J. S. Alberici Construction Co.

National Labor Relations Board - Board Decisions

Sep 19, 1977

232 N.L.R.B. 71 (N.L.R.B. 1977)

J. S. ALBERICI CONSTRUCTION CO.
J. S. Alberici Construction Co., Inc. and Shopmen's
Local Union No. 518 of the International Associa-
tion of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO. Case 14-CA-9916
September 19, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On June 15, 1977, Administrative Law Judge
Robert A. Giannasi issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed a brief in opposition to the General
Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
brief, and has decided to affirm the rulings, findings,
and conclusions' of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
* The Administrative Law Judge found that even if the parties had
agreed-which he considered doubtful-to a contract merging the senionty
of certain employees represented by different unions, its refusal to arbitrate
a seniority dispute was not unlawful. In our judgment a preponderance of
the evidence does not establish that Respondent was bound to such an
agreement. We, therefore, do not reach or pass on any duty Respondent
might have were there an agreement.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge: This
case was heard before me on March 21, 1977. in St. Louis,
Missouri, upon a complaint which issued on February 16,
1977. The complaint was based on a charge which was filed
on January 11, 1977. The complaint alleges that Respon-
dent violated Section 8(aX5) and (1) of the National Labor
Relations Act, as amended, by "repudiating" a memoran-
dum of understanding between the Union and Respondent
"as being an integral part of' the collective-bargaining
agreement of the parties "by refusing to process grievances
to arbitration thereunder." Respondent denies that by its
conduct it violated Section 8(a)(5) and (1) of the Act.
Respondent and the General Counsel filed proposed
232 NLRB No. 14
findings of fact and conclusions of law and supporting
briefs.
Upon the entire record in this case, I hereby make the
following:
FINDINGS OF FACT
I. JURISDICrIONAL FINDINGS
Respondent is a Missouri corporation engaged in the
building and construction industry as a general contractor.
It maintains its principal office and place of business in the
city of St. Louis, State of Missouri, at which location it also
has a fabrication shop. During the year ending December
31, 1976, Respondent in the course and conduct of its
business operations purchased and caused to be transport-
ed and delivered at its Missouri place of business
construction materials and other goods and materials
valued in excess of $100,000, of which goods and materials
valued in excess of $50,000 were transported and delivered
to its places of business in Missouri directly from points
located outside of the State of Missouri. Respondent is now
and has been at all times material hereto an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party (hereafter the Union) is and has
been at all material times a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
About half of Respondent's employees at its fabrication
shop were represented by the Union and the rest by
Ironworkers Local 396. The latter received outside con-
struction wages and fringe benefits. Respondent and the
Union had entered into a collective-bargaining agreement
in 1972 which expired on May I, 1975.
After discussions and exchanges of correspondence,
Respondent, the Union, and Local 396, entered into a
memorandum of understanding on January 24, 1975, in
Washington, D.C. The memorandum was attested to by a
representative of the International Association of Iron-
workers who participated in the discussions leading up to
the agreement. The basic purpose of the memorandum was
to equalize the wage and benefit rates of employees
represented by the two local unions. The memorandum
contained no expiration date.
On or about April 18, 1975, Respondent and the Union
commenced negotiations for a new collective-bargaining
agreement. Respondent made the following proposal which
was accepted by the Union:
This agreement is subject to Memorandum of Under-
standing dated January 24, 1975, (copy to be attached).
The collective-bargaining agreement which was subse-
quently finalized by the parties contained no reference to
the memorandum.
Union Business Representative Melvin St. Clair testified
that there was not any extensive discussion of the
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
memorandum during negotiations, but that the Respon-
dent's president, Raymond Pieper, said, "Since we have
agreed on the Memorandum of Understanding it should be
incorporated in the current agreement." Later, in response
to my question, St. Clair testified that at no time did
management say that the memorandum was part of the
contract.
In December 1975, the Union tendered copies of the
contract to Respondent for signature.
On January 2, 1976, the Union filed grievances alleging
that the Respondent had violated paragraph 6 of the
memorandum concerning the recall of laid-off shop
employees. Paragraph 6 reads as follows:
In the event of a layoff, present shop employees of the
Company, whether they be members of Iron Workers
Local Union No. 396 or members of Shopmen's Local
Union No. 518, shall be laid off based upon their length
of service with the Company, subject to their ability to
perform the work in question in accordance with
generally recognized shop practices of the Company,
and will be recalled in reverse order (list attached).
On January 14, 1976, Respondent answered the grievances
by stating (1) there was "no violation of agreement" and (2)
"Grievance was not timely filed."
Thereafter, in January and February 1976, several
meetings were held between Respondent and the Union. In
one of the meetings, a representative of the International
Union was present. Business Representative Melvin St.
Clair represented the Union. At these meetings, the Union
sought to resolve the grievances and the Respondent took
the position that the memorandum was not part of the
collective-bargaining agreement and thus not subject to its
grievance-arbitration clause.
On April 26, 1976, in a letter to St. Clair, Respondent
returned copies of the agreement signed subject to certain
conditions: (I) requiring that the Union confirm the
Respondent's understanding of the memorandum; and (2)
detaching the memorandum from the back of the agree-
ment where it had been placed by the Union. The letter
also stated the Respondent's position that "The Memoran-
dum is not a part of the Collective-Bargaining Agreement."
On May 18, 1976, the Union filed a charge with the
Board against Respondent alleging, inter alia, that Respon-
dent had violated Section 8(a)(5) and (1) of the Act by
"repudiating a signed memorandum of agreement between
the parties," and "by attaching conditions to the signing of
the collective-bargaining agreement." The General Counsel
issued a complaint in Case 14-CA-9347 alleging that
Respondent conditioned execution and implementation of
the collective-bargaining agreement on the Union's agree-
ment to its interpretation of the memorandum.
On August 5, 1976, Respondent transmitted to the Union
a signed signature page of the agreement with the notation
"letter dated August 26, 1976, withdrawn without prejudice
as set out in the letter dated August 5, 1976"; also
transmitted were copies of the memorandum of under-
standing which had been signed on January 24, 1975. The
I Both parties limited the August settlement agreement. For example, the
Union, on August 6, wrote Respondent that it was not waiving its right to
arbitrate disputes involving the layoff and recall rights of employees. This
covering letter withdrew the letter of April 26, 1976,
"without prejudice to [Respondent's] right to maintain its
position on the interpretation of these documents and
litigation which might occur in the future." On August 6,
the Union withdrew its charge and sent Respondent a
letter stating that it was not waiving its right to arbitrate
disputes involving the layoff and recall rights of employees.
Also on August 6, 1976, the Acting Regional Director for
Region 14 approved the Union's request for withdrawal of
its charge and the complaint in Case 14-CA-9347 was
dismissed.
On November 23, 1976, St. Clair telephoned John
Bartnett, Respondent's director of labor relations, to ask
about an arbitrator to hear the grievances that had been
filed in January 1976. St. Clair testified that the "executive
board," presumably of the Union, had "gone on record
that these grievances would be arbitrated." Bartnett said
that he had not had time to review the matter and asked St.
Clair to call back. On December 17, 1976, St. Clair again
called Bartnett and the latter stated, "I don't think the
grievance is arbitrable" and added the reason was "the
same reason that we stated before."
Discussion and Analysis
The complaint alleges that, since December 17, 1976,
Respondent refused to bargain with the Union "in that
since said date Respondent has been and is repudiating the
Memorandum of Understanding ... as being an integral
part of the agreement . . . by refusing to process griev-
ances to arbitration thereunder." The General Counsel
takes the position that, on August 5, when the Respondent
removed the conditions it had placed on the execution of
the bargaining agreement in exchange for the Union's
withdrawal of its charge filed May 18, 1976, "the parties at
that point in time consummated a labor contract and the
Memorandum of Understanding was part of that con-
tract." General Counsel further asserts that at this time
Respondent agreed that the memorandum "was part of the
contract and subject to the grievance-arbitration provi-
sions" thereto and that, by refusing to process the
grievances under the memorandum to arbitration on
December 17, 1976, as alleged in the complaint, Respon-
dent disavowed and repudiated this agreement.
I find and conclude that, even assuming that Respondent
and the Union did, on August 5, enter into such
agreement-which which is hotly contested and doubt-
ful '- the Respondent did not violate the Act.
The essence of the violation alleged in the complaint is
that Respondent refused to arbitrate grievances under the
memorandum of understanding. It is well settled that the
Board does not police agreements and a refusal to arbitrate
does not constitute a violation of Section 8(a)(5) and (1) of
the Act. Hortex Manufacturing Company, Inc., 147 NLRB
1151, 1159 (1964), enfd. sub nom. Amalgamated Clothing
Workers of America, AFL-CIO v. N.L.R.B., 343 F.2d 329
(C.A.D.C., 1965); National Dairy Products Corporation, 126
NLRB 434, 439 (1960).
tends to negate any argument that the parties had indeed agreed to apply
the arbitration provisions to the memorandum. If they had, there would be
no need for the Union to preserve its right to arbitrate.
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J. S. ALBERICI CONSTRUCTION CO.
The General Counsel seeks to escape the impact of these
authorities by arguing that "Respondent's refusal to
arbitrate in and of itself is not the violative conduct; the
refusal to arbitrate is only evidence of its repudiation of the
agreement to incorporate the Memorandum into the
contract." I am not persuaded. The evidence simply shows
a refusal to arbitrate grievances. And this was all that was
alleged in the complaint. If this is a repudiation, it is a
repudiation only of an alleged agreement to arbitrate
entered into on August 5, which is not a violation under
Board law.2
Respondent did not repudiate the application of either
the contract or the memorandum or any specific term of
either agreement. The only objectionable action Respon-
dent has taken since November 17, 1976, is the refusal to
arbitrate grievances under the memorandum-a position it
has taken since January 1976. It has not taken this position
in bad faith nor for antiunion reasons, but rather on the
I The cases cited by the General Counsel in support of his repudiation
theory do not involve the situation where, as here, the only alleged
repudiation is the employer's good-faith refusal to arbitrate grievances.
3 In view of my disposition of the case, I do not pass on Respondent's
motion to dismiss on the ground that the violation herein alleged was
consummated in January 1976 and thus the complaint was inescapably
based on events which took place more than 6 months before the charge was
filed under Sec. 10(b) of the Act. See Local Lodge No. 1424, International
basis of its belief that disputes under the memorandum are
not arbitrable. Moreover, there is a disagreement as to
whether the parties agreed to arbitrate such disputes. In
these circumstances, it is clear that the General Counsel
has not proven that Respondent refused to bargain in good
faith in violation of the Act. 3
CONCLUSIONS OF LAW
The Respondent has not violated the Act.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 4
The complaint is dismissed in its entirety.
Association of Machiniss, A FL-CIO [Bryan Manufacturing Co / v. N. L. R. B.,
362 U.S. 411, 416 (1960).
4 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.
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