Badger Meter, Inc

National Labor Relations Board - Board Decisions

Oct 16, 1984

272 N.L.R.B. 824 (N.L.R.B. 1984)

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