Columbus Printing Pressmen Union No. 252

National Labor Relations Board - Board Decisions

Jul 18, 1975

219 N.L.R.B. 268 (N.L.R.B. 1975)

268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Columbus Printing Pressmen & Assistants' Union
No. 252, Subordinate to IP & GCU and The R. W.
Page Corporation . Case 10-CB-2334
July 18, 1975
DECISION AND ORDER
On July 17, 1974, Administrative Law Judge Jerry
B. Stone issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and the Charging Party filed a
reply brief.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
From a reading of the concurring opinion of Mem-
ber Jenkins one would gain the impression that Col-
lyer Insulated Wire, A Gulf and Western Systems Co.,
192 NLRB 837 (1971), represents the aberrant views
of Members Kennedy and Penello, rather than a
principle firmly endorsed by court decisions; and
that it has been applied so as to discriminate against
respondent unions. Neither of these views is accu-
rate.
Collyer has been approved in the following court
decisions:
T.I.M.E.-DC, Inc. v. N.L.R.B., 504 F.2d 294
(C.A. 5, 1974); Banyard v. N. L. R. B., 505 F.2d 342
(C.A.D.C., 1974); Local Union No. 2188, Internation-
al Brotherhood of Electrical Workers, AFL-CIO
[Western Electric Co.] v. N.L.R.B., 494 F.2d 1087
(C.A.D.C.), cert. denied 419 U.S. 835 (1974); Local
Union No. 715, International Brotherhood of Electrical
Workers, AFL-CIO [Malrite of Wisconsin] v.
N.L.R.B., 494 F.2d 1136 (C.A.D.C., 1974); Associated
Press v. N.L.R.B., 492 F.2d 662 (C.A.D.C., 1974);
N.L.R.B. v. Brotherhood of Railway, Airline and
Steamship Clerks, 498 F.2d 1105 (C.A. 5, 1974);
N. L.R.B. v. Cincinnati Local 271, Lithographers &
Photoengravers International Union, AFL-CIO [Unit-
ed States Playing Card Co.], 495 F.2d 763 (C.A. 6,
1974); Enterprise Publishing Company v. N. L. R. B.,
493 F.2d 1024 (C.A. 1, 1974); Provision House Work-
ers Union Local 274, AFL-CIO [Urban Patman, Inc.]
v. N.L.R.B., 493 F.2d 1249 (C.A. 9), cert. denied 419
U.S. 828 (1974); and Nabisco, Inc. v. N.L.R.B., 479
F.2d 770 (C.A. 2, 1973). Six different courts of ap-
peals have thus approved the majority view ex-
pressed in Collyer. Not a single court of appeals has
endorsed the dissenting views of Members Fanning
and Jenkins in Collyer. Uniformly the courts have
rejected the view as stated in the present concurrence
that "where ... an alleged unfair labor practice is at
issue the Board must not defer to arbitration, but
must, instead, decide the case in accordance with the
mandate imposed on the Board by Congress in the
National Labor Relations Act." On the contrary, the
courts have approved Collyer as "supported by the
same federal labor policy favoring settlement of dis-
putes through procedures provided by collective bar-
gaining agreements ." Associated Press v. N. L. R. B.,
492 F.2d 662, 667. Or as stated by the court in
T.I.M.E.-DC, Inc. v. N.L.R.B., supra at 302:
Spielberg and Collyer represent a part of the
NLRB's continuing effort to facilitate the
prompt and expert settlement of labor disputes
in a peaceful manner by the parties involved,
without resort to the sometimes ponderous ap-
paratus of federal intervention.
Not only has the Supreme Court denied certiorari
in two cases cited above, but that Court specifically
endorsed the Collyer doctrine in William E. Arnold
Company v. Carpenters District Council of Jacksonville
and Vicinity, 417 U.S. 12 (1974). The Court stated,
417 U.S. at 16:
Indeed, Board policy is to refrain from exer-
cising jurisdiction in respect of disputed conduct
arguably both an unfair labor practice and a
contract violation when, as in this case, the par-
ties have voluntarily established by contract a
binding settlement procedure. See, e.g., The As-
sociated Press, 199 NLRB 1110 (1972); Eastman
Broadcasting Co., 199 NLRB 434 (1972); Labor-
ers Local 423, 199 NLRB 450 (1972); Collyer In-
sulated Wire, 192 NLRB 837 (1971). The Board
said in Collyer, "an industrial relations dispute
may involve conduct which, at least arguably,
may contravene both the collective agreement
and our statute. When the parties have contrac-
tually committed themselves to mutually agree-
able procedures for resolving their disputes dur-
ing the period of the contract, we are of the view
that those procedures should be afforded full
opportunity to function. . . . We believe it to be
consistent with the fundamental objectives of
Federal law to require the parties . . . to honor
their contractual obligations rather than, by
casting [their] dispute in statutory terms, to ig-
nore their agreed-upon procedures." Id. at 842-
843. The Board's position harmonizes with Con-
gress' articulated concern that, "[f]inal adjustment
by a method agreed upon by the parties is . . . the
desirable method for settlement of grievance dis-
putes arising over the application or interpretation
of an existing collective-bargaining agreement.
. .. " §203(d) of the LMRA, 29 U.S.C. § 173(d).
219 NLRB No. 54
COLUMBUS PRINTING PRESSMEN UNION NO. 252
[Emphasis supplied.]
We believe the Supreme Court's endorsement of the
Collyer principle is a complete answer to the unhap-
py dissenters in the Collyer case.
If so many of the courts of appeals had not ap-
proved Collyer, I if the Supreme Court had not denied
certiorari in two of these cases, if the Supreme Court
had not specifically expressed its approval of the Col-
lyer doctrine (see the quotation from Wilinliam E.
Arnold Company v. Carpenters District Council of
Jacksonville and Vicinity, supra) we might be inclined
to examine at length the arguments put forth in
Member Jenkins' concurring opinion to justify the
minority position in Collyer. Judicial acceptance of
the doctrine is too widespread to require any further
theoretical justification at this time. However, some-
thing must be said of the concurring opinion's reli-
ance on Alexander v. Gardner-Denver Company, 415
U.S. 36 (1974). That was a district court case brought
under Title VII of the Civil Rights Act of 1964, alleg-
ing that the complainant had been discharged for ra-
cially discriminatory reasons in violation of the Act.
The district court dismissed the suit upon the ground
that an arbitrator had decided that the dismissal was
not for racially discriminatory reasons . The court of
appeals affirmed. The Supreme Court reversed upon
the ground that Title VII was designed to supple-
ment, rather than supplant, existing laws and institu-
tions relating to employment discrimination. In sum,
the court concluded, "Title VII's purpose and proce-
dures strongly suggest that an individual does not
forfeit his private cause of action if he first pursues
his grievance to final arbitration under the nondiscri-
mination clause of a collective-bargaining agree-
ment."
The same court which unanimously decided Alex-
ander v. Gardner-Denver Company, 2 months later
r The implication in Member Jenkins concurring opinion that the court of
appeals in Banyard v. N.L R.B., 505 F.2d 342 (C A D.C., 1974), had rescind-
ed its approval of Collyer and had adopted the view of the Collyer dissenters
is inaccurate . The court stated , 505 F.2d at 345:
[I]n Associated Press v. N.L.R.B., we approved the application of both
Spielberg and Collyer However , our acceptance of those doctrines was
and is founded upon the premise that they are appropriately applied
only where the resolution of the contractual issues is congruent with the
resolution of the statutory unfair labor practice issues.
The court did not disagree with the prearbitral deferral of the case under
Collyer, but with the adoption of the postarbitral awards under Spielberg
Spielberg Manufacturing Company, 112 NLRB 1080 (1955). The court added
two further requirements to the three theretofore recognized as conditions
precedent to Board adoption of arbitral awards under Spielberg. In addition
to the requirements that: (1) the arbitral proceedings be fair and regular, (2)
the parties agreed to be bound by the arbitral award, and (3) the arbitral
decision not be clearly repugnant to the purposes and policies of the Act,
the court added that (4) the arbitral tribunal must clearly have decided the
issue on which it is later urged that the Board should give deference , and (5)
the arbitral tribunal decided an issue within its competence . It was because
these prerequisites were not complied with that the court refused to honor
the awards, and not because of deferral per se.
269
unanimously decided William E. Arnold Company v.
Corpnters District Council of Jacksonville and Vicinity,
where it said that the Board's position in Collyer
"harmonizes with Congress articulated concern that,
`[f]inal adjustment by a method agreed upon by the
parties is . . . the desirable method for settlement of
grievance disputes arising over the application or in-
terpretation of an existing collective-bargaining
agreement.... " Obviously, the same court did not
consider Gardner and Arnold inconsistent. Nor are
they. We are dealing with two different statutes hav-
ing different underlying purposes. The attempt of the
concurring opinion to explain away Arnold upon the
ground that it involved a jurisdictional dispute is
unavailing. The discussion of the jurisdictional dis-
pute question in the court opinion was in the form of
a "furthermore" argument.
The implication in Member Jenkins' concurrence
that deferral to arbitration is not being directed in
this case because the Respondent is a union is both
inaccurate and unfair. In the following cases, tle ma-
jority members who adhered to Collyer deferred
complaints against respondent unions upon the basis
of the Collyer doctrine:
Columbia Typographical Union No. 101, Interna-
tional Typographical Union of North America, AFL-
CIO (The Washington Post Company), 207 NLRB 831
(1973); Columbia Typographical Union No. 101, Inter-
national Typographical Union of North America, AFL-
CIO (The Washington Post Company), 207 NLRB 841
(1973); Columbia Typographical Union No. 101, Inter-
national Typographical Union of North America, AFL-
CIO (Byron S. Adams Printing, Inc.), 207 NLRB 850
(1973); Newspaper Web Pressmen's Union No. 6, In-
ternational Printing and Assistants Union of North
America, AFl-CIO (The Washington Post Company),
207 NLRB 856 (1973); Baltimore Typographical
Union No. 12, International Typographical Union,
AFL-CIO (The A. S. Abell Company), 201 NLRB
120 (1973); The Associated Press, 199 NLRB 1110
(1972), petition for review denied 492 F.2d 662 (C.A.
D.C., 1974); Houston Mailers Union No. 36, affiliated
with International Mailers Union (Houston Chronicle
Publishing Company), 199 NLRB 804 (1972); The
Newspaper Guild of Brockton, AFL-CIO (Enterprise
Publishing Company), 201 NLRB 793 (1973), petition
for review denied 493 F.2d 1024 (C.A. 1, 1974); and
Brotherhood of Teamsters & Auto Truck Drivers Local
No. 70, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America (Na-
tional Biscuit Company), 198 NLRB 552 (1972), peti-
tion for review denied 479 F.2d 770 (C.A. 2, 1973). If
the Collyer doctrine is more frequently applied where
employers are respondents than where unions are re-
spondents, the reason is that more complaints are
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filed against employers than against unions and such
cases more frequently involve questions of contract
interpretation.
The difference between Collyer and this case is one
of substance. Collyer involved a dispute over the
terms and meaning of the existing contract between
the union and the employer. The present dispute, on
the other hand, relates to whether the parties lawfully
bargained concerning the terms of a new agreement.
The issue is not one concerning the meaning of a
term in an existing contract, but whether a proposed
term of a new agreement was a mandatory subject of
bargaining and whether, assuming that it was not
mandatory, the Union bargained to an impasse on
the subject, thus violating Section 8(b)(3). The ques-
tions presented are therefore not ones of contract in-
terpretation, but of statutory obligations. They are
legal questions concerning the National Labor Rela-
tions Act which are within the special competence of
the Board rather than of an arbitrator.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders the Respondent, The Columbus Printing
Pressmen & Assistants' Union No. 252, subordinate
to IP & GCU, Phoenix City, Alabama, its officers,
agents, and representatives, shall take the action set
forth in the said recommended Order.
MEMBER FANNING, concurring:
For reasons set forth in my dissenting opinion in
Mechanical Contractors Association of Newburgh, 202
NLRB 1 (1973), I agree with Members Jenkins, Ken-
nedy, and Penello that the disputed interest arbitra-
tion clause is a nonmandatory subject of bargaining
and that therefore Respondent's insistence to the
point of impasse upon its inclusion in a new contract
violated Section 8(b)(3) of the Act. For the same rea-
sons, I disagree with the dissenting opinion of Chair-
man Murphy.
MEMBER JENKINS, concurring:
This case involves a contractual issue which arises
from the fact that the Charging Party and the Re-
spondent Union under the terms of their collective-
bargaining agreement are obligated to refer any un-
resolved disputes over contract provisions, including
a terminal or contract renewal arbitration provision,
to a joint standing committee, and, if necessary, to a
tripartite board of arbitration, for a final and binding
decision. This case also involves an alleged violation
of Section 8(b)(3) of the Act which arises from the
Respondent Union's insistence, to the point of im-
passe, upon the inclusion of an interest arbitration
clause (in the form of a terminal or contract renewal
arbitration provision) in a collective-bargaining
agreement being negotiated by the parties. We are
called upon to decide whether we should defer to the
interest arbitration clause in the parties' existing con-
tract to resolve the parties' contractual dispute as to
the inclusion of the same clause in the parties' new
contract. If we do not defer to the parties' interest
arbitration agreement , we must then decide whether
the interest arbitration clause is a nonmandatory
subject of bargaining about which the Respondent
Union may not bargain to impasse.
As to the deferral to arbitration issue , I note that
Collyer Insulated Wire,2 which Members Kennedy
and Penello rely on and apply here, stated emphati=
cally that the parties to a collective-bargaining agree-
ment which provides for arbitration of contract dis-
putes must honor their contractual obligations. In
Collyer, the majority refused to sanction the filing of
an unfair labor practice complaint alleging that an
employer had violated Section 8(a)(5) and (1) of the
Act so as to invoke the jurisdiction of the National
Labor Relations Board when the parties' collective-
bargaining agreement provided for arbitration proce-
dures to settle the dispute. The distinctions between
the instant case and Collyer are that here a union is
the respondent and an interest arbitration clause is
involved, while in Collyer an employer was the re-
spondent and a grievance arbitration clause was in-
volved. Why Members Kennedy and Penello would
defer to arbitration in Collyer-type cases but not here
escapes me .' Be that as it may, I conclude, for the
reasons set forth in my dissent in Collyer and related
cases , that where, as here, an alleged unfair labor
practice is at issue the Board must not defer to arbi-
tration, but must, instead, decide the case in accor-
dance with the mandate imposed on the Board by
Congress in the National Labor Relation Act.
In reaching this result, I find that the case of Alex-
ander v. Gardner-Denver Co.° is more analogous and
persuasive in the case at bar than the case of William
E. Arnold v. Carpenters,' which is relied upon by
' 192 NLRB 837 (1971)
3 See also Brotherhood of Teamsters & Auto Truck Drivers Local No 70,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America (National Biscuit Co ), 198 NLRB 552 (1972), in which Members
Kennedy and Penello deferred to a bipartite panel composed of representa-
tives of management and labor in equal numbers . It is unclear to me as to
why my colleagues would defer to bipartite arbitration there and not defer
to final binding tripartite arbitration in this case Cf. also Member
Kennedy's and Member Penello's decisions in such cases as Terminal Trans-
port Company, Inc., 185 NLRB 672 (1970), and McLean Trucking Company,
202 NLRB 710 (1973), reversed sub nom James Banyard v. N L.R.B., 505
F,2d 342 (C.A D C, 1974), in which they also deferred to bipartite arbitra-
tion.
°415 U.S. 36 (1974).
s 417 U S. 12 (1974)
COLUMBUS PRINTING PRESSMEN UNION NO. 252
Members Kennedy and Penello . As noted in Mem-
ber Fanning's and my dissent in Southwestern Bell
Telephone Company,6 Arnold hardly seems pertinent
since it involved a Section 301 suit which arose from
a jurisdictional dispute. Our Act makes deferral to an
agreed-upon method of settlement mandatory in
such cases. Accordingly, there can be no objection to
deferral to arbitration in such a situation, and Mem-
ber Fanning and I have so stated in our decisions in
this area. Indeed, it is the mandatory deferral proce-
dure which Congress specifically provided in Section
10(k) of the Act which helps to persuade us that de-
ferral of other types of cases, not specifically provid-
ed for in the Act, was not contemplated by Congress.
This conclusion is reinforced by the observation of
the Supreme Court in N.L.R.B. v. Strong Roofing &
Insulating Co.,7 that the Board's authority to remedy
unfair labor practices is not "affected by any other
means of adjustment or prevention that has been or
may be established by law or otherwise...." Plain-
ly, the decisions of Members Kennedy and Penello in
Collyer-type cases are directly at odds with the prin-
ciple and purpose of the preemption doctrine to
make the Act paramount and uniform in its applica-
tion. Their principle of refusing to decide is, in my
view, contrary to the decision of the Supreme Court
in Amalgamated Association of Street, Electric Rail-
way & Motor Coach Employees v. Lockridge.8 There,
the Court held, in accordance with the Board's argu-
ment, amicus curiae, that the Idaho Supreme Court
was powerless to determine the illegality of an
employee's discharge which arguably violated Sec-
tion 8(a)(3) of the Act because it involved "conduct
whose legality is governed by federal law, the appli-
cation of which Congress committed to the Board,
not courts." I The Court in Lockridge specifically re-
jected the argument that the doctrine of preemption
did not apply where contractual issues or issues in-
volving interpretation of union rules were present,
noting that "the Board routinely and frequently .. .
inquire[s] into the proper construction" of such mate-
rials.10 As Member Fanning and I stated in our dis-
sent in Collyer," if the Supreme Court is unwilling to
give to state courts jurisdiction to decide suits which
"arguably" involve an unfair labor practice under the
Act and at the same time involve a contract interpre-
tation issue, this Board can hardly relinquish its par-
amount jurisdiction to a private tribunal or to an ar-
bitrator whose decision by definition has no
'212 NLRB 396 (1974).
7393 U.S. 274 (1971).
s 403 U.S. 274 (1971).
9 Lockridge, supra, 403 U S. at 290.
10 Lockridge, supra, 403 U.S. at 293.
11 Collyer, supra, 192 NLRB at 851.
271
precedential value, whose determination may not de-
cide or touch upon the statutory violation, and whose
award may not remedy present statutory violations
and cannot control future conduct, however unlaw-
ful the present conduct may have been.
More analogous and persuasive than Arnold is also
the case of Gardner-Denver, a Title VII case in which
the Supreme Court held that there can be no deferral
of statutory rights to an arbitral tribunal. The Court's
reasons in reaching this result, which seem to me-fa-
tal to the majority's position in Collyer-type cases,
were that 12 (1) Congress intended statutory tribunals
to exercise primary responsibility for enforcing statu-
tory rights; (2) the arbitrator's task is to effectuate
the intent of the parties rather than the statutory re-
quirements; (3) the competence of arbitrators relates
to the law of the shop rather than the law of the land;
and (4) the factfinding process in arbitration falls
short of factfinding in litigation and arbitrators need
to give no reasons for their awards."
In view of the Supreme Court's pronouncements in
this area, I respectfully disagree with the opinions of
the U. S. circuit courts of appeal cited by Members
Kennedy and Penello, to the extent those decisions
differ from the views expressed herein. In this regard,
I note that the Second Circuit case, Nabisco, Inc.,14
predated Gardner-Denver. The statement of Members
Kennedy and Penello that "not a single Court of Ap-
peals" has endorsed my views or those of Member
Fanning in this area is not quite accurate. In fact, in
one of the District of Columbia Circuit cases relied
upon by Members Kennedy and Penello, Banyard v.
N.L.R.B.,15 Judges Wilkey and Wright, with Judge
MacKinnon concurring, remanded to the Board a
case which involved Section 502 of the Act and a
joint grievance committee award to which Members
Kennedy and Penello had deferred. In so doing, the
court reviewed the three other District of Columbia
Circuit Court opinions cited by Members Kennedy
and Penello, but stated that "We concur in the dis-
senting Board members' [Fanning and Jenkins] per-
ception of the dispositive issue in this case, viz, `No
contract provision or arbitration award can permit
an employer to require his employees to violate state
laws or to create safety hazards for themselves or
others'." 16 In its decision, the court further stated
that "We agree with the conclusion of the trial exam-
iner : `In the instant case, it is patent that the issue
raised by the allegations of the complaint, namely,
12 See a more complete exposition of Member Fanning 's and my views
concerning Arnold and Gardner-Denver in our opinion in Electronic Repro-
duction Service Corporation, et al., 213 NLRB No. 110 (1974).
13 Gardner-Denver, supra, 415 U.S. at 58.
14 Nabisco, Inc v. N.L.R B, 479 F.2d 770 (C.A. 2, 1973)
IS 505 F.2d 342 (C A D.C., 1974)
16 Banyard, supra, 505 F.2d at 347
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether Banyard has been discharged by Respon-
dent because of his concerted or union activity, is not
one which falls within the special competence of an
arbitrator, but is primarily one for resolution under
the provisions of the Act which the Board has been
mandated by Congress to enforce."' (Banyard, supra
at 346.) In short, when presented with the implica-
tions of Collyer the District of Columbia Circuit
Court substantially adopted the view of the Collyer
dissenters.
My colleagues state that the distinction between
Collyer and the present case is that the question is
not one of contract interpretation but of statutory
obligations, that is, "legal questions concerning the
National Labor Relations Act which are within the
special competence of the Board rather than of an
arbitrator." This has been Member Fanning's and
my constant objection to deferring discriminatory
discharge cases arising under Section 8(a)(3), but un-
til now my colleagues have uniformly considered this
to be of no importance and have deferred 8(a)(3)
cases to arbitration. Can we hope they will no longer
do so?
Concerning the issue of whether an interest arbi-
tration clause is a permissive subject of bargaining, I
note that in Mechanical Contractors Association of
Newburgh," the Board, with Member Fanning dis-
senting, viewed a clause which provided for the reso-
lution of unresolved bargaining issues by an industri-
al relations council not as an extension of arbitral
decision making, but as an extension of the collec-
tive-bargaining process, which had not yet been ex-
hausted. Since a majority of the Board found that no
impasse occurred in such circumstances, it was un-
necessary to determine whether the industrial rela-
tions council clause was a mandatory or a permissive
subject of bargaining. Member Fanning, dissenting,
was of the opinion that the industrial relations coun-
cil clause involuntarily waived the union's right to
negotiate and concluded that the clause was a per-
missive subject of collective bargaining.
Unlike the factual situation in Mechanical Contrac-
tors, supra, the interest arbitration clause in the in-
stant case refers unresolved disputes to a neutral or
impartial arbitrator. Thus, this case involves not an
extension of the process of collective bargaining, but
rather a process of judicial or arbitral decision mak-
ing. Since all of my colleagues agree that impasse has
occurred with respect to the inclusion of the interest
arbitration clause in the parties' collective-bargaining
agreement, the issue in this case, unlike in Mechani-
cal Contractors, is squarely presented as to whether
17 202 NLRB 1 (1973).
an interest arbitration clause is a mandatory subject
of bargaining.
I agree with the majority of my colleagues that the
interest arbitration clause herein is not a mandatory
subject of bargaining and that by bargaining to im-
passe concerning such clause the Respondent Union
violated Section 8(b)(3) of the Act. Cases interpreting
Section 8(d) of the Act make it clear that any con-
tract provision which subverts the rights of the par-
ties to negotiate to impasse and, if necessary, to re-
solve impasse through a test of respective economic
strength of the parties, must not be deemed a manda-
tory subject of bargaining."
The legislative history of Section 8(d) of the Act
and cases relating to this section also make it clear
that negotiations between employers and labor orga-
nizations must be free of outside supervision or inter-
ference.19 Since Congress, by Section 8(d) of the Act,
has specifically denied the Board the right to partici-
pate in the arena of actual negotiations, or to sit in
judgment on the substantive provisions of a collec-
tive-bargaining agreement, it must be concluded that
the Act does not permit either party, in a case such as
this one, the right to create an impasse over a con-
tract provision giving such authority to an arbitrator.
Based upon the foregoing, I find that deferral to
the parties' arbitral process herein is inappropriate,
and I further find that the Respondent Union unlaw-
fully insisted to the point of impasse upon the inclu-
sion in the parties' collective-bargaining agreement
of an interest arbitration clause, a nonmandatory
subject of bargaining. I therefore conclude that the
Respondent Union thereby violated Section 8(b)(3)
of the Act and that an appropriate remedial order
should issue.
CHAIRMAN MURPHY, dissenting:
I am unable to agree with my colleagues that the
Respondent Union violated Section 8(b)(3) of the
Act by conditioning execution of a new contract
upon the continued inclusion of an interest arbitra-
tion clause. And this is so whether that clause be
is See the discussion of such cases in the Decision of Administrative Law
Judge Feldesman in Mechanical Contracting Association of Newburgh, su-
pra.
19 See N L R. B. v. American National Insurance Company, 343 U.S. 395,
404 (1952); and N L R B v. Insurance Agents' International Union, AFL-
CIO [Prudential Insurance Co.], 361 U.S 477, 487 (1960) See also H. K
Porter Co., Inc, Disston Division -Danville Works v N L R. B., 397 U.S. 99,
103-104 ( 1970), in which the U .S. Supreme Court stated that the object of
the National Labor Relations Act "was not to allow governmental regula-
tion of the terms and conditions of employment, but rather to ensure that
employers and their employees could work together to establish mutually
satisfactory conditions . The basic theme of the Act was that through collec-
tive bargaining the passions , arguments, and struggles of prior years would
be channeled into constructive , open discussions , leading, it was hoped, to
mutual agreement . But it was recognized from the beginning that agreement
might in some cases be impossible , and it was never intended that the Gov-
ernment would in such cases step in , become a party to the negotiations and
impose its own views of a desirable settlement"
COLUMBUS PRINTING PRESSMEN UNION NO. 252
deemed a mandatory or a nonmandatory subject of
bargaining.
The clause in dispute has been included in each
contract between the parties since 1947, and since
that time there have been no work stoppages by the
employees covered thereunder. In the negotiation of
the 1970-73 contract, the Employer sought to delete
that provision, but it was retained in the new con-
tract as the result of an arbitration decision by a neu-
tral person pursuant to that very arbitration clause.
The Employer again opposed its inclusion during the
1973 negotiations and the Respondent Union again
insisted to impasse upon its inclusion but seeks sub-
mission of the issue to arbitration as it did in 1970.
All other provisions of the new contract have been
agreed upon. It is this situation which is the subject
of this case.
The principal ground for finding a violation ap-
pears to be that because the quid pro quo for the inter-
est arbitration clause is the waiver of the employees'
right to bring economic pressure against the Employ-
er by strike action, and, because public policy frowns
upon any undue interference with the right to strike,
necessarily the interest arbitration clause itself is
against public policy. But this syllogism is not valid.
For public policy also favors voluntary resolution of
disputes and the elimination of economic warfare
which interferes with the free flow of commerce; the
interference with the right to strike which is unlawful
or against public policy is that which is imposed by
one party or by the Government upon another party
to a dispute, not a bilateral agreement upon mutual
undertakings which result from the give and take of
collective bargaining. Similarly, the freedom of col-
lective bargaining from outside interference or super-
vision refers to that imposed upon, not what is
agreed to by, the parties.20 Therefore, even if the in-
stant clause could not be insisted upon to impasse in
initial bargaining, assuming arguendo that it is a non-
mandatory subject,21 I see nothing improper in one
party's seeking , by peaceful means , to require adher-
ence by the other to the provisions which were volun-
tarily and freely undertaken in the first instance (and
here were similarly continued in effect for many
years until 1970).
I am well aware of the holding of the U. S. Su-
preme Court in Allied Chemical and Alkali Workers of
America, Local Union No. 1 v. Pittsburgh Plate Glass
Co., Chemical Division,22 that unilateral modification
of a contract term relating to a nonmandatory sub-
ject does not violate Section 8(a)(5). However, the
20 Our finding there is no violation would in no sense impose the disputed
clause on the parties or pass upon the merits of including or excluding it.
21 However , for the reasons set forth later in this opinion , I am persuaded
that this is a mandatory subject of bargaining.
22 404 U S 157 (1971).
273
Supreme Court specifically noted 23 that in that case
there was no indication whether the collective-bar-
gaining agreement provided for arbitration that
would have been applicable to the dispute there in-
volved and expressed no opinion on the relevance of
such a provision to the question decided. In the in-
stant case there is, indeed, a provision for arbitration,
and hence it cannot be said that the holding of
Chemical Workers v. Pittsburgh Plate Glass is clearly
or necessarily dispositive and controlling of the issue
now before us. Furthermore, a holding that because
of that decision the Board must find a violation in
the instant case leads to the anomalous situation of
the Board's finding no violation where a party refus-
es to adhere to an agreed-upon term of a contract
and thereby disrupts (at least to some extent) the re-
lationship between the parties,24 by not finding illegal
the conduct of a party who seeks to secure adherence
to an agreement for peaceful resolution by interest
arbitration and thus to maintain the status quo. This
is a strange situation, indeed, especially in light of the
stated purposes and policies of the Act this Board
administers.
It has clearly been held that an interest arbitration
clause is not unlawful 25 and the right to strike is not
27 At In 38, infra
24 See also United Paperworkers International Union, AFL-CIO, et al
(Westab-Kalamazoo Division Mead Corporation), 216 NLRB No. 80 (1975),
in which the panel majority (Member Kennedy dissenting) dismissed the
complaint alleging violation of Sec 8 (b)(3) by the union's insistence to im-
passe upon continued bargaining re a pension plan on the historical multi-
plant unit basis but stated that the employer's adamant insistence upon
changing to single -plant units for bargaining as to pensions would not be
violative of Sec. 8(a)(5) Similarly, in Newspaper Production Company, 205
NLRB 738 (1973), the Board majority (Member Fanning dissenting) found
no violation of Sec . 8(a)(3) by the union 's insistence to impasse upon the
expansion of the contract unit by the addition of historically excluded indi-
viduals, it was also found that the union 's strike to secure expansion of the
unit was protected concerted activity. Neither of these decisions refers to the
fact that at has long been held that once the contract unit has been estab-
lished (whether by the Board or by agreement of the parties ) any change of
definition constitutes a nonmandatory subject of bargaining (Charles J. Mor-
ris, ed ., "The Developing Labor Law," pp 426-428 (ABA, 1971), and cases
cited therein ), and both of these majority holdings constitute decisions that
insistence to impasse upon a nonmandatory subject of bargaining is not
violative of the Act. While I do not intend hereby to indicate my view as to
the validity or invalidity of these decisions, I cite them for the interesting
fact that three of my colleagues have so held at some time in the past.
25 Aikens v Abel, 373 F Supp . 425 (D C. Pa , 1974), in which the court
rejected the contention that a labor organization violated its duty of fair
representation by waiving the right to strike in return for an interest arbitra-
tion clause without having submitted the matter to the members for prior
approval . The court stated , in this connection (at 437).
If the unspoken promise behind their thinking is that a union 's legally
recognized right to strike is so important , so hard -won, that no one, not
even the union's representative leadership nor even , presumably, the
membership themselves , can give it up, this Court disagrees. In any
system of self-government , in theory and in practice, even the most
precious - rights may be waived , always assuming that the system's es-
tablished procedures for making such a decision are followed.
The emotion -laden term, right to strike, inevitably recalls the bloody
and bitter historical struggle for parity that was waged by union mem-
bers against the steel companies . No one, and especially no one with
roots in the Pittsburgh area, belittles the importance of the right to
Continued
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immutable 26 In fact, I am somewhat puzzled by the
emphasis placed 27 upon strike and lockout as essen-
tial aspects of collective bargaining under the Act.28 I
certainly agree that in appropriate circumstances
they are legitimate and often necessary economic
weapons, and it is true that the Supreme Court has
on various occasions commented, in effect, that final
resort to such weapons is "part and parcel of the
system" of collective bargaining contemplated by the
Act.29 But it is one thing to recognize that the strike
and lockout are not forbidden, but something else
again to imply that the Act regards them as the most
desirable ways of resolving economic disputes.30
They are, as indicated, at best a last resort"' and one
of the principal aims of the Act is to avoid, if possi-
ble, recourse to economic warfare. As the court said
in the language of Aikens v. Abel, quoted in footnote
25, supra, no one belittles the importance of the right
to strike, but even the most precious rights may be
waived in proper circumstances and "it is symbolic
of the changes wrought by time that this dispute
[was] being resolved by means of civilized debate in a
court of law, rather than by recourse to the violence
and recrimination which characterized labor rela-
tions in the recent past." Similarly, the Respondent
Union in this case seeks to resolve disputes by peace-
ful means rather than by possibly explosive condi-
tions.
strike , brave men died to win it . No one discounts their sacrifice But it
is symbolic of the changes wrought by time that this dispute is being
resolved by means of civilized debate in a court of law, rather than by
recourse to the violence and recrimination which characterized labor
relations in the recent past
And see Winston -Salem Printing Pressmen and Assistants' Union No 318 v
Piedmont Publishing Company of Winston -Salem , 393 F 2d 221 (C.A 4.
1968), cited by the Administrative Law Judge as standing for enforceability
of such a clause.
16 Aikens v. Abel, supra
27 Although only Member Jenkins discusses this aspect , the other mem-
bers of the majority have subscribed to the same rationale by virtue of their
adoption of the Administrative Law Judge 's Decision , which in turn incor-
porates the rationale of Administrative Law Judge Feldesman in Mechanical
Contractors Association of Newburgh, 202 NLRB 1 (1973), especially the last
seven paragraphs of the Administrative Law Judge's discussion in that case
281 note also that the effect of my colleagues ' holding is to inhibit, not
enhance , the very right they purport to protect
29 E.g., N.L.R.B. v. Insurance Agents' International Union, AFL-CIO, 361
U S. 477, 489 (1960), American Ship Building Co v N L R B, 380 U .S. 300,
317 (1965).
30 No doubt, a strike or lockout could have a successful outcome and
result in a mutually satisfactory , freely entered into agreement . But, unless
we are to be highly unrealistic , we should also recognize that frequently
such economic pressure results not in any return to meaningful collective
bargaining but rather in the complete capitulation of one of the parties or
perhaps on rarer occasions in an almost interminable state of economic
warfare of no apparent benefit in either the short or long run to anyone and
disruptive of the economy of the country. Consequently, the concept that
strike and lockout are the only desirable pathway-at least after impasse-
to meaningful free collective bargaining seems to me to be rather naive.
Surely it is a wholly inadequate basis on which to conclude that the role of
interest arbitration is to be rejected on the ground it would preclude such
bargaining.
3 American Ship Building Co v N L R B, supra
The Supreme Court has stated that the Act,
through Section 8(d), is "designed to regulate modifi-
cations [of contracts] . . . so as to facilitate agree-
ment in place of economic warfare . . . [and] 'with-
out interrupting the flow of commerce or the
production of goods.' " 32 The Supreme Court has
also recognized (albeit in a context of grievance, not
interest, arbitration) the "preference of national la-
bor policy for abritration as a substitute for tests of
strength." 33 Significantly, Section 201 of the Act
states the national policy as "settlement of issues .. .
through collective bargaining . . . by making avail-
able . . . governmental facilities for . . . voluntary
arbitration to aid and encourage employers and the
representatives of their employees to reach and main-
tain agreements.... " (Emphasis supplied.) And
Title II of the Act, of which Section 201 is a part, is
far more concerned with disputes over contractual
terms and conditions of employment than grievance
matters, and thus interest arbitration, being one of
the few types of agreements designed to deal with
disputes over terms, surely falls within the language
of Section 201. Clearly, then, there is no room for the
view that the Act in some circumstances looks fabor-
ably on economic conflict as so desirable a means of
furthering the ends of collective bargaining that it
overrides any attempts to pursue peaceful methods
of resolutions or that interest arbitration where vol-
untarily agreed to by the parties is contrary to public
policy 34
It is implied, however, that interest arbitration
somehow improperly restricts the bargaining authori-
ty of the recognized bargaining agents by leaving
32 Chemical Workers v Pittsburgh Plate Glass Co, supra at 187.
33 E g . John Wiley & Sons v Livingston, 376 U.S 543, 459 (1961); United
Steelworkers of America v. Warrior & Gulf Navigation Co, 363 U.S. 574, 578
(1960).
34 Winston -Salem Printing Pressmen v Piedmont Publishing Co, supra,
Builders Association of Kansas City v Greater Kansas City Laborers, 326 F.2d
867 (C.A. 8), cert. denied 377 U S 917 (1964), Division No 892, Amalgamat-
ed Association of Street, Electric Railway and Motor Coach Employees of
America v . M. K & 0 Transit Lines, Inc., 210 F.Supp 351 (D.C. Okla,
1962), reversed on other grounds 319 F.2d 488 (C.A 10, 1963 ), cert . denied
375 U.S. 944 (1963), Seltzer & Co v. Livingston, 253 F Supp . 509 (D.C.N.Y.
1966). affd. 361 F.2d 218 (C.A. 2, 1966), Nashville Newspaper Printing
Pressmen 's Union, Local 50 v Newspaper Printing Corporation, 88 LRRM
2219, 74 LC ¶10.279 (D.C. Tenn , 1974). These cases all hold that interest
arbitration comes within the national policy favoring arbitration of labor-
management disputes All reject the contrary rationale of Boston Printing
Pressmen 's Union v Potter Press, 141 F.Supp 553 (D C Mass., 1956), affd.
241 F.2d 787 (C.A. 1, 1957), and Austin Mailers Union No. 136 v Newspa-
pers, Inc, 226 F Supp. 600 (D.C. Tex., 1963), affd 329 F.2d 312 (C A. 5,
1964). on the grounds these cases are inconsistent with the Supreme Court's
decisions emphasizing the national policy favoring arbitration of labor-
management disputes See, e g, cases cited in fn 33, above.
See also Blake Construction Company, Inc v Laborers ' International Union
of North America, AFL-CIO, 511 F.2d 324 (C.A D.C., 1975), where the
court refers to the fact the Supreme Court has "emphasized the importance
of maintaining industrial stability and recognized the significant contribu-
tion of arbitration to preservation of peaceful labor management relations"
and "has stressed these values in the Steelworkers Trilogy, reiterating the
wholesome federal policy promoting enforcement of dispute -settlement pro-
cedures fashioned by the parties ." (Blake, supra at 326-327 )
COLUMBUS PRINTING PRESSMEN UNION NO. 252
mandatory bargaining to arbitration and that it is
basically at variance with the collective-bargaining
policies of the Act. The rationale appears to be that
interest arbitration, by precluding bargaining of the
parties themselves as to the final resolution of disput-
ed matters on which impasse has been reached, im-
properly substitutes so-called quasi-legislative action
by an impartial individual for arm's length dealings
between the parties.35 But, as noted above, there is
nothing inherently useful about this when it results
from the voluntary agreement of the parties. The in-
dividuals drafting such clauses surely are capable of
adopting language which permits unilateral determi-
nation on whether to retain the same provision in
later contracts,36 and if the parties have agreed upon
interest arbitration without qualification there is
nothing inherently improper in seeking to secure
adherence thereto. Nor am I impressed by the argu-
ment that the parties may be "locked into" such an
agreement. For I do not propose to rule on the need
to continue such a clause in existence 37 or find that
the failure to submit the matter to arbitration pur-
suant thereto is itself violative of the Act.38 Rather I
find only that the insistence to impasse upon inclu-
sion of a clause providing for such submission is not
unlawful. In any event, there is no reason to assume
that every arbitrator will conclude that the interest
arbitration provisions should be retained, or even
that the same arbitrator will adopt the identical view
each time the issue is raised; there are many reasons
why an arbitrator would find merit in a contention
opposing its continuation.
All of the above discussion assumes that interest
arbitration is a nonmandatory subject of bargaining.
But as indicated previously, I would find that it is
within the definition of a mandatory subject of bar-
gaining, i.e., any issue which settles an aspect of the
relationship between the employer and employees39
concerning wages, hours, working conditions, or
other terms or conditions of employment. That an
interest arbitration provision does so is beyond dis-
pute. For by its very nature it provides a peaceful
judicial-type procedure in place of economic warfare
as a means of settling any such aspect of the employ-
ment relationship upon which there may be dis-
agreement . Its provision for the continuing effective-
ness of established contract terms throughout the
negotiation period for renewal thereof and the assur-
ance of continued employment to workers and unin-
terrupted production to the employer are the very
essence of the bargaining relationship and the protec-
tion of employer-employee interests. The fact that, as
the Administrative Law Judge concluded, this provi-
sion may have no immediately measurable impact
upon the welfare of unit employees is irrelevant; this
275
is not and never has been a measure of whether a
subject is one upon which the parties are compelled
to bargain. Thus, a cost-of-living escalator clause
protects employees against future economic contin-
gencies which may never arise. Similarly, a pension
agreement may not always provide unit employees
with tangible benefits which they will surely realize.
Yet no one today would agree that either a cost-of-
living escalator provision or a pension plan is not a
mandatory subject. What both of them provide the
unit employees is a sense of security concerning in-
come, and this is certainly equally true of the interest
arbitration provision. Nor does a management rights
clause relate to immediate and known matters which
will surely arise, but this, too, is a mandatory subject.
Thus, it seems to me that interest arbitration is un-
ambiguously a term or condition of employment,
being, as it is, a protection against interruption of
future continued job security and earnings capacity
and furthering the peaceful resolution of possible dis-
putes over contract terms dealing specifically with
wages, hours, and working conditions.
In sum, I would find that interest arbitration is a
mandatory subject upon which a party may insist to
impasse. But even if it is not, I would find that Re-
spondent Union did not violate Section 8(b)(3) by
insisting that the terms of its latest contract be ad-
hered to, and that resort to arbitration be had to de-
termine whether to retain the clause in the new con-
tract. It is my considered opinion that interest
arbitration does not conflict with the policies of the
Act where initially agreed to freely by the parties but
that, rather, it is a method of resolution of disputes
favored by the Act and furthers the basic statutory
goal of industrial peace. I would dismiss the com-
plaint in its entirety.
35 To the extent that the arbitration procedure provides for presentation
of opposing viewpoints and a weighing of their merits, I prefer to view it as
quasi-judicial rather than quasi-legislative.
I find it unnecessary to consider or pass upon the applicability of Collyer
Insulated Wire, 192 NLRB 837 (1971), to the facts of this case and hence do
not hereby intend to indicate my views with respect to that decision.
36 See , e.g., Aikens v. Abel, supra, in which the parties agreed that either
side was free to revert to the old approach if they found themselves dissatis-
fied with any aspect of the Experimental Negotating Agreement.
37 Such a finding would exceed the Board's authority H K. Porter Com-
pany, Company, Inc, Disston Division-Danville Works v. N L R.B., 397 U.S.
99(1970)
3 It is well settled that Congress did not intend every breach of a collec-
tive-bargaining agreement to be, per se, an unfair labor practice See, e.g,
N L R B v Los Amgeles-Yuma Freight Lines, 446 F.2d 210, 214 (C.A. 9,
1971)
39 Chemical Workers v Pittsburgh Plate Glass Co, supra at 178.
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This pro-
ceeding, under Section 10(b) of the National Labor Rela-
tions Act, as amended , was heard pursuant to due notice
on May 20, 1974, at Columbus, Georgia.
The charge was filed on February 20, 1974. The com-
plaint was issued on April 4, 1974. The issue presented is
whether the Respondent Union violated Section 8(b)(3) of
the Act by insisting (to a point of impasse) that a contract
include an arbitration clause relating to the arbitration of
future contract negotiation dispute issues-including a dis-
pute as to whether said arbitration clause would be includ-
ed in such contract.
All parties were afforded full opportunity to participate
in the proceeding, and all parties filed briefs which have
been considered.
Upon the entire record in the case and from my observa-
tion of witnesses , I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The facts are based on the pleadings and admissions
therein.
The R. W. Page Corporation, the Company, is, and has
been at all times material herein, a corporation with an
office and place of business located at Columbus, Georgia,
where it is engaged in the printing and sale of two daily
newspapers. The Company, during the calendar year of
1973, which period is representative of all times material
herein , subscribed to the Associated Press , an interstate
news service , and had a gross volume of business in excess
of $200,000. The Company, also during the same period of
time , purchased and received goods and services valued in
excess of $50,000 directly from points located outside the
State of Georgia.
As conceded by the Respondent and based on the fore-
going, it is concluded and found that the R. W. Page Cor-
poration is, and has been at all times material herein, en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
11. THE RESPONDENT , THE LABOR ORGANIZATION INVOLVED
The facts are based on the pleadings and admissions
therein . The Columbus Printing Pressmen & Assistants'
Union No. 252, Subordinate to IP & GCU, the Respon-
dent, is, and has been at all times material herein , a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary Findings
The facts are based on the pleadings and admissions
therein.
The Appropriate Bargaining Unit and History
All journeymen , pressmen and apprentice (or assistants)
pressmen employed in the pressroom of The R. W. Page
Corporation, but excluding all other employees, all janitors
and mechanical superintendents , office clericals , guards
and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining with-
in the meaning of Section 9(b) of the Act.
At all times material since on or about 1947, Respondent
and the Company have been parties to successive, written
collective-bargaining agreements covering the employees
in the unit described above, the last of which had an expi-
ration date of August 31, 1973.1
The parties have had in their collective-bargaining agree-
ments , during the period of time from 1947 to August 31,
1973, an arbitration clause identical to the arbitration
clause in issue in this proceeding. Such clause is as follows:
It is agreed between the publisher and the Columbus
Union that all disputes regarding a new contract and
scale to become effective at the expiration of this con-
tract, which cannot be settled by negotiations, shall be
determined by arbitration as hereinafter provided in
Article 16 hereof; and this contract shall remain in
force until all disputes are settled by negotiation or
arbitration, provided that the party requesting arbitra-
tion take all necessary steps to have the arbitration
board formed within thirty (30) days of the date of the
request of either party in accordance with the provi-
sions hereinafter provided.
During the period of time, 1947 to date, there have been
no work stoppages by the employees (of the R. W. Page
Corporation) represented by the Respondent Union.
With respect to the collective-bargaining agreement, re-
ferred to above, expiring on August 31, 1973, the facts re-
veal that the parties engaged in collective bargaining and
agreed upon all terms of a contract excepting the inclusion
or exclusion of the arbitration clause therein. Said dispute
was referred to an arbitration board for determination pur-
suant to the existing arbitration clause . By agreement,
thereafter, the parties agreed that one named member of
the Board could render the arbitration decision. Thereaf-
ter, said arbitrator,2 on March 22, 1972, rendered his arbi-
tration decision to the effect that the arbitration clause, as
it had been in prior contracts, be in the contract which was
effective from September 1, 1970, to August 31, 1973.
In addition to the referred to arbitration clause (set forth
in the September 1, 1970, to August 31, 1973, contract as
art. One , sec. 2), the collective-bargaining agreement con-
tained sections relating to grievances and arbitration and is
attached hereto as "Appendix B."
Some contracts may have been entered into at a date later than the
expiration of the preceding contracts. If so, such contracts were agreed to be
retroactive to the expiration date of the old contract
2 Said arbitrator was not a member of management or of the Union.
Thus, said arbitration was by a neutral person
COLUMBUS PRINTING PRESSMEN UNION NO. 252 277
B. Bargaining-1973
On June 27 , 1973, the Respondent by letter , requested
The R . W. Page Corporation to bargain with respect to the
terms of a new collective-bargaining agreement to succeed
the September 1, 1970-August 31, 1973 , agreement. The
Respondent proposed the existing collective -bargaining
agreement but with certain additional proposals or
changes . The Respondent's proposal constituted a proposal
that the existing arbitration clause (art. One, sec. 2) contin-
ue to be in the new collective -bargaining agreement. The
R. W. Page Corporation , by letter , on July 23 , 1973, sub-
mitted to the Respondent counterproposals for a new con-
tract and proposed elimination from the new contract of
the existing arbitration clause (art. One , sec. 2). It may be
said that The R . W. Page Corporation proposals used the
existing contract as a basic proposal modified by proposed
changes and the elimination of the arbitration clause.
Thereafter the parties engaged in a number of collective-
bargaining sessions . The positions of the parties were con-
sistent with respect to the arbitration clause issue. The Em-
ployer insisted that such clause not be in the contract to be
agreed upon . The Respondent insisted that any contract
agreed upon had to have such arbitration clause.
Statements at such sessions (between July 23 and Octo-
ber 29, 1973) by Respondent 's representatives as to the fact
that the arbitration clause had to be in any new contract,
and as to why the Respondent needed such clause, are
revealed by the following credited excerpts from Bruni's
testimony.
Q. What were some of their stated reasons for in-
sisting that it remain?
A. Gosh, they were numerous, but I can remember
Mr. Morris saying that as long as I'm in the Pressroom
working here that will never be removed from the con-
tract . He even stated that you could not buy it out of
the contract , we won't give it to you and we won't sell
it to you , and at one time , he even used a figure of
"you couldn ' t buy it for a million dollars ." Now Mr.
Larry Smith , on many occasions during these negotia-
tions , said that it had to stay in, that it had been arbi-
trated three years prior to that, it was in the contract
and that the Union felt very strong that it remain in.
Now, we even, at some point in the negotiations,
which I would say probably in August-
were to strike the paper , that they knew they could not
win the strike-because of the small unit and that they
had no other Unions to support them in a walk-out of
any kind and that they needed this new contract arbi-
tration in there to continue contracts with the R. W.
Page Corporation.
As of the end of an October 29, 1973, bargaining session,
the parties were in disagreement as to a new contract as to
(1) the inclusion or exclusion of the referred to arbitration
clause, (2) the amount of money (apparently wages), and
(3) the Union 's request for an extra man concerning the
color "hump ." The Employer , at the end of the negotiating
session on October 29 , 1973, asked the Respondent Union
to have a vote of the membership with respect to the
Employer's proposals.
Thereafter, on October 30, 1973 , the Respondent advised
the Employer that the union membership had turned down
the Employer's offer of October 29 , 1973, that the reasons
were the lack of any new contract arbitration clause and
the lack of more "manning" when excess color was on the
color hump.
Thereafter the parties held a negotiating session on No-
vember 19 , 1973. What occurred is revealed by the follow-
ing stipulations excerpted from the record:
MR. STYLES : Okay. General Counsel would offer to
stipulate that a meeting was held between the parties
on November 19, 1973, and that this meeting-the dis-
cussion centered around these two issues which were
the excess color on the color hump and the new con-
tract arbitration clause , and as a result of this the
Company agreed to add more money on the second
and third year of the proposed contract in return for
the Union backing off on the excess color man on the
hump.
MR. MCLELLAN: We so stipulate.
JUDGE STONE: All right , Mr. Wolfe?
MR. WOLFE : The Charging Party will so stipulate.
JUDGE STONE : All right. Go ahead.
MR. STYLES : As a result of this , on November 19,
1973 of this meeting, the Company again requested
the Union to take this to a membership meeting to
vote on whether they would accept this and that
Respondent's representative , Smith , stated at this
meeting that they would have a vote of their members
on the Company offer, but that we personally could
* not recommend approval of the new contract if a new
A. Okay. Well, I can recall Mr. Smith saying that
this by leaving new contract arbitration in the contract
this is our guarantee of continuing contracts with the
R. W. Page Corporation in Columbus , Georgia. I'm
trying to recall any other remarks in this area.
Q. Did he say that last one on more than one occa-
sion?
A. Oh, yes, it was repeated.
contract arbitration clause was not included in it.
MR. MCLELLAN : So stipulate.
JUDGE STONE : How about you, Mr. Wolfe?
MR. WOLFE : Charging Party will so stipulate.
The parties further stipulated that the following occurred
on November 21, 1973, as is revealed by a stipulation ex-
cerpted from the record:
MR. STYLES : Yes, sir . That on or about November
„ * * 21, 1973, Respondent 's representative , Red Morris,
A. Well, the only other thing that was brought up at
one time and probably at that time, was that the
Union in Columbus was a small Union , that if they
you have his real name , Johnson C ., called Michael
Bruni of the Charging Party, the Charging Party's rep-
resentative , and advised in words to the effect , that if
the Company would leave the new contract arbitra-
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion clause in the contract that the Union had voted to
accept the Company's offer of November 19, 1973,
and would like to have a meeting to finalize and then
the Union would sign a new contract.
On November 23, 1973, the Employer sent the following
letter to the Respondent:
November 23, 1973
Mr. Johnson C. Morris
Secretary-Treasurer
Columbus Printing Pressmen
& Assistants' Union - Local 252
Post Office Box 572
Phenix City , Alabama 36867
Dear Mr. Morris:
Regarding your telephone conversation with
Mike Bruni of Wednesday , November 21, 1973, we
want to make certain we have a complete under-
standing what we have agreed upon in the new con-
tract negotiations.
The new contract will contain all the provisions
of the contract which expired August 31 , 1973, ex-
cept as follows:
Article One, Section 1. The dates will be changed
to September 1, 1973, to and inclusive of August 31,
1976.
Article Three , Section 5 , shall be changed as fol-
lows:
(a) ....assistant foreman shall be paid not less
than fifty (50) cents per hour above the journeyman
scale.
(b) ....man (or Journeyman) in charge, when
so engaged , shall be paid not less than fifty (50)
cents per straight time hour, above the journeyman
scale.
(c) Journeymen : Effective September 1, 1973,
shall be paid $4.55 per hour, day and $4 .69 per hour
night . Effective September 1, 1974, shall be paid
$4.78 per hour , day and $4.92 per night . Effective
September 1, 1975, shall be paid $5 .00 per hour, day
and $5. 14 per hour night.
Article Six , Section 17. (c), shall be changed to 10
years on January 1, 1974.
Under Misc. Provisions and Additions to Crew. A
new section will be added providing that one (1)
additional journeyman shall be added to the crew
when both folders are in operation.
A new clause will be added providing that neither
the company nor the union shall discriminate in em-
ployment because of race , religion , color , sex, age or
nation origin.
It is understood that the union insists, as a condi-
tion for entering into a new contract, that it must
contain a "new contract arbitration clause" equiva-
lent to that contained in Article One, Section 2, of
the contract which expired August 31 , 1973, and
that the company is unwilling to accept the inclu-
sion of such a clause.
If this is in accordance with your understanding,
please so indicate by signing and returning the en-
closed copy of this letter.
Yours very truly,
Glenn Vaughn
General Manager
bd
The above correctly sets forth our understanding.
November , 1973.
Johnson C. Morris
Secretary-Treasurer
On November 24, 1973 , the Respondent sent the follow-
ing letter to the Employer:
November 24, 1973
Mr. Glenn Vaughn
General Manager
Ledger-Enquirer
P. O. Box 711
Columbus , Georgia 31902
Dear Mr. Vaughn:
This will acknowledge receipt of your letter of No-
vember 23 , 1973 regarding proposed changes in the
agreement between The R. W. Page Corporation
and Columbus Printing Pressmen & Assistants'
Union , Local 252.
Local 252 does not approve the proposed changes
unless the Company agrees the "New contract arbi-
tration clause" shall remain in the contract.
With best wishes and kind regards, I am
Very truly
/s/ Johnson C. Manir
Secretary-Treasurer
c/c M. A. Bruni
On December 11, 1973, the Employer sent a letter to the
Respondent. In said letter, the Employer set forth its con-
tention that the parties were in agreement on all terms ex-
cepting the "arbitration" clause, that such "arbitration"
clause concerned a nonmandatory and permissive subject
of bargaining, that the Respondent could not persist in de-
manding such a clause as an ultimatum , that the law would
require the Respondent to withdraw its proposal for a
"new contract arbitration clause" and execute the contract
to which the parties have otherwise agreed . The Employer's
letter indicated that the agreement of the parties had been
executed and dated by the Employer , and that it was sub-
mitting the same to the Union for execution.
C. Events of February 1974
On February 13, 1974, the Respondent Union, by letter,
requested a meeting of the joint standing committee for the
purpose of moving toward a settlement (as to a new con-
tract to be agreed upon).
On February 20, 1974, the Employer filed the unfair la-
bor practice charges involved in this case.
On February 22, 1974, the Union, by Larry Smith, sent
the Employer a letter . The Employer's February 26, 1974,
COLUMBUS PRINTING PRESSMEN UNION NO. 252
reply indicates in effect that the letter was similar in nature
to the February 13, 1974, letter.
On February 26, 1974, the Employer, by letter, advised
the Respondent (in reply to a letter from the Respondent,
dated February 22, 1974, apparently in the same vein as
the February 13, 1974, letter) that the Employer's position
was that there was no basis to form or convene the point
standing committee, that the parties had a binding agree-
ment which the Union refused to recognize and execute,
that the terminal arbitration language was inoperative, and
that the Employer would not release the Union from its
agreement and begin anew.
D. Events of March 1974
On March 5, 1974, the Respondent Union, by letter to
the Employer, requested that the dispute as to a new con-
tract be referred to arbitration as provided in article sixteen
of the agreement. In said letter, the Respondent Union
named its designated representatives for the arbitration
panel. Apparently on March 2, 1974, the Respondent
Union mailed a list of four named persons to be considered
as arbitrators for such proposed arbitration. Thereafter, on
March 10, 1974, Respondent Union, by letter to the Em-
ployer, referred to such prior communication, reiterated
the names of such persons proposed for consideration as
arbitrators, and added one more person to such list. On
March 10, 1974, Respondent Union, by letter to the Em-
ployer, set forth in effect its contractual provision conten-
tions for arbitration consideration.
On March 19, 1974, the Employer, by letter to the Re-
spondent Union, set forth its contention that the parties
had reached an agreement and that there was nothing to
arbitrate, that the only dispute concerned article One, sec-
tion 2 of the old contract, that such provision was illegal,
unenforceable, inappropriate, and inoperative under con-
trolling law. In said letter, the Employer described the
Union's position in the Union's letter of March 10, 1974, in
effect as being that all agreements were null and void and
that either party was free to present to the arbitrator any
proposed contract language it deemed desirable and appro-
priate.
E. Impasse
In summary, considering all of the foregoing, I conclude
and find that the Respondent insisted to the point of im-
passe (with such impasse commencing on November 19,
1973), that the Company agree to include in the collective-
bargaining agreement (being negotiated for) a clause as
follows:
It is agreed between the publisher and the Columbus
Union that all disputes regarding a new contract and
scale to become effective at the expiration of this con-
tract, which cannot be settled by negotiations, shall be
determined by arbitration as hereinafter provided in
Article 16 hereof; and this contract shall remain in
force until all disputes are settled by negotiation or
arbitration, provided that the party requesting arbitra-
279
tion take all necessary steps to have the arbitration
board formed within thirty (30) days of the date of the
request of either party in accordance with the provi-
sions hereinafter provided.
Summarized, such clause provided that the parties would
arbitrate any dispute regarding a new contract (such con-
tract being the contract to be negotiated for after the expi-
ration of the contract currently being negotiated for) which
could not be settled by negotiation. By insisting upon such
clause, the Respondent in effect was insisting that the Em-
ployer agree that a future contract be arrived at by negotia-
tion if possible, but if not, by arbitration, and that the
question of the inclusion of an arbitration clause in such
future contract be itself a possible subject of such arbitra-
tion.
F. Contentions
The General Counsel and the Charging Party contend
that the insistence by the Respondent, to a point of im-
passe, for the inclusion of the arbitration clause, described
above, constituted conduct violative of Section 8(b)(3) of
the Act because such clause constituted a nonmandatory
subject of bargaining.
The Respondent contends that there is no precedence
for determining that such clause is a nonmandatory subject
of bargaining, that the General Counsel committed error
by not deferring this case to arbitration, that the Board
should honor a 1972 arbitration award whereby an identi-
cal clause was arbitrated into the expired 1970=73 contract,
that Respondent did not insist upon said clause as a condi-
tion of continuing bargaining, but was merely insisting
upon arbitration of such clause as a matter of contract
right.
G. Conclusions
I. The arbitration clause involved in this proceeding,
and set out in detail above, does not come within the classi-
fication of a mandatory subject of bargaining. It does not
pertain to setting terms of wages, hours, or other condi-
tions of employment in the contract being negotiated. It
does not vitally affect the terms of wages, hours, or other
conditions of employment in the contract being negotiated.
Rather, it injects into the negotiations for a current con-
tract matter which does not concern itself with the terms
and conditions of employment of the employees during the
period of such contract. Such procedure changes the meth-
od for arriving at contract terms, after a dispute in collec-
tive bargaining, from one of collective bargaining to one of
arbitration. As a result, arbitrated terms of a contract
would not constitute a mutual agreement of such terms but
a compelled arbitrated requirement.
Section 8(d) of the Act defines collective bargaining as
follows: "For the purposes of this section, to bargain col-
lectively is the performance of the mutual obligation of the
employer and the representative of the employees to meet
at reasonable times and confer in good faith with respect to
wages, hours, and other terms and conditions of employ-
ment, or the negotiation of an agreement or any question
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arising thereunder, and the execution of a written contract
incorporating any agreement reached if requested by either
party, but such obligation does not compel either party to
agree to a proposal or require the making of a concession
The Supreme Court of the United States essentially sum-
marized the guidelines for the determination of mandatory
or nonmandatory subjects of bargaining in Chemical
Workers v. Pittsburgh Glass, 404 U.S. 157, 178, 179. Thus
the Supreme Court set forth:
Section 8(d) of the Act, of course, does not immutably
fix a list of subjects for mandatory bargaining. See,
e.g., Fibreboard Corp. v. N.L.R.B., supra, at 220-221
(Steward, J., Concurring); Richfield Oil Corp. v.
N.L.R.B., 97 U.S. app. D. C. 383, 389-390, 231 F.2d
717, 723-724 (1956). But it does establish a limitation
against which proposed topics must be measured. In
general terms, the limitation includes only issues that
settle an aspect of the relationship between the em-
ployer and employees. See, e.g., N.L.R.B. v. Borg-
Warner Corp., 356 U.S. 342 (1958). Although normally
matters involving individuals outside the employment
relationship do not fall within that category, they are
not wholly excluded. In Teamsters Union v. Oliver, 358
U.S. 285 (1959), for example, an agreement had been
negotiated in the trucking industry, establishing a
minimum rental that carriers would pay to truck own-
ers who drove their own vehicles in the carriers' ser-
vice in place of the latter's employees. Without de-
termining whether the owner-drivers were themselves
"employees," we held that the minimum rental was a
mandatory subject of bargaining, and hence immune
from state antitrust laws, because the term "was integ-
ral to the establishment of a stable wage structure for
clearly covered employee-drivers." United States v.
Drum, 368 U.S. 370, 382-383, n. 26 (1962).18
Similarly, in Fibreboard Corp. v. N.L.R.B., supra, at
215, we held that "the type of `contracting out' in-
volved in this case-the replacement of employees in
the existing bargaining unit with those of an indepen-
dent contractor to do the saame work under similar
conditions of employment-is a statutory subject of
collective bargaining...." As we said there, id., at
213, "the work of the employees in the bargaining unit
was let out piecemeal in Oliver, whereas here the work
of the entire unit has been contracted out."
"Specifically, we noted in Oliver, 358 U.S., at 294: "[The collec-
tive -bargammg agreement constitutes] . . . a direct frontal attack
upon a problem thought to threaten the maintenance of the basic
wage structure established by the contract The inadequacy of a
rental which means that the owner makes up his excess costs from his
driver's wages not only clearly bears a close relation to labor's efforts
to improve working conditions but is in fact of vital concern to the
camer's employed drivers; an inadequate rental might mean the pro-
gressive curtailment of jobs through withdrawal of more and more
camer-owned vehicles from service."
I have found no Board or court cases holding that "in-
terest-arbitration," 3 the type of clause involved in the is-
Relating to arbitration clauses providing in effect that at the termination
of the existing contract the parties will abritrate the terms of a new contract
sues herein, is a mandatory subject of bargaining. There
are Board and court cases which hold in effect that "griev-
ance-arbitration" is a mandatory subject of bargaining.
"Grievance-arbitration" and "interest-arbitration" may be
said to be similar to the extent that both have the terminol-
ogy of arbitration therein and both relate to the arbitration
of disputes. Unlike "interest-arbitration," grievance-arbi-
tration, of the type found to be a mandatory subject, re-
lates to the arbitration of disputes concerning terms and
conditions of employment under an existing contract. The
arbitration is essentially a procedure to determine who is
right or wrong in their interpretation of the existing con-
tract. The "grievance-arbitration" clause, providing a
means for resolution of disputes in areas defined, and
therefore narrowed, by the contract, gives realistic meaning
to rights and responsibilities. Similar to a coat of paint on
a house, the addition of color to a liquid, the "grievance-
arbitration" clause is an integral part of the terms and con-
ditions of employment of the contract. It is thus a manda-
tory subject of bargaining within the guidelines set forth by
the Supreme Court.
On the other hand, as set forth above, "interest-arbitra-
tion" clauses of the type in issue in this case do not regulate
the terms and conditions of employment of the employees
in the contract being negotiated, do not vitally affect such
terms and conditions of employment, and are not an integ-
ral part of such terms and conditions of employment.
"[W]hile not determinative, it is appropriate to look to
industrial bargaining practice in appraising the propriety of
including a particular subject within the scope of mandato-
ry bargaining." Fibreboard Paper Products Corp. v.
N.L.R.B., 379 U.S. 203 (1964). In the instant case, the evi-
dence reveals that the International Union, of which the
Respondent is a constituent part, has had contracts with
various employees in the same industry as the Employer
herein for many years .4 and that such contracts have con-
tained clauses similar to the arbitration (interest) clause
involved herein. It should be noted, however, that the pres-
ence in a collective-bargaining contract of a "permissive"
subject of bargaining does not transform such subject into
a "mandatory subject of bargaining." Chemical Workers v.
Pittsburgh Glass, 404 U.S. 157, 187. Thus, the evaluation of
industrial practice with respect to its meaning as to wheth-
er a subject of bargaining is mandatory or not appears to
relate to issues such as practice of "subcontracting" and to
such matter as vitally affects or constitutes an integral part
of terms and conditions of employees.5
In sum, I am not persuaded that the industrial practice
of having similar clauses adds such meaning with respect
to the terms and conditions of employment of employees
as to make a similar clause itself a term and condition of
employment. Rather, such (interest) arbitration clause con-
stitutes at most a "permissive" subject of bargaining which
does not become a "mandatory" subject of bargaining.6
Administrative Law Judge Feldesman, in his decision in
Mechanical Contractors Association of Newburg, set forth an
if such terms are not reached by negotiation
° These facts are not in dispute and are so found
'See Local 24, Teamsters Union v. Oliver, 358 U.S. 283; Fibreboard Paper
Products Corp v. N L.R B, 379 U.S. 203 (1964).
6 Chemical Workers v. Pittsburgh Plate Glass, 404 U S. 157, 187
COLUMBUS PRINTING PRESSMEN UNION NO. 252
excellent discussion 7 of the history of collective bargain-
ing, of arbitration, and of the problem related to having
collective bargaining without resort to economic force
without having governmental compelled agreements. Ad-
ministrative Law Judge Feldesman concluded in effect that
an "interest-arbitration" clause of the type involved herein
was a nonmandatory subject of bargaining. Board Member
Fanning's dissenting opinion revealed a similar conclusion.
In effect Administrative Law Judge Feldesman and Board
Member Fanning viewed the facts of the case as revealing
a clause which provided for arbitration of the contract
terms for a new contract, and that a clause which provided
for arbitration of the contract terms to arrive at a new
contract constituted a nonmandatory subject of bargain-
ing. I agree with Administrative Law Judge Feldesman and
Board Member Fanning that a clause providing for the
arbitration of the contract terms to arrive at a new contract
is a nonmandatory subject of bargaining, and I adopt by
reference their reasoning thereto.
I have found nothing in the congressional history relat-
ing to Federal arbitration statutes or the decisional law of
the United States Supreme Court to reveal an intent that
arbitration clauses , relating to arbitrating terms to be in a
new contract, be a mandatory subject of bargaining.
In this respect, I note that the United States Supreme
Court in Textile Workers Union v. Lincoln Mills of Ala., 77
S. Ct. 912, 915, set forth, in a footnote, references to con-
gressional reports relating to the definition of "collective
bargaining" and to the legislation leading to the enactment
of Section 301 of the Act. The house report relating thereto
set forth "Most agreements provide procedures for settling
grievances , generally including some form of arbitration as
the last step. Consequently, this clause will operate in most
cases , except those involving the negotiation of new con-
tracts."
There is, however, a conflict between circuits as to
whether agreements to arbitrate the terms of a new con-
tract into such new contract can be enforceable in the
courts under Section 301 of the Labor- Management Rela-
tions Act, 1947. As an example, the Fifth Circuit Court of
Appeals decision, in Austin Mailers Union No. 136 v. News-
papers, Inc., 329 F.2d 312 (1964), stands for a denial of
enforcement of such a clause, whereas the Fourth Circuit
Court of Appeals decision in Winston-Salem Printing Press-
men v. Piedmont Publishing Co., 393 F.2d 221 (1968), stands
for enforceability of such a clause.
The guidelines for Court action relating to arbitration
are revealed in summary form as (1) in United Steelworkers
v. American Mfg. Co., 363 U.S. 564, 568-The function of
the court is limited "to ascertaining whether the party seek-
ing arbitration is making a claim which on its face is gov-
7 See such discussion reported in Mechanical Contractors Association of
Newburg, 202 NLRB 1 (1973). Although the Board reversed the Administra-
tive Law Judge 's findings and recommendations in such case , I note that the
Board majority did not find it necessary to determine whether such clause
involved therein constituted a mandatory subject of bargaining or not since
the Board viewed the Industrial Relations Council not as a neutral arbitra-
tion panel but as an extension (arm) of collective bargaining with equal
representatives from both sides. Board Member Fanning dissented and
agreed with the Administrative Law Judge that such Industrial Relations
Council clause was a nonmandatory subject of bargaining.
281
erred by the contract;" (2) in United Steelworkers v. War-
rior & Gulf Navigation Co., 363 U.S. 574-doubts as to the
coverage of the arbitration clause should be resolved in
favor of arbitration; and (3) in United Steelworkers v. En-
terprise Wheel & Car Corp., 363 U.S. 593-an arbitrator's
award must be enforced by the courts even if the court's
interpretation of the contract would differ from the arbitra-
tor; and (4) as indicated in Carey v. Westinghouse Electric
Corporation, 375 U.S. 261, 270, 271, 272, in the area of the
Board's exclusive jurisdiction (unfair labor practice deter-
mination) any conflicting arbitration award must yield to
the Board's valid determination in fact, "(t)he superior au-
thority of the Board may be invoked at any time."
Although the general principles set forth above clearly
establish that the interest-arbitration clause involved in this
proceeding is a nonmandatory subject of bargaining, cer-
tain specifics in the clause also so clearly reveal to the same
effect.
It appears fundamental that the exclusive bargaining
representative and the employer have respective rights and
obligations endowed upon them by the statute and Sec-
tions 8(a)(5), 8(b)(3), 8(d), and 9 thereof. Such rights and
obligations do not constitute terms and conditions of em-
ployment of employees, do not vitally affect the meaning
of such terms, and are not a part of the integral structure of
such terms. Board and court law have consistently found
that insistance to a point of impasse in derogation of such
status is violative of the bargaining obligation of the party
so insisting. Section 8(b)(1)(B) relating to the question of
restraint or coercion of an employer as to the selection of
his bargaining representative appears to be a legislative en-
actment of the principle applied as a matter of case law
interpretation of the statute with respect to the exclusive
collective-bargaining representative. Within' the meaning
of Borg-Warner,8 the Union's insistence of a proposal
which in effect limited the employer's bargaining represen-
tative in bargaining, when carried to a point of impasse,
clearly involved a nonmandatory item of bargaining.
In sum, I conclude and find that the interest-arbitration
clause involved in this proceeding constituted a nonman-
datory subject of bargaining.'
2. Although I am not persuaded that the question of
"waiver" is a relevant issue in this proceeding, I am per-
suaded that in fact there has been no "waiver" of the
Employer's right with respect to the issues in this case.
The "interest-arbitration" clause, identical to the clause
in issue herein, was arbitrated into the 1970-73 contract
over the opposition of the Employer. Under such circum-
s N.L R B v Borg-Warner Corp., 356 U.S. 342 (1958)
9 Even if the interest-arbitration clause involved herein were limited to the
arbitration of mandatory subjects of bargaining for inclusion in a future
contract , such clause would be a nonmandatory subject of bargaining with-
in the meaning of Borg-Warner. The Employer herein , and Administrative
Law Judge Feldesman in the Mechanical Contractors case advert to the
possible perpetuity problem that exists when such interest-arbitration clause
provides for the arbitration itself of whether an arbitration clause would be
included in such contract term Such provision itself is also clearly in the
realm of a nonmandatory subject of bargaining. It is not necessary to de-
termine in this proceeding whether or not such provision , providing for
arbitration of whether an arbitration clause should be included , is a permis-
sive or nonpermissive subject of bargaining As set forth later herein, in and
of itself such a provision does not constitute a waiver of the bargaining
rights of the parties
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stances, said clause does not reveal a clear and unequivocal
waiver of the Employer's rights.
3. The Respondent contends that the Board should "de-
fer" to the arbitration award made in 1972 wherein the
"interest-arbitration" clause in the 1970-73 contract was
arbitrated into said contract.
It is sufficient to say that the facts relating to such arbi-
tration reveal that the arbitrator did not consider the ques-
tion of "mandatory" or "nonmandatory" subject of bar-
gaining, did not consider the question of unfair labor
practices, and did not consider the issue within the mean-
ing of Section 8(a)(5) or 8(b)(3) of the Act.10 Under such
circumstances, it is not Board policy to honor such awards
in an unfair labor practice proceeding."
3. The Respondent contends that the Regional Director
committed error by issuing the complaint in this proceed-
ing and by not deferring this matter to arbitration. Since
the General Counsel (by the Regional Director) has the
exclusive authority and discretion in the issuance of com-
plaints, it is settled Board policy not to review such acts,
especially if there is no evidence of arbitrary and capri-
cious conduct. It is clear that the issues presented reveal an
absence of arbitrary or capricious conduct in the issuance
of the instant complaint.
Although the Respondent did not so phrase his conten-
tion, I think it would be supertechnical not to consider his
contention as a contention that the Board should defer this
matter to arbitration.
The issue in this case is clearly an unfair labor practice
issue and not an issue essentially involving the interpreta-
tion of an existing contract. Although contractual terms
are involved, such terms are only involved as part of the
evidence to be considered in determining the unfair labor
practice issue .12 One of the major unfair labor practice is-
sues, that of impasse, must be determined by the Board.
5. The Respondent contends that it did not insist that
the arbitration interest clause be included in the contract as
a condition of continuing bargaining, but was merely in-
sisting upon its right to invoke arbitration as to unresolved
issues.
Essentially, the facts as found are contrary to
Respondent's contentions. The facts as found reveal that
the Respondent did insist upon the interest-arbitration
clause for inclusion in the contract, to a point of impasse.
The facts reveal that after such impasse, the Respondent
did insist for arbitration of the dispute as to such unre-
solved issue (the inclusion of the interest-arbitration clause
in the contract).
H. Final Conclusion
In sum, from all the foregoing, I conclude and find that
Respondent insisted, to the point of impasse, for the inclu-
sion of a provision, a nonmandatory subject of bargaining,
in the contract. By such conduct, the Respondent has vio-
lated Section 8(b)(3) of the Act.13
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Employer's opera-
tions described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent violated Section
8(b)(3) of the Act by insisting on a nonmandatory contract
provision to which the Employer objected, it will be recom-
mended that the Respondent be ordered to cease and de-
sist from such conduct and take certain affirmative action
in order to effectuate the policies of the Act.
Since the Respondent has violated Section 8(b)(3) of the
Act by insisting to a point of impasse for the inclusion in a
contract of a nonmandatory subject of bargaining, since
the obligation to bargain continues after impasse, the fur-
ther insistance that the "nonmandatory" subject of bar-
gaining be arbitrated is in effect a continuation of the same
violative conduct. It will therefore be recommended that
the Respondent desist from such insistance for arbitration
of the nonmandatory subject of bargaining.
I decline to recommend General Counsel's requested
"remedy" that the Respondent be required to sign the
"agreed" contract. The overall facts reveal that the
Respondent's bargaining position and agreements con-
templated the inclusion of the "arbitration" clause which
was never agreed to. The Respondent's clear position as to
the "money items" and "manning of the color hump" was
agreement thereto if the arbitration clause proposed by the
Union were agreed to. It is clear that the parties have not
in fact agreed to the total contract terms. A remedy requir-
ing the Respondent to sign a contract not completely
agreed to is therefore inappropriate.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The R. W. Page Corporation is an Employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Columbus Printing Pressmen & Assistants'
Union No. 252, Subordinate To IP & GCU, the Respon-
dent, is a labor organization within the meaning of Section
2(5) of the Act.
3. The Respondent is the statutory representative of the
13 N L R B v Borg-Warner Corp., 356 U S 342 (1958). Cf. Mechanical
10 It is clear that the arbitration award in 1972 would have only persuasive Contractors Association of Newburg, 202 NLRB 1 (1973), the dissenting opin-
value at the most with respect to the issues in this proceeding It involved a ion of Board Member Fanning and the decision of Administrative Law
1972 dispute and not the instant dispute. Judge Feldesman Board Member Fanning and Administrative Law Judge
1 Trygon Electronics, 199 NLRB 404 (1972). Feldesman viewed the facts therein essentially as I have found the facts
12 Mechanical Contractors Association of Newburg, 202 NLRB 1 (1973) herein.
COLUMBUS PRINTING PRESSMEN UNION NO. 252 283
R. W. Page Corporation employees in the appropriate col-
lective-bargaining unit described as all journeymen, press-
men and apprentice (or assistants) pressmen employed in
the pressroom of the R. W. Page Corporation, but exclud-
ing all other employees, all janitors and mechanical super-
intendents, office clericals, guards and supervisors as de-
fined in the Act.
4. By insisting to the point of impasse, as a condition of
a new collective-bargaining agreement with the Employer,
on the continuation of the arbitration clause (art. One, sec.
2, of the 1970-73 contract), a provision which requires ar-
bitration of new contract terms including said clause itself
and which consequently is not a mandatory subject of bar-
gaining, the Respondent has since November 19, 1973, en-
gaged in unfair labor practices within the meaning of Sec-
tion 8(b)(3) of the Act.10
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 15
Respondent, The Columbus Printing Pressmen & Assis-
tants ' Union No. 252, Subordinate To IP & GCU, its offi-
cers, agents, and representatives, shall:
1. Cease and desist from:
(a) Refusing to bargain with the Employer, with respect
to the appropriate bargaining unit described below, by in-
sisting and demanding that the Employer agree as a condi-
tion of any collective-bargaining contract on the inclusion
therein of a provision that the Employer arbitrate terms for
inclusion in a new contract, including the question of the
same arbitration provision.
The appropriate collective-bargaining unit for which the
Respondent is the statutory exclusive collective-bargaining
representative is:
All journeymen, pressmen and apprentice (or assis-
tants) pressmen employed in the pressroom of The
R. W. Page Corporation, but excluding all other em-
ployees, all janitors and mechanical superintendents,
office clericals, guards and supervisors as defined in
the Act.
(b) In any like or related manner refusing to bargain
collectively with the Employer by insisting upon the inclu-
sion in any collective-bargaining agreement of any clause
or other proposal not involving wages, hours, or other
terms and conditions of employment.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Bargain with the Employer concerning wages, hours,
and other terms and conditions of employment of the em-
ployees in the appropriate collective-bargaining unit de-
scribed above.
(b) Notify The R. W. Page Corporation, in writing, that
the Respondent will not insist that the Employer agree to
arbitrate new contract terms for inclusion in a contract as a
condition of entering into a collective-bargaining contract
with the Employer.
(c) Post at Respondent's offices and meeting halls, and
all places where notices to members are customarily post-
ed, copies of the attached notice marked "Appendix A." 16
Copies of said notice on forms provided by the Regional
Director for Region 10, after being duly signed by
Respondent's representatives, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by Respon-
dent for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Sign and mail sufficient copies of said notice to the
aforesaid Regional Director for forwarding to The R. W.
Page Corporation for information and, if they are willing,
for posting by them in all locations where notices to em-
ployees are customarily posted.
(e) Notify the Regional Director for Region 10, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
14 The complaint alleged that such conduct has occurred since July 13,
1973. Bruin, an employee representative, testified to the effect that such
conduct occurred after the Company's written proposals (by letter dated
July 23, 1973) and fixed the initial timing as of July 13, 1973 Under such
circumstances , since the facts clearly reveal violative conduct as of Novem-
ber 19. 1973, and since the remedy will not be affected otherwise, I make the
conclusion of law as indicated
15 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
16 In the event that the Board 's 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 A
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL bargain with The R. W. Page Corporation
concerning wages, hours, and other terms and condi-
tions of employment for the employees in the appro-
priate collective-bargaining unit set out herewith:
All journeymen, pressmen and apprentice (or as-
sistants) pressmen employed in the pressroom of
The R. W. Page Corporation, but excluding all
other employees, all janitors and mechanical super-
intendents, office clericals, guards and supervisors
as defined in the Act.
WE WILL NOT refuse to bargain with The R. W. Page
Corporation with respect to the appropriate collective-
bargaining unit described above, by insisting and de-
manding that The R. W. Page Corporation (1) agree
as a condition of any collective-bargaining contract on
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the inclusion therein of a provision that The R. W.
Page Corporation will arbitrate terms for a new con-
tract (for inclusion in a future contract), including the
question of the same arbitration provision, or (2) that
The R. W. Page Corporation agree to arbitrate the
terms of a new contract for inclusion in such new con-
tract as a condition of entering into a collective-bar-
gaining contract with The R. W. Page Corporation.
WE WILL NOT in any like or related manner refuse to
bargain with The R. W. Page Corporation by insisting
upon the inclusion in any collective bargaining agree-
ment of any clause or other proposal not involving
wages, hours, and other terms and conditions of em-
ployment.
THE COLUMBUS PRINTING PRESSMEN & ASSISTANTS'
UNION No. 252, SUBORDINATE To IP & GCU
APPENDIX B
ARTICLE FOURTEEN
No Strike, No Lock-Out
Section 80. During the three year term of this agreement,
and any extension or renewal of the same, the Publisher
shall not institute or engage in any lock-out of the employ-
ees covered hereby or of the Union; and Columbus Union
and the employees covered hereby, acting individually or
in concert, shall not institute or engage in any strike, walk-
out, work-stoppage, slow-down or boycott, or quit in suffi-
cient numbers to hamper or interfere with prompt and reg-
ular publication. And no employee or employees covered
hereby shall aid or encourage directly or indirectly such
practices against the Publisher.
Section 81. In the event a spontaneous strike, or other
situation named in Section 80 or this Article, not caused,
directed or sanctioned by Columbus Union, occurs during
the time this agreement is in force or effect, Columbus
Union shall not be responsible in damages to the Publisher
therefor, provided Columbus Union, with reasonable
promptness, disavows the strike or other action and there-
after, in good faith, does all in its power to end the situa-
tion and to enable the Publisher to resume early publica-
tion of said newspapers.
ARTICLE FIFTEEN
Disputes
Section 82. In the event a difference arises between the
Columbus Union or any employee covered hereby and the
Publisher, all work, all working conditions, the scale of
wages and the hours of work, prevailing prior to the time
said dispute arose, shall continue without interruption until
said difference or dispute is adjusted between all parties
concerned or a final decision binding upon all parties is
made by arbitration as herein provided (which agreed ad-
justment or final decision may or may not be retroactive to
the date the difference occurred).
ARTICLE SIXTEEN
Grievances and Joint Standing Committee
Section 83. Should any difference or dispute concerning
the meaning, interpretation, violation or application of this
Contract, arise between the Columbus Union or any em-
ployee covered hereby, and the Publisher, and the same is
not promptly adjusted to the satisfaction of all concerned,
the same shall be immediately referred in writing to a Joint
Standing Committee.
Section 84. A Joint Standing Committee of four (4)
members shall be appointed. Two (2) members of said
Committee shall be named by the Publisher and two (2)
members thereof shall be named by the Union. In case of a
vacancy on the said Joint Standing Committee from any
cause, said vacancy shall be filled immediately by the ap-
pointment of a new member by a party in whose represen-
tation on the Joint Standing Committee the vacancy oc-
curs.
Section 85. Such Joint Standing Committee shall meet as
promptly as practicable but within fifteen (15) days after
such referral and shall proceed forthwith to decide such
difference or dispute. The decision of a majority of said
Committee shall control and shall be final and binding
upon all parties.
Section 86. If the representatives of either party on the
Committee refuse or fail to meet and proceed within said
period of fifteen (15) days as provided in Article Sixteen,
Section 85, the matter may be referred and submitted by
either party to a Board of Arbitration as provided in Arti-
cle Sixteen, Section 87.
Section 87. If a majority of the Standing Committee fail
for any reason to decide the dispute within thirty (30) days
after said referral, the following procedure (in the event the
International Arbitration Agreement does not apply) shall
be followed:
[a] The party desiring arbitration shall immediately
serve or deliver to the other party a written demand for
arbitration.
[b] Within ten (10) days of such demand, the moving
party shall prepare for the Board of Arbitration a complete
statement of its case and deliver a copy thereof to the op-
posite party.
[c] Within ten (10) days after opposite party receives the
statement of the moving party, the opposite shall prepare
for the Board its answer, and deliver a copy thereof to the
moving party.
[d] The Board of Arbitration shall consist of four (4)
members and a Chairman. Two (2) members shall repre-
sent the Columbus Union and two (2) members shall repre-
sent the Publisher, and unless the Columbus Union or the
Publisher names different persons as its arbitrators in the
written demand for arbitration or the other names different
persons as its arbitrators within five (5) days after a copy of
the written demand is delivered to the other party, then
said four members shall be the same four persons who are
then in office on the Joint Standing Committee.
[e] Within a period of not to exceed five (5) days after
the four (4) members of the Board of Arbitration becomes
definite, the Columbus Union and the Publisher shall fur-
COLUMBUS PRINTING PRESSMEN UNION NO. 252
nish in writing each to the other names of five (5) persons
and the two (2), in one week thereafter, shall attempt to
agree that one of such ten (10 ) persons shall serve as an
impartial Chairman of the Board of Arbitration. If the par-
ties are unable to agree upon an impartial Chairman, then
either party may make written request that the Secretary-
Manager of the Southern Newspaper Publishers Associa-
tion (SNPA) and the President of the International Print-
ing Pressmen and Assistants' Union of North America,
acting jointly designate such impartial Chairman. The per-
son so designated shall then serve as impartial Chairman.
ARTICLE SEVENTEEN
285
Finality of Arbitration
Section 88. It is agreed that the procedures herein provid-
ed for settling disputes by arbitration shall be used to the
exclusion of any other means available to the parties who
execute this agreement, it being understood that all arbitra-
tion decisions rendered under the terms of this Contract
are final and binding on both parties. Any rights or reme-
dies otherwise available to the parties to this Contract are
hereby expressly waived. The parties agree to equally di-
vide the cost of arbitration of any disputes set forth in
Article Fifteen, Section 82, and Article One, Section 2.