Carpenters 46 Conference Board (Refrigeration Design)

National Labor Relations Board - Board Decisions

Jan 21, 1986

278 N.L.R.B. 122 (N.L.R.B. 1986)

122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carpenters 46 Northern California Counties Confer-
ence Board, United Brotherhood of Carpenters
and Joiners of America , AFL-CIO and Refrig-
eration Design Contractors . Case 20-CB-6546
21 January 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 16 August 1985 Administrative Law Judge
Jay R. Pollack issued the attached decision. The
General Counsel and the Charging Party filed ex-
ceptions and supporting briefs, and the Respondent
filed a brief in opposition to exceptions.
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, I and
conclusions2 and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed, provided that:
Jurisdiction over this proceeding is retained for
the limited purpose of entertaining an appropriate
and timely motion for further consideration upon a
proper showing that either (a) the dispute has not,
with reasonable promptness after the issuance of
this decision, been resolved by amicable settlement
in the grievance procedure or submitted promptly
to arbitration, or (b) the grievance or arbitration
procedures have not been fair and regular or have
reached a result which is repugnant to the Act.
i In sec II, par 5 of his decision, the judge, in an apparent inadvertent
error, referred to the Respondent Union's II April 1985 letter as "the
letter of 29 March 1985."
2 We find it unnecessary to rely on Nolde Bros., Inc v. Bakery Workers
Local 358, 430 US 243 (1977); American Sink Top Co., 242 NLRB 408
(1979); and Digmor Equipment Co., 261 NLRB 1175 (1982), cited by the
judge, because the instant case involves a dispute which clearly arose
during the term of the contract
Corinna Lothar Metcalf, Esq., and Lucile L. Rosen, Esq.,
for the General Counsel.
David A. Rosenfeld, Esq. (Van Bourg, Weinberg, Roger
and Rosenfeld), of San Francisco, California, for the
Respondent Union.
Mark R. Thierman, Esq. (Thierman, Simpson and Cook),
of San Francisco, California, for the Charging Party
Employer.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard
this case in trial at San Francisco, California, on 23 July
1985. Pursuant to a charge filed against Carpenters 46
Northern California Counties Conference Board, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO (Respondent or the Union) by Refrigeration
Design Contractors (Charging Party or the Employer)
on 24 April 1985, the Acting Regional Director for Re-
gional 20 of the National Labor Relations Board issued a
complaint against Respondent on 31 May 1985, alleging
that Respondent violated Sections 8(b)(3) and 8(d) of the
National Labor Relations Act.
The parties have been afforded full opportunity to
appear, to introduce relevant evidence, to examine and
cross-examine witnesses, and to file briefs. The post-trial
briefs were limited to the issue of whether the case
should be deferred to the grievance and arbitration pro-
visions of the contract between the Employer and the
Union which was in effect prior to March and April
1985, the times material. Only the General Counsel filed
a brief. Based on the entire record, I make the following
FINDINGS OF FACT AND CONCLUSIONS
1. JURISDICTION
The Employer is a corporation with an office and
place of business in Sacramento, California, which is en-
gaged as a contractor in the building and construction in-
dustry in the construction of commercial facilities.
During the 12 months prior to the alleged unfair labor
practice, the Employer provided services in excess of
$50,000 to customers within the State of California each
of which customers meet the Board's applicable stand-
ards for the assertion of jurisdiction on a basis other than
the indirect inflow or indirect outflow standards. Ac-
cordingly, Respondent admits and I find that the Em-
ployer is now, and has been at all times material herein,
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
The Union is now, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
The Union has, over the years, entered into a series of
contracts with the Building Industry Association of
Northern California, the most recent of which is effec-
tive from 16 June 1983 through 15 June 1986. This
master agreement provides that it shall remain in effect
from 16 June 1983 through 15 June 1986, and "shall con-
tinue thereafter from year to year unless either party, not
more than ninety . . . days nor less then sixty . . . days
prior to the 15th day of June of any subsequent year,
serves written notice on the other of its desire to change,
modify, amend, supplement, renew, or extend this Agree-
ment."
278 NLRB No; 21
CARPENTERS 46 CONFERENCE BOARD (REFRIGERATION DESIGN) 123
On 21 March 1980, the Employer executed a memo-
randum agreement with the Union. This memorandum
agreement was a "torn out" portion physically located at
the conclusion of the master agreement then in effect. By
signing the memorandum agreement
the individual employer agrees to comply with all
wages, hours, and working conditions set forth in
the Carpenters Master Agreement for Northern
California dated June 16, 1977, through June 15,
1980 (which Agreement is incorporated herein by
reference and a copy of which has been delivered
to me and receipt of which is hereby expressly ac-
knowledged), which amends, modifies, supplements
and renews each and every, all and singular, previ-
ous Carpenters Master Agreements or individual
employer Memorandum Agreements in the con-
struction industry in the 46 Northern California
Counties and any further modifications, changes,
amendments, supplements, extensions or renewals of
or to said Master Agreement which may be negoti-
ated between the parties thereto for the term there-
of.
Just before the signature line, the memorandum agree-
ment provides that the agreement:
shall remain in full force and effect until June 15,
1980 and shall continue from year to year thereafter
unless either party shall given written notice to the
other of the desire to change or cancel at least sixty
(60) daysprior to June 15, 1980, or June 15 of any
succeeding year.
In March 1985 Mark R. Thierman, counsel for the
Company, telephoned the Union and asked for a copy of
the memorandum agreement signed by the Employer,
and on 21 March 1985 L. E. Bee, executive director of
the Union, wrote to Thierman enclosing a copy of the
above-described memorandum agreement. Pursuant to
the language of the memorandum agreement, Mark
Thierman wrote to the Union on 29 March 1985, advis-
ing the latter that in accordance with the termination
provisions of the memorandum agreement, the Employer
was terminating its current collective-bargaining agree-
ment as of 16 June 1985 and requested the Union to bar-
gain concerning a new contract.
On 11 April 1985 L. E. Bee replied to Mark Thierman
informing him that the "purported notice of cancellation
is untimely," that the Union did not wish to cancel or
terminate the agreement, and that the Union expected
the Company to abide by the master agreement until its
expiration in 1986.
To date, the Employer has received no response to its
bargaining request other than the letter of 29 March 1985
refusing to accept the cancellation of the contract.
Respondent alleged in its answer as an affirmative de-
fense that the instant unfair labor practice allegations
should be deferred to the grievance and arbitration pro-
cedures contained in the collective-bargaining agreement
between the parties.' The current master agreement pro-
vides that "any dispute concerning-the relationship of the
parties, any application or interpretation of this Agree-
ment shall be subject to the [grievance and arbitration]
procedure." The parties argued the deferral issue at the
hearing and were given the opportunity to file briefs,
limited to the deferral issue. Only the General Counsel
filed a posttrial brief. The General Counsel and Charging
Party argued against deferral. '
B. Analysis and Conclusions
The Board has recently stated: "Whether deferral is
appropriate is a threshold question` which must be decid-
ed in the negative before the merits of the unfair labor
practice allegations can be considered." L. E. Meyers Co.,
270 NLRB 1010 (1984). Accordingly, as I deem this case
particularly appropriate for deferral, I do not discuss of
consider the merits of the complaint.
The Board has a strong policy of encouraging the use
of the arbitration procedures contained in collective-bar-
gaining agrements.2 This policy is equally applicable
whether the aggrieved party is a union or an employer.
In the instant case, the dispute involves contract inter-
pretation, an issue well suited for resolution by an arbi-
trator. There is the required parallelism- between the
issue -an arbitrator would be called upon to decide and
the issue which the Board would be called on to decide.
Further, Respondent has agreed to waive the timeliness
provision of the grievance procedure and any other pro-
cedural defense it may have to the resolution of this dis-
pute through arbitration.
The General Counsel and Charging Party first agrue
that deferral is not appropriate because there is a ques-
tion whether or not a contract, in fact, exists . That argu-
ment misstates the issue. All parties concede that a con-
tract existed during April or May 1985 when this dispute
arose. The only issue concerns the duration of the agree-
ment. The General Counsel and Employer allege that the
agreement expired on 15 June 1985 while the Union al-
leges that the agreement could not expire until 15 June
1986. Assuming, arguendo, that the agreement expired
on 15 June 1985, the dispute arose during the term of the
contract and the grievance and arbitration procedures
would survive the expiration of the contract concerning
this dispute. See Nolde Bros. v Bakery Workers Local 358,
430 U.S. 243 (1977), American Sink Top Co., 242 NLRB
408 (1979); Digmor Equipment Co., 261 NLRB 1175
(1982).
Second, the General Counsel and Employer argue that
the grievance procedure does not cover the instant dis-
pute. Again, the argument misstates the question. The in-
stant grievance procedure clearly covers the question of
whether the contract permitted the Employer to termi-
nate in 1985. The answer to that question governs
whether the Union is required to bargain for a succeed-
ing contract or whether it may insist on adherence to the
' The Union has agreed to waive the timeliness provisions of the griev-
ance procedure and any other procedural defenses it may have to resolv-
ing this dispute through arbitration.
2 See Collyer Insulated Wire, 192 NLRB 837 (1971); United Technol-
ogies Corp., 268 NLRB 557 (1984); and Olin Corp, 268 NLRB 573 (1984).
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract until proper termination. Whether the arbitrator
could effectuate the same remedy as the Board is not
germane to the deferral question. What is critical is that
the arbitrator could decide the contract question which
determines the relationship of the parties. That .same
question is central to the issues raised by the complaint.
Third, the General Counsel argues that deferral is in-
appropriate "because the Board has ruled on the identi-
cal issue." However, in deciding whether deferral is ap-
propriate, a consideration of the merits is irrelevant. As
noted earlier, the substantive merits of the case should
only be considered if the deferral question is decided in
the negative. See L. E. Meyers, supra . The only excep-
tions to such a rule would be where the complaint did
not state a violation of the Act or would not survive a
motion for summary judgment.
Accordingly, I find that this matter should be resolved
by the use of the collectively agreed-upon method of dis-
pute resolution. Therefore, I shall recommend that this
matter be deferred to the grievance and arbitration pro-
cedure of the collective-bargaining agreement between
Respondent and the Employer which was in effect in
April and May 1985.
2. Carpenters 46 Northern California Counties Confer-
ence Board, United Brotherhood of Carpenters and Join-
ers of America,' AFL-CIO is a labor organization within
the meaning of Section 2(5) of the Act.
3. No good cause has been shown why the issues
raised by the instant complaint should not be deferred to
the broad grievance and arbitration provisions of the ap-
plicable collective-bargaining agreement.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed3
ORDER
The complaint is dismissed provided that
Jurisdiction of this proceeding is retained for the limit-
ed purposes of entertaining an appropriate and timely
motion for further consideration on a proper showing
that either (a) the dispute has not, within reasonable
promptness after the issue of this decision and order,
either been resolved or submitted promptly to arbitra-
tion, or (b) the grievance or arbitration procedures have
not been fair and regular or have rendered a result
which is repugnant to the Act.
CONCLUSIONS OF LAW
1. Refrigeration Design Contractors is a employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
9 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