Iron Workers (Ornamental Iron)

National Labor Relations Board - Board Decisions

Sep 26, 1985

276 N.L.R.B. 748 (N.L.R.B. 1985)

748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Bridge , Structural and
Ornamental Iron Workers (AFL-CIO) and
Shopmen 's Local No. 587 of the ; International
Association of Bridge , Structural and Ornamen-
tal Iron Workers (AFL-CIO) and The Orna-
-mental Iron Works Company . Case' 8-CB-5213
26 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 12 April 1985 Administrative Law Judge
Lowell Goerlich issued the' attached decision. The
General Counsel filed exceptions and a supporting
brief, the Charging Party filed exceptions, and the
Respondent filed limited cross-exceptions; a sup-
porting brief; and an answering brief..
The National Labor Relations Board has delegat-
ed its authority in this proceeding - to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended Order.
ORDER
The complaint is dismissed , provided that
Jurisdiction over this proceeding is retained for
the limited purpose of entertaining an appropriate
and timely motion for further consideration upon a
proper showing that either (a) the dispute has not,
with reasonable promptness after the issuance of
this decision, been resolved by amicable settlement
in the grievance procedure or submitted promptly
to arbitration, or (b) the grievance or arbitration
procedures have not been fair and regular or have
reached a result which is repugnant to the Act.
I We agree with the judge that it is appropriate to defer this case to
the parties' grievance and arbitration procedure In so doing , we note
that the dispute herein involves the adequacy of the Company' s 28 Janu-
ary 1985 letter to the Union as well as the effect of the Company's 30
January 1984 notice of termination
Rufus L. Warr, Esq., of Cleveland, Ohio, for the General
Counsel
Paul D. Supton, Esq., of San Francisco, California, for
the Respondents.
H. Brian Rector, of Akron, Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge. A
charge was filed on May 7, 1984, against International
Association of Bridge, Structural and Ornamental Iron
Workers by The Ornamental Iron Works Company (Or-
namental, the Company, or the Employer). The charge
276 NLRB No. 76
was served by certified mail on that same day. The first
amended charge was filed on November 27, 1984, against
International Association of'Bridge , Structural and Orna-
mental Iron Workers and Shopmen's Local Union,No.
587, by Ornamental. The first amended charge was
served by certified mail concurrent , with the complaint
and notice of hearing. The complaint and notice of hear-
ing herein dated November 29, 1984, was issued against
International Association of Bridge, Structural and Orna-
mental Iron Workers (AFL-CIO) (the Respondent Inter-
national) and Shopmen 's Local Union No.-- 587 of the
International Association of Bridge, Structural and Orna-
mental Iron Workers (AFL-CIO) (the Respondent
Local). The complaint alleges that since-about March 9,
1984, the Respondent Local has failed and refused' to
bargain collectively with Ornamental in Violation of Sec-
tion 8(b)(3) of the National Labor Relations Act (the
Act).
The Respondents filed timely answers denying that
they had committed any of the alleged unfair labor prac-
tices and pleading certain affirmative defenses , including
a defense that this matter be deferred to arbitration.
The case came on to be heard on February 8, 1985, at
Akron, Ohio. Each party was afforded a full opportunity
to be heard, to call , examine , and cross-examine wit-
nesses, to argue orally on the record, to submit proposed
findings of fact and conclusions, and to file briefs. All
briefs have been carefully considered.
On the entire record in this case and from my observa-
tion of the witnesses and their demeanor , I make the fol-
lowing
FINDINGS OF FACT, CONCLUSIONS, AND REASONS
THEREFOR
1. BUSINESS OF THE EMPLOYING ENTERPRISE
At all times material herein , the Employer , a corpora-
tion with an office and place of business in Norton, Ohio,
(the Employer's facility), has been engaged in the manu -
facture, nonretail sale, and distribution of structural steel
and architectural metal products.
Annually, the Employer , in the course and conduct of
its business operations described above , sells and ships '
from its Norton, Ohio facility products , goods , and mate-
rials valued in excess of $50 ,000 directly to points outside
the State of Ohio.
The Employer is now , and has been at all times mate-
rial herein , an employer engaged in commerce within the
meaning of Section 2 (2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The Respondent International is now, and has been at
all times material herein, a labor organization within the,
meaning of Section 2(5) of the Act.
The Respondent,. Local is now, and has been at all.
times material herein , a ' labor organization within the
meaning of, Section 2(5) of the Act.
IRON WORKERS (ORNAMENTAL IRON) 749
III. THE UNFAIR LABOR PRACTICES
The Question of Deferral to Arbitration
First: The Respondent Local and Ornamental entered
into a labor agreement which was executed on April 1,
1981. The duration and termination clause provided that
the agreement was to remain in full force and effect until
midnight of March 31, 1984, and that "unless written
notice be given by either party to the other at least sixty
(60) days and not more than ninety (90) days prior to
such date of a desire for change therein or to terminate
the same, it shall continue in effect for an additional year
thereafter."
On November-3, 1983, the General-Executive Board
of the Respondent -International placed the Respondent
Local under "supervision" and by letter appointed John
Norman Clark, a general organizer; as administrator. On
November 6 or 7, 1983, Clark showed William D.
Boesche, president of Ornamental, his letter of appoint-
ment and another communication dated November , 3;
1983, addressed to the officers and members of the Re-
spondent Local from the general executive board. The
details of the administratorship were disclosed in the
communication and, among other things, this paragraph
included:
All business and affairs of Local Union No. 587
shall be administered by John N. Clark who has
been hereby designated as Administrator of Local
Union No. 587. He shall be assisted by such mem-
bers as may hereafter be appointed by the General
President of this International Association pursuant
to Article XXI, Section 14 of the International Con-
stitution, and he shall also be authorized to employ
such employees as would normally, be required for
the proper functioning of a local union business
office. .
The administratorship, commenced on November. 7, 1983.
Clark advised Boesche that "formal communications
involving the union were to be sent to him." Thereafter,
Boesche "dealt" with' Clark and Donald Lightell, special
representative. By letter dated November 17,1983, Clark
informed Boesche that Jim' Swope was appointed the
chief shop steward, Ronald Buck the No. 2 steward, and
Tim Breitenstine the No., 3 steward;
According to' Clark; Chief Steward Swope` was the
highest ranking steward in the plant' and "would be the
most authoritative person in the plant." Clark did not
work in the plant. His office and home address was 851
Rogers Road, Villa Hills, Kentucky 41017. When Clark
was asked how many days a week he was in his office,
he replied, "Boy, not very many. Sometimes I'm not
there for a long time , like 12 days. And then some days,
I'm-you know, there's no schedule..I don't have to be
in my home or my residence' or my office on any par-
ticular day. I go where I have to go, come back when I
get through." Boesche testified. that he'talked "most"
with union stewards about union business. '
On January 30, 1984, within,the 90- to 60-day period
referred to in the duration and termination clause of the
contract, Ornamental delivered a notice to terminate the
contract to Chief Steward Swope, who, acknowledged its
receipt on the document. In,.the notice, among other
things ; it was stated, "Should the union desire to meet
with the company representative for the purpose of ne-
gotiation a new contract we would-be glad to do so at a
time agreeable to both parties "- According to Swope, he
dropped the notice in the mail to Lightell i the next day
According to Lightell, he learned of the notice from
Swope on February 2, 1984, and received a copy of the
notice -on February-3, 1984. Lightell "conveyed the con-
tents of the letter" to' Clark, who was in Cleveland,
Ohio, on February 3, 1984. Boesche testified that "Mr.
Swope was a vehicle by which the. notice was transmit-'
ted."
By letter dated February 4, 1984, Clark replied to Or-
namental 's notice to terminate the contract. Among
other things, he advised the Company that the agreement
was not terminated in accordance with its terms. Howev-
er, he wrote that a committee was available to meet with
the Company to discuss any proposals "that-you desire
to make in accordance with Section 10(E), Section 25 or
26 of the current agreement.1-2
The Company and the Respondent Local met in nego-
tiations on March 9, 1984. Lightell was the union spokes-
man. -Stewards Swope, Buck, and Miller were also
present . Lightell informed the Company that the Re-
spondent Local was there under article 26, the interim
agreement only, and that the Company's letter of termi-
nation was "invalid." The Company took the position
that it was there to negotiate a new, agreement The
Company presented a written proposal. Lightell respond-
ed that the Company "would not get a counter-offer to
that proposal," and that the Respondent Local was there
for "only one reason, and that was economics."
By letter dated March 16, 1984, Lightell informed the
Company that the Respondent Local would meet with it
on March 28, 1984, to discuss economics under section
26. Lightell also wrote, "[P]lease be informed that we
have extended the labor agreement for one more year."
By letter dated March 21,_1984, the Company agreed
to meet 'with the Respondent Local, but added, "Howev-
i Swope testified , "I always sent all my material to Mr Clark or
Mr Lightell "
2 Sec. 26, of the contract provides
SECTION 26
INTERIM AMENDMENT
This agreement may be amended at any time by an agreement in
writing, executed by the parties hereto and approved as to form by
the International The party desiring such an amendment shall submit
a proposal thereof in writing to the other party, which shall be enti-
tled "Request For Interim Amendment" and specify that it is given
under this Section 26 , and upon receipt thereof the other party shall
promptly, consider such proposal and, if requested to do so, discuss it
with the other party proposing the amendment The giving of such
written Request For Interim Amendment shall in no way affect or
result in a termination or expiration of this agreement or prevent or
,obstruct any continuation or renewal thereof
It is expressly understood that if any disagreement should arise be-
tweenthe parties as .to any "Request For Interim Amendment" sub-
mitted by-either party under this Section 26, such disagreement shall
not be reviewable under the grievance procedure set forth in Section
19, nor arbitrable under the arbitration provisions and procedure set
forth'in Section 20 of this Agreement .
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er we are not in agreement with you regarding the ter-
mination of our present contract and intend to continue
negotiations which we started with you and- the union
committee on Friday, March 9,1984."
The parties again met' in negotiations on March 28,
1984. Clark - reaffirmed the Respondent • Local's position
that the negotiators were- working under article 26 only
"and hell would , freeze over before ... , the company
would receive a counter-offer on [its] proposal." Clark
offered a $1-an-hour wage concession.
.A third negotiation meeting was held between the par-
ties on May, 1, 1984. Lightell was. the Respondent
Local's spokesman. The Respondent Local reaffirmed its
position on economics only. The $1 offer was made
again and the ,Respondent Local reiterated that it would
not submit a counteroffer.
In September 1984 the parties had an "off-the-cuff
general meeting" in the lunchroom of the shop. Econom-
ics were discussed. The parties "got into a little bit of
contract language ." Lightell volunteered to get the Com-
pany information on some better hospitalization rates. .
On January 28, -1985, the Company addressed the fol-
lowing letter to the Respondent Local:
I -am sure you are • aware that the. Ornamental
Iron Works Co. has unfair labor practices against
your organization and Local #587 asserting the ex-
piration of the collective bargaining agreement'as-of
March 31, 1984. •
I would like-to take this opportunity to again're-
quest negotiations on a new collective bargaining
agreement. Further refusal to bargain on. your, part
may result in unilateral changes in wages, hours and
working conditions by the employer.
The employer has not made any changes in the
above matters to date in the hope, that your position
on the expiration of the contract has changed. Your
continued refusal to bargain with the employer over
a renewal contract for the past year can no longer
be tolerated.
You are hereby notified that any extensions you
may have considered in effect concerning your pre-
vious contract are no longer a basis for your refusal
to-bargain in good faith. We request a meeting date
for negotiations as soon as possible.3 -
Thereafter, the parties again met in ' negotiations on
February 6, 1985, several days before the hearing in this
matter. The Respondent Local again made it clear that it
was negotiating only under article 26, but did expand the
discussion beyond economics. Clark insisted that the
Company was "still . .. operating under the old con-
tract."
In respect to the authority of stewards the contract
provides in section 19(D): '
(D) The Shop Stewards provided for and, men-
tioned in this Section 19 shall have and possess
power and authority to act for and bind the Union
8 On being asked by. Clark whether the letter was to serve as a termi-
nation of the contract , Harvey Brian Rector , the Company 's chief negoti-
ator , answered , "[Y]es.7
only in connection with those functions, rights, obli-
gations and matters provided for in this agreement.
They shall, not have, or be deemed to have,, any
other authority to act for or bind the Union. Specif-
ically, no Shop Steward has any authority, real or
apparerit,•to act for or in behalf of the Union, in any
manner contrary to or in violation of any applicable
section or provision of the Labor-Management Re-
lations Act,- 1947;, in the matter of hiring or firing
employees, or -disciplining; demoting -or punishing
employees, or discriminating against employees; or
altering, suspending, or terminating all -or any 'part
of this agreement, or calling or causing or inducing
strikes, work stoppages or picketing, or establishing
boycotts. Nor shall, the fact that any such Shop
Steward has , on one or more. occasions , assumed
authority to act for the Union in -connection with
matters for which he is not hereby authorized to act
in behalf- of the Union, be deemed evidence of any
real or apparent authorization by the Union of such
activities by the Shop Steward, unless' the Company
shall have given. the Union written notice of such
activity or activities of.-the Shop Steward and the
Union, 'within a reasonable- time thereafter, has
failed to post notices on the Bulletin Boards located
on the Company's premises directing such Shop
Steward to cease and desist from such activities and
proclaiming that he has acted beyond the scope of
the authority granted him by the Union.
- Second: Section 8(d) of the act provides: "[T]o bargain
collectively 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 employment,` or the negotiation of an agreement or any
question arising thereunder, and the execution of a wnt-
ten contract incorporating any agreement reached if re-
quested by either party" (emphasis added). The unfair
labor practice here charged involves whether the Re-
spondent Local refused to bargain in respect-to the nego-
tiation of an agreement. By letter. dated February 4,
1984, as above noted, the Respondent Local insisted that
the contract had not been terminated and that it would
only negotiate in conformity with section 26 of the
agreement. Thereafter, the Respondent Local refused-
and continues to refuse to negotiate for an agreement.
This refusal may not consititute a violation of Section
8(d) of the Act if the Respondent Local's conduct comes'
within the proviso of Section 8(d), i.e., "the duties so im-
posed shall not be "construed as requiring either party to
discuss or agree to any modification of the terms and
conditions contained in a'contract for a fixed period, if
such modification is to become effective before such
terms and conditions can be reopened under the provi-
sions of the contract." Hence, the first issue to be_decid-
ed'is whether the contract, which otherwise would have
extended itself for another year, was'validly terminated
by the Employer 's notice to terminate . The resolution of
this issue will require an interpretation of the terms and
meaning of the contract between the Respondent Local
and the Employer. The prime question in respect thereto
IRON WORKERS (ORNAMENTAL IRON)
is whether service of the notice to terminate on Steward
Swope was valid in light of the contractual limitation
placed on a steward's authority by section 19(D).4 Thus,
the dispute here is essentially one over the terms and
meaning of the contract between the Respondent Local
and the Employer.5
In its third affirmative defense the Respondent Local
pleads, "This case should be deferred to abrbitration
[sic]." Because the matter before me is a proper subject
for the grievance-arbitration procedure, I find that it will
best effectuate the purposes and policies of the Act to
defer this case to the arbitral forum. United Food Services,
273 NLRB 1611 (1985); Collyer Insulated Wire, 192
NLRB 837 (1971); United Technologies Corp., 268 NLRB
557 (1984); Postal Service, 273 NLRB 1746 (1985).6
4 The Regional Director, in refusing to issue a complaint, relied heavi-
ly on the following excerpt from sec 19 (D), which he quoted, "Para-
graph D of the Section [19] specifically limits the steward's functions and
authorities to those described in the contract and further states 'no Shop
Steward has any authority , real or apparent , to act for or in behalf of the
Union . in the matter of . . terminating all or any part of this agree-
ment
5 The General Counsel in her brief has recognized that the case pri-
marily involves contract interpretation by posing the following questions
as principal issues:
(A) Whether the Chief Union Steward, under the circumstances of
the instant case, was an agent of Respondent Shopmen 's Local
Union No 587 for the purpose of receiving the Employer 's notice of
intent to terminate the collective bargaining agreement.
(D) Notwithstanding any prior issues concerning termination of
the collective bargaining agreement , whether the Employer's written
request to bargain concerning a new collective bargaining agreement
in January 1985 was sufficient notice to the Union.
(E) Whether said request was timely sent by the Employer.
6 As in Postal Service, supra, "The contract and its meaning in present
circumstances lie at the heart of this dispute."
CONCLUSIONS OF LAW
751
1. Ornamental is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act, and it will effectuate the purposes of the Act for ju-
risdiction to be exercised herein,
2. The Unions are labor organizations within the
meaning of Section 2(5) of the Act.
3. The issues raised in the complaint should be de-
ferred to the grievance -arbitration provisions of the col-
lective-bargaining agreement between Ornamental and
the Respondent Local.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed7
ORDER
The complaint is dismissed , provided that
Jurisdiction over this proceeding is retained for the
limited purpose of entertaining an appropriate and timely
motion for further consideration upon a proper showing
that either (a) the dispute has not, with reasonable
promptness after the issuance of this decision , been re-
solved by amicable settlement in the grievance procedure
or submitted promptly to arbitration, or (b) the grievance
or arbitration procedures have not been fair and regular
or have reached a result which is repugnant to the Act.8
7 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall , as provided in Sec . 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
8 The General Counsel's motion to reopen the record is denied.