and shipped products valued in excess of $50 000 directly to points out side the State of Wisconsin The parties stipulated and we find that the Re spondent is engaged in commerce within the mean ing of Section 2(2), (6), and (7) of the Act and that it will effectuate the purposes of the Act to assert jurisdiction herein II THE LABOR ORGANIZATION INVOLVED The parties stipulated and we find that District 10, International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organ' zation within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Facts The Union and the Respondent have been parties to successive collective bargaining agreements coy enng the Respondent s production and mainte nance employees at the Milwaukee factory The parties' 1975-1976 agreement contained a detailed management rights clause 1 During negotiations for ' The 1975-1976 clause provided as follows Article II—Functions of Management (a) Except as otherwise specifically provided in this Agreement the Company has the sole and exclusive right to exercise all the nghts or functions of management (b) Without limiting the generality of the foregoing and subject to the other provisions of this Agreement as used herein the term Rights of Management includes The right to manage the plant the right to direct the working forces including the right to hire promote or transfer any employee subject to the Seniority provi mons of Article W the location of the business including the estab lishment of new plants or departments divisions or subdivisions thereof the relocation or closing of plants departments divisions or subdivisions thereof the determination of products to be manufac tured or sold or services to be rendered or supplied the deternuna lion of the layout and the machinery equipment or materials to be used in the business the determination of the size and character of inventories the determination of financial policy including account mg procedures prices of goods or services rendered or supplied and customer relations the determination of the organization of any de partment division or sub division thereof deemed appropriate by the Company the selection promotion or transfer of employees to su pervisory or other managerial positions or to positions outside of the bargaining unit not to the prejudice of any employee who may wish to decline the promotion or transfer the determination of the size of the working force the allocation and assignment of work to employ ees in a manner which is not in conflict with any of the provisions of the contract the determination of policy affecting that selection or training of new employees the establishment of quality and quantity standards as provided in the contract and the judgment of the quality and quantity of workmanship required subject to the grievance pro cedure of Article III the control and use of the plant property ma tenal machinery or equipment the determination of safety health and property protection measures for the plant in keeping with ap propnate laws the establishment modification and enforcement of reasonable plant rules or regulations which are not in conflict with any of the provisions of this Agreement the introduction of new un Continued 272 NLRB No 123 BADGER METER INC 825 the 1976-1978 agreement, the Union proposed to delete definitional paragraph (b) from the manage ment rights clause 2 The Respondent countered a by proposing to delete paragraphs (b) and (c) from the clause with the understanding that all the rights listed in paragraph (b) are inherent rights and by deletion of paragraph (b) the Company is in no way eroding the reserved rights concept ' This counterproposal was accepted by the union nego tiators and ratified by the union members Accord ingly, the parties deleted paragraphs (b) and (c) from their 1976-1978 agreement and relettered paragraph (d) to (b) 4 The Respondent and the Union readopted the abbreviated management rights clause in their 1978-1981 collective bargain ing agreement The parties 1978-1981 agreement covered, inter aim, unit members performing janitorial services at the Respondent s administration building The par ties discussed the possibility of subcontracting 5 this janitorial work to an outside cleaning service on several occasions during the term of the 1978-1981 agreement 6 In June 1981 following notice but not bargaining the Respondent transferred the unit janitors to other positions and subcontracted all janitorial work at the administration building to the outside cleaning service The Union responded by proved or different production maintenance service or distribution methods or facilities or a change in existing methods or facilities the placing of production service maintenance or distribution work with outside contractors or subcontractors the determination of the amount of supervision necessary the right to terminate merge or sell the business or any part thereof (c) It is not intended that this provision shall result in any action by the Company which would be inconsistent with the historic applica tic:in of these functions (d) Furthermore it shall be the policy of the Company to continue to review with the Union Committee on a frequent and periodic basis all matters of concern to the Union Committee and to the em ployees 2 In a memo dated 22 September 1976 from the Union to the Respond ent the first sentence stated that the Union proposes to delete item (b) in Article II Functions of Management and re letter (c) and (d) accord ingly 3 The counterproposal was contained in a memo dated 8 October 1976 from the Respondent to the Union 4 The 1976-1978 clause provided as follows Article II—Functions of Management (a) Except as otherwise specifically provided in this Agreement the Company has the sole and exclusive right to exercise all the rights or functions of management (b) Furthermore it shall be the policy of the Company to continue to review with the Union Committee on a frequent and periodic basis all matters of concern to the Union Committee and to the em ployees 5 It is undisputed that the Respondent s interest in subcontracting the janitorial work was motivated by economic considerations 6 The parties 1979 discussions did not lead to any change in the Re spondent s practice of using unit employees to clean the administration building The Union did not object in January 1980 when the Respondent began using the outside service to clean its computer room on the second floor of the administration building The Union filed a grievance in April 1980 however when the outside cleaning service started cleaning the entire second floor The Respondent resolved this grievance by limiting its use of the outside service to the computer room filing a grievance on 8 June 1981 alleging that the transfers and subcontracting violated the 1978-1981 collective bargaining agreement The Respondent's answer to this grievance denied any contract viola tion and maintained that the contract explicitly per mitted it to make the disputed changes The Union filed an unfair labor practice charge with the Board on 24 July 1981 contending that the Re spondent s unilateral changes violated Section 8(a)(5) and (1) of the Act The Regional Director administratively deferred processing the unfair labor practice charge pending arbitration of the Union's 8 June 1981 grievance Following delay in selecting an arbitrator the parties contested the grievance at a hearing on 1 July 1982 before Arbi trator Howard Bellman In his award dated 1 November 1982 the arbitra tor found that the detailed management rights clause in the parties 1975-1976 contract 7 provided that the Respondent s rights included the place ment of subcontracting The arbitrator also found that, when the Union adopted the Respondent s 8 October 1976 counterproposal it agreed to define the general management rights clause in the 1976- 1978 8 contract as including all the specific rights set out in the 1975-1976 detailed management rights clause The arbitrator further found as fol lows [T]he parties' 1976 agreement that the Compa ny s inherent rights included all those previ ously specified at (b) of the management s rights provision must continue to be respected At the very least this agreement should not be assumed to lose effect because it has not been continually reaffirmed Its expiration re quires an agreement to that effect The arbitrator concluded that the Respondent was entitled by negotiated agreement to implement the June 1981 transfers and subcontracting According ly, he held that those actions did not violate the 1978-1981 collective bargaining agreement and he dismissed the grievance The General Counsel de chned to defer to this award and issued complaint on 3 March 1983 alleging that the Respondent s June 1981 transfers and subcontracting constituted unilateral changes in violation of Section 8(a)(5) and (1) of the Act The case is before the Board pursuant to our 8 December 1983 Order approving the parties stipulation 7 See fn I 8 See fn 4 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B Contentions of the Parties The General Counsel contends that the Board should not defer to the arbitration award because the arbitrator did not consider and rule on the Union's 8(a)(5) charge As to the merits the Gener al Counsel argues that the parties 1978-1981 col lective bargaining agreement did not permit the Respondent to make the June 1981 transfers and subcontracting The General Counsel further argues that the Union has not otherwise waived its right to bargain over the subcontracting of unit work Accordingly, the General Counsel submits that the transfers and subcontracting constituted unilateral changes in violation of Section 8(a)(5) and (1) The Respondent contends that the Board should defer to the arbitration award It submits that the arbitrator effectively decided the 8(a)(5) charge when he ruled that the parties 1978-1981 collec tive bargaining agreement authorized the Respond ent to make the tranfers and subcontracting As to the merits, the Respondent argues that the transfers and subcontracting were authorized by the collec tive bargaining agreement and therefore did not constitute unilateral changes in violation of Section 8(a)(5) and (1) C Analysis and Conclusion It is well settled that the Board will defer to an arbitration award when the proceedings appear to have been fair and regular, all parties had agreed to be bound, the decision of the arbitrator is not clear ly repugnant to the purposes and policies of the Act, Spielberg Mfg Co 112 NLRB 1080, 1082 (1955), and the arbitrator considered the unfair labor practice issue which the Board is called on to decide Raytheon Co, 140 NLRB 883 884-885 (1963) The Board will find that the arbitrator has adequately considered the unfair labor practice if (1) the contractual issue is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice Olin Corp 268 NLRB 573, 574 (1984) The General Counsel, relying on Raytheon Co, above, contends9 that the instant award does not merit deferral because Arbitrator Bellman did not 9 The General Counsel does not contest the Spielberg deferral require ments consider 1° the unfair labor practice issue First, we shall determine whether the contractual and statu tory issues are factually parallel The arbitrator was faced with the contractual question of whether the Respondent s transfers and subcontracting violated its collective bargaining agreement The Board is faced with the statutory question of whether the Respondent s actions constituted unilateral changes that violated its bargaining obligation under Sec tion 8(a)(5) The contractual and statutory issues turn on the presence or absence of contractual au thonzation for the Respondent s changes Evidence of the parties' collective bargaining agreements, bargaining history, and past practice are parallel facts that should resolve both issues Accordingly, we find that the contractual and statutory issues are factually parallel Second, we shall look to whether the parties generally presented the arbitra tor with the facts relevant to the statutory issue The stipulated record shows that the arbitrator re ceived ample documentary and testimonial evi dence as to the parties contracts, bargaining histo ry and past practice We would necessarily consid er the same facts in reaching a decision on the Union s unilateral change allegation It is not neces sary that the case have been presented the way the General Counsel might have presented it with the benefit of hindsight The Board's involvement is not in the nature of an appeal by trial de novo Ac cordingly, we find that the arbitrator has adequate ly considered the unfair labor practice because the contract and unfair labor practice issues are factual ly parallel, and the arbitrator was presented gener ally with the facts relevant to resolving the unfair labor practice 1' For the foregoing reasons we conclude that the General Counsel has not met his burden 12 of af firmatively demonstrating that the arbitrator mad equately considered the unfair labor practice herein We conclude that the arbitration has met the Spielberg and Raytheon standards for deferral We shall defer to the grievance arbitration award and dismiss the complaint ORDER The complaint is dismissed 1 ° It is undisputed that the arbitration award did not explicitly consider or resolve the statutory issue The arbitrator merely noted that the Union s grievance was also the subject of a deferred unfair labor practice charge " Olin Corp 268 NLRB 574 575 (1984) " Id at 576