Arizona Public Service Co.

National Labor Relations Board - Board Decisions

Jan 16, 1980

247 N.L.R.B. 321 (N.L.R.B. 1980)

ARIZONA PUBLIC SERVICE COMPANY
Arizona Public Service Company and International
Brotherhood of Electrical Workers, Local Union
No. 387, AFL-CIO. Case 28-CA-5193
January 16, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On September 20, 1979, Administrative Law Judge
Timothy D. Nelson issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the Union and the
General Counsel filed briefs in opposition to Respon-
dent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Arizona Public Service
Company, Phoenix, Arizona, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
' Member Penello agrees that Respondent violated Sec. 8(aXS5) by failing
and refusing to bargain over a clause to replace the subcontracting restrictions
contained in the parties' collective-bargaining agreement after those restric-
tions had been declared in conflict with Sec. (e) and therefore invalid.
However, Member Penello does not adopt all of the rationale of the
Administrative Law Judge relating to whether the alleged "zipper clause" of
the contract relieved Respondent of its statutory duty to bargain. Member
Penello sees no need to reach that issue since he finds that Respondent's duty
to bargain arose from the contract itself. Thus, art. XII expressly provided
that, "[iln the event that any provision of this Agreement is found to be
invalid as a matter of law, either party may request the other in writing to
reopen said conflicting provision for further negotiation." Interpreting the
contract as a whole, Member Penello finds that the explicit wording of this
reopener clause takes precedence over the more general wording of the alleged
zipper and management-rights clauses relied on by Respondent, and obligated
Respondent to negotiate with the Union concerning a replacement subcon-
tracting provision.
I In setting forth his proposed remedy, the Administrative Law Judge
advised the Union of alternative means by which it could enforce its rights.
We find that it was unnecessary to offer such advice, and therefore place no
reliance on that portion of the Decision.
However, we do not agree with Respondent's contention that the Adminis-
trative Law Judge demonstrated bias and prejudice in this discussion. We are
satisfied that he gave thorough and objective consideration to all of the
247 NLRB No. 54
arguments presented by the parties, and a careful examination of the record as
a whole reveals no basis for Respondent's allegation.
DECISION
STATEMENT OF THE CASE
TIMOTHY D. NELSON, Administrative Law Judge: This
case was heard pursuant to due notice on May 16, 1979,' in
Phoenix, Arizona. It arises under Section 8(a)(5) and (1) of
the National Labor Relations Act, as amended, 29 U.S.C. §
151, et seq. (Act). There is the following pertinent procedur-
al history: A charge was filed by International Brotherhood
of Electrical Workers, Local Union No. 387, AFL-CIO
(herein called the Union), against Arizona Public Service
Company (herein called the Company) on January 16.
Following an investigation of the Union's charge, the Acting
Regional Director for Region 28 of the National Labor
Relations Board (herein called the Board) issued a complaint
and notice of hearing on March 30. Due service of the timely
charge and complaint are established in the formal papers
and are admitted by the Company.
The Issues
The issues may not be expressed briefly except at the risk
of over-simplification. The central question presented is
whether the Company was under an obligation, during the
term of a pending collective-bargaining agreement, to
bargain with the Union about subcontracting where an
existing clause in the parties' contract pertaining to subcon-
tracting had been voided as being in violation of Section 8(e)
of the Act. Resolution of that question requires consider-
ation of the meaning and impact of certain other clauses in
the parties' contract pertaining to the right of "further
negotiations" in the event that any clause be found unlawful,
as well as the meaning and impact of "management-rights"
and alleged "zipper" clauses.
Timely briefs were filed by the Company and the General
Counsel. Upon the entire record,2 including my consider-
ation of the parties' briefs, and upon my observation of the
witnesses' demeanor, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the answer admits, and I find that
the Company is an Arizona corporation engaged in business
as a public utility furnishing electrical power and natural gas
services to customers within the State of Arizona. In the
representative year preceding the issuance of the complaint,
the Company derived gross revenues from said operations in
excess of $250,000 and, during the same period, caused to be
transported goods valued in excess of $50,000 to its various
operations in Arizona directly from suppliers outside Arizo-
na.
All dates hereinafter are in 1979 unless otherwise indicated.
The General Counsel's unopposed motion to correct record is hereby
granted with brief supplemental corrections which I have noted sun sponte.
321
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that
the Union is now, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of the
Act.
IIl. THE ALLEGED UNFAIR LABOR PRACTICES
A. Summary and Preliminary Findings
The material facts are not significantly disputed by the
parties as is reflected in the Company's answer to the
complaint as well as in a written stipulation of the parties
received at the hearing as Joint Exhibit 6. Other Joint
Exhibits consisting chiefly of correspondence between the
parties bearing on the instant matter were received into
evidence. Testimony was heard only concerning what
happened at a meeting between the parties on February 12 at
the Company's offices involving Charles Nelson, the Com-
pany's industrial relations manager, Frederick Steiner, the
Company's attorney, Clyde Bowden, the Union's business
manager, and Doyle Sweat, the Union's attorney. All but
Steiner testified concerning the events of that brief meeting
and their testimony is only marginally in conflict and, as to
material points, it is harmonious.
The record discloses the following undisputed facts: The
Company and the Union have had a continous collective-
bargaining relationship since at least 1947 covering a
historically recognized collective-bargaining unit consisting
of employees performing any of scores of jobs set forth in the
wage appendix schedule of the parties' successive bargaining
agreements. A cursory review of that schedule in the current
agreement between the parties effective between April 1,
1978, and April 1, 1980, reveals that the unit consists
generally of inside and outside production, maintenance,
service, and construction employees, as well as automotive
mechanics, helpers, truckdrivers, tree trimmers, dispatchers,
warehousemen and employees in a variety of other job tasks
and descriptions.
From the inception of the parties' bargaining relationship,
successive collective-bargaining agreements, including the
current contract, have included the following clause (cap-
tioned art. VI in the current contract):
Union Activities--Contract Work
Section 4. In case the Company shall contract any
work which would be covered by this Agreement, such
as the construction of electric lines, installations of
switchgear, substation equipment, powerhouse equip-
ment, gas lines, etc., the Company shall, before award-
ing such a contract, advise the contractor that such
work is to be done under the terms and conditions of
this Agreement and/or such other agreement as may be
entered into between the contractor and bona fide local
unions or international organizations affiliated with the
American Federation of Labor-Congress of Industrial
Organization. The Company shall give the Union the
name of the contractor or contractors receiving such
contracts.
Since about 1949, the parties' successive collective-bar-
gaining agreements have also included the same language
contained in the current contract's article XII which reads
as follows:
Conflicting Law
Section 1. It is the intention of the parties that no
provisions of this Agreement shall be in conflict with
any law of the United States of America or the States of
Arizona or New Mexico or any lawful Presidential
Executive Order; but, if any article, section, clause, or
provision of this Agreement shall be in conflict with, or
contrary to, any such law or Presidential Executive
Order, or be for any other reason invalid, such conflict
or invalidity shall not affect any other article, section,
clause or provision of this Agreement, which can be
given effect without such conflicting or invalid provi-
sion. In the event that any provision of this Agreement
is found to be invalid as a matter of law, either party
may request the other in writing to reopen said
conflicting provision for further negotiation.
The current contract between the parties also contains in
article VIII a management-rights clause which reads as
follows:
Management
Section . The management of the Company and the
direction of its working force, including the right to
hire, suspend, or discharge for cause, together with the
right to relieve an employee from duty because of lack
of work or other legitimate reason, is vested exclusively
in the Company, except as the same may be expressly
affected by any of the provisions of this Agreement.
Finally, the current contract contains in article XI,
dealing with "Duration," a sentence at the end of that clause
which reads:
It is distinctly understood and agreed that all provious
agreements and understandings, if any, and all negotia-
tions, whether oral or written, by and between the
Company and the Union, are superseded by this
Agreement.
In November 1978 the Union filed an unfair labor practice
charge against the Company in Case 28-CA-5104, alleging,
in substance, that the Company had violated Section 8(a)(I)
and (5) of the Act by failing to furnish information to permit
the Union to police compliance with the above-quoted
article VI subcontracting restrictions. Following an investi-
gation thereof, the Acting Regional Director for Region 28
dismissed the Union's charge in December 1978 concluding
in material part that the above-quoted article VI, section 4,
"is a union-signatory clause of a nature prohibited by
Section 8(e)." The Union did not exercise its right to appeal
to the General Counsel from the Acting Regional Director's
dismissal of its charge and the parties have acknowledged or
acquiesced in the conclusion that the above-quoted article
VI clause pertaining to subcontracting is in violation of
Section 8(e) of the Act. Accordingly, the correctness of the
322
ARIZONA PUBLIC SERVICE COMPANY
Acting Regional Director's conclusion is not in issue in this
matter.
On January 2, Bowden, for the Union, wrote to Nelson,
for the Company, stating in pertinent part:
As you are aware, the National Labor Relations Board,
in Case 28-CA-5104, ruled that article VI, section 4, of
our collective-bargaining agreement was in violation of
Section 8(e) of the National Labor Relations Act.
Pursuant to article XII of our collective-bargaining
agreement, the Union requests to reopen said conflict-
ing provisions for further negotiations.
Following his receipt of that letter, Nelson wrote back to
Bowden on January 12, stating in pertinent part:
While the Company is willing to meet and discuss
with the Union the consequences of this decision [i.e.,
the Acting Regional Director's dismissal of the charge]
it would appear that there is little in the way of
"negotiations" which would be appropriate at this time.
Article XII provides that no other "article, section,
clause, or provision" of the Agreement shall be affected
by such a finding of invalidity. Therefore, excluding
that portion of the contract found by the NLRB to be in
violation of Section 8(e) of the Act, article VI, section 4,
now provides that the Company, when contracting
work covered by the Agreement, shall give the Union
the name of the contractor or contractors receiving
such contracts. The Company will continue to provide
the Union with the name of any such contractor(s).
While negotiations regarding the possible modifica-
tion of the "disclosure" requirement may be appropri-
ate at this time, in light of the holding of the NLRB,
any modification of the remaining valid portions of the
contract would be premature prior to the expiration
date of the Agreement.
B. The February 12 Meeting
After the foregoing exchange of correspondence, the
parties met on February 12. The meeting was brief by all
accounts, lasting only about 15 minutes. Extrapolating from
the testimony of the three participants who testified (Nelson
for the Company and Bowden and Attorney Sweat for the
Union), but relying principally on Sweat's recall,' the
following events occurred: Bowden started by saying that he
wanted to protect his bargaining unit work and wanted some
kind of "area standards" or "union standards" clause to
replace the clause found illegal by the Acting Regional
Director. Attorney Steiner replied that he had no problem
with bargaining about the "effects, procedural effects, or
impact" of what was "left over" (i.e., "left over" from that
part of article VI, sec. 4, which the Acting Regional
Director's ruling had invalidated). Steiner specifically men-
tioned in this regard that he believed that the last sentence of
that section' had not been invalidated by the Acting
Regional Director.
' None of the three attempted to give a comprehensive "start-to-finish"
rendition of the meeting. Sweat impressed me as having the clearest
recollection. Nelson's recollection was more impressionistic, perhaps because
Attorney Steiner was doing the talking for the Company at the meeting.
Steiner went on to say, however, that he would not
renegotiate a clause to replace the one which had been
invalidated. He argued that the contract barred such
renegotiations because to do so would "erode" manage-
ment's rights set forth elsewhere in the contract. Sweat
sought clarification from Steiner as to what he had in mind
in his offer to bargain about "procedural impact and
effects," but Steiner's reply was nonspecific.
Steiner also sought to persuade the Union to defer the
issue until the contract expired, adding that the issue of
subcontracting could then be fully explored, and also
pointing out that pursuing the question now would be
expensive and time-consuming for the Union. Sweat again
pressed Steiner by stating his impression that Steiner was
refusing to bargain "on a union standards clause." Steiner
replied: "We'll bargain only with you with respect to
procedural impact and effects." Before the meeting, at the
Union's request, Sweat had drafted a proposed "area
standards" clause to replace the existing subcontracting
restrictions declared invalid by the Acting Regional Direc-
tor. Confronted with Steiner's statement on February 12
affirming Nelson's earlier letter of position to the Union, the
Union concluded that the Company would not consider any
proposal from the Union which had the effect of restricting
the Company's right to subcontract unit work. Accordingly,
the specific clause which Sweat had drafted was never
tendered to the Company.
C. Further Background
It was stipulated by the parties (Jt. Exh. 6) that article XII
of the contract (the "savings" and "reopener" clause) had
never before been invoked nor interpreted by the parties, nor
had the parties ever discussed "[w]hat effect, if any, other
provisions of the collective-bargaining agreement would
have upon the language of article XII." It was further
stipulated that the Company "on an annual basis regularly
subcontracts out work covered by the agreement, which
subcontracted work annually exceeds 500,000 in value."
This latter stipulation is interpreted to mean that work
performed or capable of being performed by members of the
bargaining unit covered by the parties' contract has been,
and continues to be, subcontracted by the Company.
IV. ANALYSIS AND CONCLUSIONS
Subcontracting of bargaining unit work is a mandatory
subject about which an employer must bargain with the
labor organization representing the bargaining unit as the
Supreme Court held in Fibreboard.' Consistent with this
mandate, the parties, through successive labor agreements,
had bargained specific terms, placing the limits and condi-
tions reflected in article VI, section 4, on the right of the
Company to subcontract unit work. Their contractual
agreement in this area was declared unlawful under Section
8(e) of the Act. Faced with this development, the Company
took the position that it was not obliged to meet and
' Referring to the last sentence of art. VI, sec. 4, which reads: "The
Company shall give the Union the name of the contractor or contractors
receiving such contracts."
'Fibreboard Paper Products Corp. v. N. L R.B. 379 U.S. 203 (1964).
323
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiate with the Union for the purpose of attempting to
reach agreement on a lawful "replacement" clause. More
specifically, the Company's position, as reflected in Nelson's
letter to the Union of January 12 and in Steiner's remarks at
the February 12 meeting, was that the Company would not
negotiate about any proposal which would erode the
Company's claimed right under the management-rights
clause (art. VIII) to subcontract as it saw fit.
While not disputing the abstract proposition that subcon-
tracting is a mandatory bargaining subject, the Company
argues, in essence, that the Union waived the right to
bargain limitations on or conditions to the Company's right
to subcontract. This supposed waiver by the Union is to be
inferred, so the Company argues, from the "saving" lan-
guage of article XII, providing for continuation in effect of
any contractual provisions not affected by the voiding as
unlawful of any other contractual provision. Continuing its
reasoning, the Company asserts that the management-rights
clause (art. VIII) therefore remains in effect, notwithstand-
ing the voiding of the article VI subcontracting clause. That
management-rights clause states in pertinent part that "[t]he
management of the Company . . . is vested exclusively in
the Company, except as the same may be expressly affected
by any of the provisions of this Agreement." Placing
emphasis on that latter phrase, the Company asserts that the
only pertinent restrictions on its inherent right to "manage,"
including by subcontracting, were contained in the now void
article VI language. Accordingly, the Company concludes
that the still-effective management-rights clause is no longer
"expressly affected" by any valid subcontracting restrictions.
Based on the foregoing interpretation, the Company main-
tains that it need not, during the term of the current labor
agreement, negotiate about proposals which would under-
mine the (now unrestricted) management right to engage in
subcontracting. Since the Union's proposed "area stan-
dards" clause necessarily would "limit" or "affect" the
Company's right to subcontract," the Company need not
agree to discuss that proposal or "[a]ny proposed union
standards provision [which] would .. limit the Company's
right to contract work and so 'affect' its management rights
under Article VIII."'
As is evident from a restatement of the Company's
position, a highly technical and attenuated process of
reasoning must be embraced in order to infer that the Union
waived its statutory right to bargain over subcontracting
practices after the existing subcontracting clause was de-
clared unlawful. I conclude that the Company's position is
without merit as involving both a strained and distorted
interpretation of the contract language itself and an overly
I Whether the Company's supposition is correct that the Union's proposal
necessarily would limit or affect its subcontracting prerogatives is not
material. The Union's proposal was not received in evidence and the
Company never saw it. As is concluded hereafter, it was the Company's
anticipatory refusal to entertain any proposal having such an effect, based on
its meritless "waiver" defense, which violated its duty to bargain in good faith
over an acknowledged mandatory bargaining subject.
' Extracting from the Company's summary of its position contained at Co.
br., p. 14.
' Gary-Hobart Water Corporation. 210 NLRB 742, 744 (1974). and cases
cited at fn. 9, enfd. 210 F.2d 284 (7th Cir. 1975).
' This is not to imply that contractual "reopener" language is essential to
preservation of the right to bargain in midcontract about the subject matter of
a clause which has been declared invalid. The question, unnecessary to decide
herein, of the significance of contractual silence on the subject of reopening in
broad view of what constitutes a labor organization's waiver
of statutory rights.
Taking the latter issue first, the Board, with court
approval, has repeatedly held that waiver by a union of the
right to bargain over a mandatory subject is not to be
"readily inferred" and will not be inferred absent a "clear
and unmistakable" showing.8 Considering next the contrac-
tual language relied on by the Company in making its
"waiver" argument, it is plain that there is no language
which clearly and unmistakably commits the Union to
forfeiture of the right to bargain with the Company over
subcontracting in the event that the preexisting clause
pertaining thereto were declared unlawful. Certainly nothing
in article XII, the only provision which even discusses the
eventuality of a clause's being declared invalid, clearly and
unmistakably reflects the Union's intention to forfeit bar-
gaining on any subject covered by a provision which
becomes invalidated. To the contrary, article XII expressly
reserves to "either party" the right to request the other "to
reopen said conflicting provision for further negotiation."
Thus, if anything, an intention is manifested by that
language to preserve, rather than to forfeit, the right to
bargain about the subject covered by any clause which
should become invalidated. It is only by implication, and a
strained one at that, that the other "savings" language in
article XII might be construed so as to result in forfeiture of
the right to reopen a subject matter covered by a clause
which has been invalidated. Such an implication, especially
one which is directly contrary to "reopener" language
appearing in the same clause, does not, under any standard
of contract construction, amount to a waiver let alone a
"clear and unmistakable" one.9
Nor do the management-rights provisions of article VIII
and what the Company refers to as "zipper" language in
article XI contain language which would satisfy the "clear
and unmistakable" waiver test. Neither such clause refers to
the subject of subcontracting. And the Board, with court
approval, has regularly refused to find a clear and unmistak-
able waiver of the right to bargain over a mandatory subject
from the inclusion in a labor agreement of management-
rights and "zipper"'" language even more sweeping than that
relied on by the Company herein."
Accordingly, I find the Company's defense based on a
supposed contractual waiver by the Union of the right to
bargain over subcontracting practices to be unsupported.
The Acting Regional Director's action in declaring the
article VI, section 4, subcontracting restrictions to be
unlawful therefore did not have the effect of precluding
negotiations for a lawful "replacement" provision. To the
the event of a severable clause's being declared invalid should be resolved by
resort to the "clear and unmistakable" test. Arguably, absent bargaining
history or some other evidence indicating a contrary intention, mere "silence"
on the subject of reopening would not constitute a clear and unmistakable
waiver of the right to reopen a subsequently invalidated provision dealing with
a mandatory bargaining subject.
'° As the General Counsel correctly points out on brief, the purported
"zipper" language of an. XI appears to be more in the nature of a contractual
ban against "parol evidence" than a contractual ban against raising any
subject during the contract's term which is already addressed in the contract,
or which, by failure to so address it, is deemed waived.
" See, e.g., The Bunker Hill Company, 208 NLRB 27, 32-33 (1973), and
cases cited at ns. 17 and 18; cf. Southern Materials Ca. Inc., 181 NLRB 958
(1970), enforcement denied 447 F.2d 15 (4th Cir. 1971).
324
ARIZONA PUBLIC SERVICE COMPANY
contrary, by reference to the "reopener" language of article
XII alone, the parties committed themselves to further
bargaining about whether, and under what circumstances,
subcontracting of bargaining unit work might take place.
This same obligation exists as a matter of law where, as here,
there has been no waiver by the Union of the statutory right
to bargain over the mandatory subject of subcontracting in
the event that its existing agreement in this area were
invalidated.
It follows, therefore, that the Company's refusal, as
expressed in Nelson's January 12 letter and in Steiner's
February 12 statements, to discuss any "replacement"
provision which would undermine the Company's supposed
contractual right to engage in unrestricted subcontracting
violated Section 8(a)(5) and (1) of the Act. It does not matter
that the Company expressed a limited willingness to bargain
over the "procedural impact and effects" of the Acting
Regional Director's decision, since that narrow offer, what-
ever it may have contemplated,'" clearly did not include
bargaining over any proposal which might seek to place
limits or conditions on the subcontracting of unit work.
The Board's decision in Westinghouse Electric Corp.
(Mansfield Plant), 150 NLRB 1574 (1965), is instructive in
this latter regard. There, the Board, interpreting Fibreboard,
supra, refused to find that the employer violated Section
8(aX5) by failing to notify and bargain with the Union over
the letting of individual subcontracts of work performable by
the unit in question absent some showing of detriment to the
bargaining unit, and under circumstances where the subcon-
tracting decision was economically motivated, was no
different in scope or character from the employer's historical
practice, and the union had repeatedly sought, without
success, to obtain provisions in the parties' successive labor
agreements to limit established subcontracting policies. (Id.
at 1576-77). The Board's focus in that case, as I read it, was
on whether or not Respondent engaged in impermissible
unilateral action when it persisted in its historical subcon-
tracting practice having no definable detrimental impact on
the bargaining unit. Thus, the Board stated in language
which is pertinent to the distinction here drawn:
We do not mean to suggest that .. an employer is
any less under an obligation to bargain with the union on
request at an appropriate time with respect to such
restrictions or other changes in current subcontracting
practices as the union may wish to negotiate. But it is to
be noted that no claim is made in this case that the
Respondent has ever refused to honor a request for such
bargaining; the sole issue before us is whether the
Respondent transgressed its statutory obligation by not
consulting with the Union about each of its thousands of
: At all points up to and including the hearing herein, it seemed reasonably
clear that the Company, by offering to bargain over the "procedural impact
and effects," was referring in some less-than-clear-cut way to the manner in
which the "surviving" language of art. VI, sec. 4, might be implemented under
circumstances where the substantive restrictions on subcontracting had been
invalidated by the Acting Regional Director's decision. On brief, however, the
Company is now heard to say that the above phrase means that the Company
"is obligated to discuss any dispute over the impact and effects of its
contracting policies where unit detriment is likely to occur" (br., p. 12,
emphasis supplied); and that the Company "is prepared to discuss the impact
and effects of any subcontracting decision" (br.. p. 14). This "clarified"
position seems to be one adopted ex post facto at the leisure of counsel. It was
never so expressed to the Union, as is found above. Neither does this
annual subcontracting decisions which involved unit
work [Ibid.. emphasis supplied.]
By contrast, here the Company's continuation of its
historical subcontracting practice following the Acting
Regional Director's voiding of the existing contractual
restrictions is not under challenge as it was in Westinghouse,
supra. Rather, it is the Company's refusal to entertain any
union proposals calculated to restrict subcontracting of unit
work, proposed at an "appropriate time" (i.e., when, as
concluded above, the right to "reopen" the subject had been
triggered by the action of the Acting Regional Director),
which is attacked by the complaint. And, as the first
underscored portion of the quoted opinion in Westinghouse
makes clear, such an appropriately timed request must be
entertained by an employer without regard to whether or not
his subcontracting practices are economically motivated and
are consistent in scope and degree with historical practice."
It is because subcontracting of unit work is a matter
affecting unit employees' terms and conditions of employ-
ment (Fibreboard, supra), and because the Union made a
timely request to negotiate thereon, that the Company was
obliged to meet and negotiate on the Union's proposals.
One final argument of the Company is considered next. At
the hearing I sustained the General Counsel's objection to
the following question put by company counsel to Union
Representative Bowden:
Q. (By attorney Steiner) Is it now the union's position
that it wants only to negotiate concerning an area
standards provision?
Attorney Steiner then argued in response to the General
Counsel's objection that, "if it is the Union's position that it
will bargain only on one subject which is not open for
bargaining, then it is not the Company which is refusing to
bargain, but it is the Union which is refusing to bargain." I
ruled that such a fact, if true, "would only have relevance to
some potential future charge . . . against the Union" and
that this was not "the forum to be perfecting positions for
[the] future."
On brief, the Company argues that this ruling was
"prejudicial" to the Company's right to establish "a defense
to an 8(a)(5) charge."" Ignoring that this involves a seeming
shifting of positions, I nevertheless adhere to my ruling for
the additional reasons stated below. The cases cited by
company counsel involve situations where a union, by a
pattern of demonstrated inflexibility and rigid adherence to
contracts as originally proposed, "precluded the existence of
"clarified" position alter the conclusions set forth above. Whatever the
Company intends by the phrase in question, it adheres to the view that it need
not, during the life of the current contract, fulfill its statutory obligation to
bargain over whether, and under what circumstances, subcontracting of unit
work may occur. It is this latter position which constitutes a refusal to bargain
in good faith over a mandatory subject, thereby violating Sec. 8(a)(5) and ()
of the Act.
" Those circumstances are, however, relevant to a consideration of the
scope of remedial action which the Company must take. See "The Remedy,"
inra.
'' Co. br..p. 5, citing Roadhome Construction Corp., 170 NLRB 668 (1968);
Continental Nut Co.. 195 NLRB 841 (1972).
325
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a situation in which [the employer's] good faith could be
tested."" Here. exactly the opposite is the case. It was the
Company, whose adamant rejection through Nelson's letter
of January 12 and Steiner's comment on February 12 of any
possibility of bargaining over a proposal to "replace" the
invalidated subcontracting article, which "precluded the
existence of a situation" in which the Union's good faith
could be tested. The Company never sought to bargain over
a replacement proposal. It preemptively declared the subject
to be "out of bounds" before the Union ever had an
opportunity to advance a specific proposal. Under those
circumstances, it can scarcely be "prejudicial'"" to the
Company's defense to preclude inquiry into the subjective
intentions of the Union's negotiators about a proposal which
they never tendered to the Company.
v. THE REMEDY
The General Counsel limits his remedial request to an
order requiring the Company to bargain with the Union over
the "substance" as opposed to merely the "impact and
effects" of the Company's subcontracting practices. I take
this to mean that the Company should be ordered to bargain
in good faith about whether, and under what circumstances,
the Company might engage in subcontracting of bargaining
unit work. In essential agreement with the General Counsel,
I conclude that the gravamen of the instant complaint is that
the Company has wrongfully placed limits on the scope of
bargaining over the subcontracting issue. Accordingly, my
recommended Order is designed to require that the Compa-
ny cease and desist from insisting that bargaining take place
only on the subject of what it calls the "impact and effects"
of the Acting Regional Director's voiding of the existing
article VI, section 4, subcontracting clause." Affirmatively,
my recommended Order is designed to require the Compa-
ny, immediately upon the Union's request, to engage in good
faith bargaining over any proposed lawful restrictions on
practices involving the subcontracting of bargaining unit
work.
Where, as here, there is no allegation nor evidence that the
Company has unilaterally altered its subcontracting prac-
" Continental Nut Co.. supra at 858. See also Times Publishing Co. e a. 72
NLRB 676. 683 (1947), from which the above-quoted language is para-
phrased.
'" To raise the claim of "prejudice" in this context is to suggest that, had the
pending question been permitted, the Company would have secured an answer
permitting it to invoke the cited "union intransigence" defense to an 8(a)(5)
charge. It continues to elude me how counsel can conscientiously argue that it
could expect an answer to the objected to question which would perfect such a
defense under circumstances where the Company had refused to entertain any
"replacement" subcontracting proposal from the Union and therefore never
had any basis for supposing that the Union would be intransigent. Put
differently, the cited cases do not authorize inquiry such as that attempted by
company counsel into what the Union's bargaining posture would have been
had the Company not refused to bargain over a mandatory subject.
' Or, treating the "clarified" position of the Company discussed supra at
fn.
12 as reflecting the Company's current degree of willingness to bargain, that it
cease and desist from imposing even those conditions on its willingness
to
negotiate over subcontracting.
" Apart from the manifest detriment occasioned by the Company's
unlawful conduct affecting the unit employees' rights to bargain through their
chosen representative about subcontracting of unit work. there
is no
suggestion that identifiable financial detriment has occurred to members of
the bargaining unit. Thus. there is no evidence that the Company has enlarged
the amount of unit work let out to subcontractors, nor that layoffs
or
tices from those extant at the time the Acting Regional
Director declared article VI, section 4, to be unlawful,
'" and
especially in the absence of any request therefore by the
General Counsel, it is unwarranted to provide further relief
in the form of, for example, an order requiring reinstatement
of the status quo atte for the violation of Section 8(a)(5)
found herein or an order requiring that unit employees be
"made whole."
The Company has clearly "bought time" by its unlawful
refusal to bargain, but it is not at all evident how that
advantage could be negated by a remedial order from the
Board. The Union, on the other hand, is not without
practical recourse under the circumstances. It may exercise
its statutory right to seek information relevant to its
formulation of bargaining demands about subcontracting
practices affecting the bargaining unit; ' and, should such
information disclose that the Company has unilaterally
enlarged or otherwise detrimentally changed subcontracting
practices from those extant as of the Acting Regional
Director's ruling on the existing subcontracting clause,
appropriate charges may be filed and additional relief sought
from the Board. Moreovr. there is authority for the
proposition that the no-strike clause in the parties' contract
is inapplicable, at least to the extent that the Company
persists in its refusal to bargain in good faith over its
subcontracting practices."
CONCI.USIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act and is, and has been at all times
material herein, the exclusive collective-bargaining represen-
tative of the Company's employees in an appropriate
collective-bargaining unit consisting of the employees per-
forming the jobs set forth in the wage appendix schedule to
the current collective-bargaining agreement in effect between
the Company and the Union.
3. By failing and refusing, on and after January 12. 1979.
to bargain collectively in good faith over terms to replace the
curtailments of unit work opportunities have occurred as a consequence of the
Company's conduct found unlawful herein.
"See. e.g., Doubarn Sheet Metal. Inc.. 243 NLRB 821 (1979), and
authorities cited therein.
:" NL.R.B. v. Lion Oil Co. 352 U.S 282. 290-291 (1957), in which the
Court ruled that, where. as arguably here, the parties' contract provided for
negotiation and modification of a contractual provision during midcontract.
the right to strike in support of union demands relating to such "reopened"
matter is not affected by a general no-strike provision in the contract. hut
exercise of such right is still subject to the 60-day notice requirements of Sec
8(d) of the Act. This is, of course. not to be construed as a determination of
the parties' rights in this area, especially in the light of the peculiar "no-
strike" language in the current contract which, at art. I. sec. 2. commits the
Union not to strike during the agreement's term" and during any period of
time while negotiations are in progress between the parties hereto for the
extension or renewal of this Agreement." Rather. these observations are made
in support of the conclusion that the specific unfair labor practices of the
Company do not require a broader remedy than that recommended herein.
See. e.g., Cities Servce Oil Comnpany. 158 NLRB 1204. 1207 (1966). in which
the Board stated:
In devising all our affirmative orders, however. we bear in mind that the
remedy should be appropriate to the particular situation requiring
redress, and should be tempered by practical considerations.
326
ARIZONA PUBLIC SERVICE COMPANY
subcontracting restrictions contained in article VI., section 4,
of the current collective-bargaining agreement between the
Company and the Union, the Company has violated Section
8(a)(5) and () of the Act.
4. The aforesaid violation of the Act, occurring in
connection with the Company's operations, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead, and
have led, to labor disputes burdening and obstructing
commerce and the free flow of commerce.
Upon the foregoing findings of fact, conclusions of law,
and the entire record herein, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER"
The Respondent, Arizona Public Service Company, Phoe-
nix, Arizona, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Failing and refusing to bargain collectively in good
faith with the Union over the subject of subcontracting of
work performed or capable of being performed by members
of the bargaining unit covered by the current bargaining
agreement between the Company and the Union.
(b) In any like or related manner refusing to bargain
collectively in good faith with the Union over mandatory
bargaining subjects, or interfering with, restraining, and
coercing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action deemed necessary
to effectuate the policies of the Act:
(a) Upon the Union's request, immediately meet and
bargain collectively in good faith with the Union regarding
subcontracting of work performed or capable of being
performed by members of the bargaining unit covered by the
current collective-bargaining agreement between the Com-
pany and the Union.
(b) Post at all facilities of the Company where employees
in said bargaining unit work copies of the attached notice
marked "Appendix."' Copies of said notice, on forms
provided by the Regional Director for Region 28, after being
duly signed by the Company's authorized representative,
shall be posted by the Company immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Company to insure that said
notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 28, in writing,
within 20 days from the date of this Order, what steps the
Company has taken to comply herewith.
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order. and all objections thereto shall be deemed
waived for all purposes.
In the event that 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
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL_ LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity to
present evidence and arguments, it has been found that we
violated the National Labor Relations Act, as amended, by
refusing to bargain in good faith with International Brother-
hood of Electrical Workers, Local Union No. 387, AFL-
CIO, about lawful terms to replace restrictions on subcon-
tracting which were contained in the current contract with
that Union, but which were declared to be unlawful. To
remedy that violation, we hereby notify our employees as
follows:
The National Labor Relations Act gives employees the
following rights:
To organize themselves
To form, join, or support unions
To bargain with their employer as a group through
a representative which they choose
To act together for collective bargaining or other
mutual aid or protection
To refrain from the above activities except to the
extent that such right is limited by a lawful agree-
ment to require employees to become or remain
union members after a certain grace period.
In recognition of these rights, we further notify our
employees that:
WE WILL NOT refuse to bargain with the above-
named Union over lawful terms to replace the restric-
tions on subcontracting of bargaining unit work which
were contained in the current contract with that Union.
WE WI.L. NOT in any like or related manner refuse to
bargain in good faith with that Union, or interfere with,
restrain, or coerce employees in the exercise of the
rights guaranteed in the National Labor Relations Act.
WE WILL, upon the Union's request, immediately
meet and bargain with the Union over lawful terms to
replace restrictions on subcontracting of bargaining unit
work which were contained in our current contract
with the Union, and, if agreement is reached with the
Union on such terms, WE WILL, upon the Union's
request, reduce the same to writing and sign them.
ARIZONA PUBLIC SERVICE COMPANY
327