Mechanical Contractors Association of Newburgh

National Labor Relations Board - Board Decisions

Mar 1, 1973

202 N.L.R.B. 1 (N.L.R.B. 1973)

MECHANICAL CONTRACTORS ASSN. OF NEWBURGH 1
Mechanical Contractors Association of Newburgh and
Local Union No . 269, United Association of Jour-
neymen and Apprentices of the Plumbing and Pipe-
fitting Industry of Newburgh, New York. Case
2-CA-12413
March 1, 1973
DECISION AND ORDER
On June 20, 1972, Administrative Law Judge'
William ' Feldesman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief. The General Counsel
and Charging Party filed briefs in support of the
Administrative Law Judge's Decision. Briefs were
submitted in opposition to the Administrative Law
Judge's Decision by the Mechanical Contractors
Association of America, Inc., and the National
Electrical Contractors Association as amici curiae.
Oral argument was heard on September 11, 1972.
The National Labor Relations Board has consid-
ered the record and the attached Decision in light of
the exceptions, briefs, and oral argument and finds in
accord with the Respondent's exceptions that Re -
spondent did not violate Section 8(a)(5) and (1) of the
Act as alleged and that the complaint should
therefore be dismissed. The Board has accordingly
decided to affirm only those rulings, findings, and
conclusions of the Administrative Law Judge as are
consistent herewith.
The basic facts are not in dispute. They are as
follows:
As evidenced by a series of collective-bargaining
agreements covering more-than-10-year period, Re-
spondent has recognized the Union as the exclusive
representative of the journeymen and apprentice
plumbers and pipefitters employed by Respondent's
members. Since 1962 the Union and Respondent
have included the following provision2 in their
contracts:
On or before the expiration date of this agreement
should the parties be unable to settle through
collective, bargaining, any issue over wages or
hours or working conditions shall be referred to
the Industrial Relations Council. Pending deci-
sion by the Council, workmen shall continue to
work under terms and conditions of this agree-
ment which shall remain in full force and effect.
Any decision rendered by the Council shall be
retroactive from July 15, on.
In the most recent agreement between the parties,
executed in 1968, the IRC clause appeared as
paragraph 7 of article I. That contract bore an
expiration date of June 30, 1971, and negotiations for
a contract to replace it commenced on February 16,
1971.3 The complaint's allegation of a refusal to
bargain relates to the dispute over the inclusion or
exclusion of the IRC clause in the new contract.
During the early stages of bargaining, the Union
proposed as one modification the elimination of
clauses 4 through 9 of article I. Respondent count-
ered with a proposal that article I be retained without
change. Preliminarily, the parties agreed to focus
their attention on cost items. They, therefore, gave
little, if any, of their time to the proposal dealing with
article I until a very late stage in the negotiations.
On June 23, Respondent's representatives stated
their intention to place the then unresolved differ-
ences about new contract terms before the Industrial
Relations Council.
On June 25, all the bargaining unit employees went
on strike.
On June 28, Respondent's representatives notified
the Industrial Relations Council that the employers
were bringing the unresolved bargaining disputes to
it under the IRC clause in the contract.
On July 14, Respondent's members initiated
litigation to enjoin the strike and compel arbitration.
On August 3, 1971, the United States District Court
for the Southern District of New York issued an
injunction against the strike and ordered arbitration.
On July 20, the Union filed the instant charge
alleging that Respondent violated Section 8(a)(5) of
the Act.
Pursuant to the Union's request of July 29, the
parties met to discuss article I on July 30. For the
first time, the Union narrowed the scope of its
original proposal on article I, and confined its
demand to the deletion of the IRC clause. Respon-
dent refused to accede to this demand.
On August 18, the Industrial Relations Council
held a hearing with respect to the outstanding
bargaining disputes. The Union and Respondent
participated and filed briefs. The Union there
argued, inter alia, that the Industrial Relations
Council had no authority to compel the inclusion of
the IRC clause against the Union's will. The Union
did state, however, that it would accept and abide by
the Industrial Relations Council's determination of
the also outstanding bargaining dispute over the
wage issue.
On August 19, the Industrial Relations Council
issued a decision without accompanying opinion
which established the wages to be paid under the new
contract and directed the inclusion of the IRC clause
without change.
The Administrative Law Judge found upon the
I The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 This clause shall be referred to herein as the IRC clause.
3 All dates herein are for the year 1971 unless otherwise stated.
202 NLRB No. I
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above facts that Respondent engaged in an unlawful
refusal to bargain within the meaning of Section
8(a)(5) of the Act by conditioning its agreement to
any new contract on the inclusion of the IRC clause.
His decision is grounded on the theory that: (a) The
inclusion of the IRC clause in a new contract would
establish the Industrial Relations Council as the
arbiter of disputes over the terms of future contracts;
and (b) the proposal for the arbitration of such
bargaining disputes is not a mandatory subject of
bargaining.
Our disagreement with the Administrative Law
Judge goes primarily to his conclusion that the IRC
clause endows the Industrial Relations Council with
the kind of decisional authority traditionally associ-
ated with the arbitration process.
It is true that read literally, the IRC clause appears
to endow the Industrial Relations Council with the
characteristics of a classic arbitration panel. On
analysis, however, we find that its composition and
its function in this dispute are quite unlike that of
arbitration. Thus, while the procedures for presenting
a dispute are similar to those used in arbitration, the
decision making process is not. There is no neutral or
impartial umpire, but rather a panel composed solely
of interested parties in equal number.4 Panel mem-
bers representing the union are selected by the
International, and panel members representing the
employer are selected by the employer's parent
organization. Any decision of the panel must be
unanimous. As noted above, the decisions of the
panel are made after the parties to the bargaining
relationship have presented their positions on the
issues blocking the consummation of a final contract.
In these circumstances, we cannot but infer that a
unanimous decision defining mutually acceptable
terms for agreement can only be reached by a
process much more closely paralleling collective
bargaining, rather than by a process of judicial or
arbitral decisionmaking. As a practical matter, it
seems apparent that representatives of the union and
representatives of the employers would reach a
unanimous result only through a process of negotia-
tion and compromise, particularly since the econom-
4 Cf. Local Union No. 103, International Association of Bridge, Structural
and Ornamental Iron Workers , AFL-CIO (Associated General Contractors of
America, Evansville Chapter, Inc.), 190 NLRB No. 145, enfd . as modified 465
F.2d 327 (C.A. 7, 1972), on remand 200 NLRB No. 120.
5 Constitution of the United Association of Journeymen and Appren-
tices the Plumbing and Pipefitting Industry of the United States and
Canada . Revised and amended , August 8-12, 1966. At oral argument,
General Counsel and Respondent stipulated that the union constitution be
made part of the record in this case . In any event, we note that this
constitution is a matter of public record , of which we may take
administrative notice.
6 Id, sec . 65, which reads:
In localities where a lockout or strike is threatened by a
combination of employers , the General Executive Board shall
is interests of the parties they represent are clearly
involved and would be expected to be disparate.
Realistically, therefore, the presence of the IRC
clause in a contract authorizes, as we view it, an
extension of the collective-bargaining process by a
different set of negotiators, once the individuals who
have begun the negotiations are unable to compro-
mise their differences. If the panel is unable to reach
a unanimous decision, then, as we understand the
arrangement, the use of the usual economic weapons
is not restricted.
The presence of the Industrial Relations Council in
this bargaining relationship is, in effect, an extension
of the bargaining rights of the Union. This Union is
affiliated with the International represented on the
Council. The constitutions in effect at all times here
material bestows upon the general executive board of
the International like extensions of local bargaining
in other respects, such as its conferral of authority
upon the International to deal with employers for the
settlement of disputes which threaten to give rise to a
strike or lockouts In addition, it grants the Interna-
tional the authority to approve or disapprove
strikes,7 to revoke local charters,8 to suspend locals,9
and to place locals in trusteeship.10 It is therefore
apparent that the International's presence in this
bargaining relationship is wholly consistent with the
normal and constitutional interrelationships of the
local and International bodies, and no element of
coercion is involved.I"
We find nothing offensive to national labor policies
in the fact that, under the affiliation contract
between the Union and its International, and the
terms of the bargaining contract between Respon-
dent and the Union, the International is vested with
some authority to affect, through its participation at
this level of the bargaining, the ultimate terms of
contract accord. Nor is it offensive to any national
labor policy that the International has authority tQ
limit the local union's right to strike pending
conclusion of the extended bargaining at the council
level. In John E. Parks, Jr. v. International Brother-
hood of Electrical Workers, a case involving some-
what similar International involvement and tempo-
be empowered to investigate and arbitrate with the employers
for the removal of the cause that prevents an amicable
adjustment.
We note that in the succeeding constitution this authority was
transferred from the general executive board to the general president.
Section 46. (i), Constitution of the United Association of Journeymen
and Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada . Revised and amended, August 2-5, 1971.
r Id., sec. 202.
8 Id., sec. 99.
9 Id., sec. 96.
10 Id., sec. 98.
11 Cf. N. L. R. B. v. Wooster Division of Borg- Warner Corporation, 356 U.S.
342 (1958).
MECHANICAL CONTRACTORS ASSN. OF NEWBURGH
rary limitations on the use of economic force, the
court came to a like conclusion, stating:
Even if a union cannot be compelled to
relinquish economic weapons perpetually, there is
nothing in the law to suggest that it may not
voluntarily forebear from the use of force as long
as it chooses to do so. At most, the International
can be said to have attempted to compel one,of its
component bodies to do this. It is not for the
courts to say that a superior union body cannot
require its subordinate to look to high level
bargaining rather than to use economic force.
Actually, adoption of the more stringent
Council clause would not surrender the strike
weapon irretrievably; it would merely fortify the
provision in the Constitution vesting control over
this weapon in the International. It would remain
within the power of the International to restore
the strike weapon to a local.12
Viewed in the light of the foregoing findings, no
liability under Section 8(a)(5) of the Act can be
imputed to Respondent because, over the Union's
objections, it referred the differences between it and
the Union to the Industrial Relations Council for
resolution in accord with the contractually estab-
lished procedures. We also note that there is no
evidence to suggest that Respondent would not have
executed a contract which did not include the IRC
clause, had the next bargaining level-i.e., the
Industrial Relations Council-unanimously agreed
to resolve the bargaining dispute in that manner. We
are unwilling to hold, therefore, that, by referring the
dispute to the Industrial Relations Council, Respon-
dent was conditioning any agreement with the Union
on an arbitrary insistence upon an inclusion of the
IRC clause. Instead, it only referred that issue, in
accordance with the agreement between the parties,
to the next level of bargaining.
Unlike the Administrative Law Judge, we do not
find that impasse was a prerequisite to the submis-
sion of a dispute to the Industrial Relations Council.
The term impasse implies that collective bargaining
has failed to produce agreement. It cannot be said
that a failureto agree at what we view as the primary
stage of a bilevel bargaining procedure amounts to
impasse. Until the collective-bargaining process has
been exhausted, no impasse can occur. Here the
Industrial Relations Council was so integrated with
the bargaining process that impasse could not occur
until that body was unable to reach agreement. At
that point it would be necessary to decide whether
the collective-bargaining process was thwarted by
12 314 F.2d 886, 910 (C.A. 4, 1963).
13 See , e. g., International Brotherhood of Electrical Workers, AFL-CIO
and International Brotherhood of Electrical Workers, Local 5, AFL-CIO
(Franklin Electric Construction Company), 126 NLRB 143; United Mine
3
one party's insistence on a nonmandatory subject as
a condition of agreement. Since that did not occur
here, we find it is unnecessary to decide whether the
IRC clause embodies a nonmandatory subject of
bargaining.
For all the above reasons, we conclude that the
Industrial Relations Council was, by agreement of
the parties, an integral part of the collective-bargain-
ing process. Since a procedure by which an Interna-
tional union participates in a final level of bargaining
does not contravene any provision of our Act, it
follows that Respondent's persistence in adhering to
such a procedure did not violate its duty to bargain
in good faith.
Accordingly, we shall dismiss the complaint in its
entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBER FANNING, dissenting:
As my colleagues view this case, the presence of the
IRC clause in the parties' collective-bargaining
agreement authorized the 'negotiation of a new
collective-bargaining agreement by the Industrial
Relations Council once the parties who began the
negotiations were unable to compromise their differ-
ences . This conclusion is, in part, premised on the
view that "presence of the Industrial Relations
Council in this bargaining relationship is, in effect,
an extension of the bargaining rights of the Union,"
which is affiliated with the International which
appoints the "labor" representatives to the Council
whose participation in the bargaining is wholly
consistent with the normal and constitutional interre-
lationships of the Union and the International. They,
therefore, conclude that Respondent's insistence that
despite the Union's announced unwillingness to
negotiate over the continuation of the IRC clause in
the agreement being negotiated, the issue of its
continuance be submitted to the Industrial Relations
Council for final and binding decision did not violate
Section 8(a)(5) of the Act.
This view of the case can be persuasive only if one
ignores two long-established principles of Federal
labor policy as developed in interpretations of the
Act this Board administers. First, my colleagues
ignore the fact that the Union is a labor organization,
separate and apart from its International.13 It is the
Workers of America and District 30, United Mine Workers of America, and
Local No. 9606, United Mine Workers of America (Blue Diamond Coal
Company), 143 NLRB 795.
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only labor organization which is the statutory
representative of the employees 14 involved in this
proceeding. As the Administrative Law Judge ob-
served, "[i]f, therefore, contrary to my finding (that
the Council performs an arbitration function), the
Council were composed of two separate groups
engaged in an extension of collective bargaining, it
would be cogently argued that the Respondent, by
insisting upon the continuation of the IRC clause,
bargained to the point of impasse as a condition of
agreement on substituting the International for the
Union as the employees' bargaining agent in the final
stages of collective bargaining. And that would seem
to fall within a specific interdiction of the Supreme
Court in Borg-Warner. There, the Court held that,
where an international is the certified bargaining
agent, an employer's proposal to supplant the
International with a Local as the party to collective
agreement and hence to evade the employer's duty to
bargain with the International, is a permissive matter
for collective bargaining which cannot be pushed to
impasse." I see no difference in principle between
substituting the International for the Local Union as
the party to the collective-bargaining agreement and
substituting the International for the Local Union as
the negotiator of the agreement. Respondent's
insistence upon such substitution over the objections
of the Union seems to me clearly to violate Section
8(a)(5).
This leads to the second point, namely, whether the
presence of the IRC clause in the parties' 1968
agreement constitutes an agreement to submit to the
Industrial Relations Council not only those unsettled
issues relating to wages, hours, or working condi-
tions, but also the issue of the continuation of the
IRC clause itself. Clearly that clause constitutes a
waiver by the Union (and Respondent as well) of the
right to use its arsenal of economic weapons in the
event the parties were unable to settle differences as
to "wages or hours or working conditions." It is even
possible that an arbitrator looking to the agreement
as a whole, its negotiating history, and the entire
history of the parties' collective-bargaining relation-
ship, might conclude that the intent of the IRC
clause was to give the Council the right also to
determine whether the IRC clause itself should be
14 N. L. R. B. v. Wooster Division of Borg- Warner Corporation, 356 U.S.
342.
15 My colleagues agree with the Administrative Law Judge that neither
the principles of Collyer Insulated Wire, A Gulf and Western Systems Co., 192
NLRB No. 150, nor those of Spielberg Manufacturing Company, 112 NLRB
1080, require or warrant deferral or acceptance of the apparent decision of
the Council that it had been impowered to make a final and binding
decision that the IRC clause be incorporated into the parties' 1971
collective-bargaining agreement over the objections of the Union, thus
providing for the continuation of the Council's role in the negotiation of the
next succeeding contract . Perhaps my colleagues' affirmation of the
included in the next agreement. But if such an
interpretation is possible,15 it is not clearly and
unmistakably expressed; indeed the very specificity
of the language of the IRC clause as to the matters to
be submitted to the Council weighs strongly against
such an interpretation. Accordingly, inasmuch as the
parties' collective-bargaining agreement does not
clearly and unmistakably waive the Union's right to
determine for itself whether or not to agree to the
inclusion of the IRC clause in the 1971 agreement,
the Union cannot be said to have waived the right.16
This is oo whether the Council performs as an
arbitration panel, as I believe is the case, or as a
negotiating body as my colleagues find is the case. In
either event, its authority to act must be found in the
parties' agreement with each other setting forth the
matters they are willing to submit to the Council.
My colleagues implicitly concede that the 1968
collective-bargaining agreement alone does not bind
the Union to submit this issue to the Council, for
they find that the "International's presence in this
bargaining relationship is wholly consistent with the
normal and constitutional interrelationships of the
local and International bodies, and no element of
coercion is involved." And so it well may be. But this
is an internal matter affecting the relations and
relationships of the unions involved. The Interna-
tional may be able, if it chooses to do so, to compel
the Union, its local, to agree or even insist upon
inclusion of the IRC clause in any agreement
negotiated by it as a condition of the Union's
maintaining good-standing membership in the Inter-
national. It is, however, the International which must
determine whether its local union is or is not
violating its constitutional obligations. It may deter-
mine that the Union has not violated those obliga-
tions. Even if it determines otherwise, it may be
unwilling for internal policy reasons or for other
more pragmatic reasons to enforce those obligations.
If it chooses to act, I take it the Parks case cited by
my colleagues is authoritative judicial precedent for
so acting. That decision, however, cannot be
stretched so far as to give Respondent a right under
Section 8(a)(5) to compel the Union to appoint the
Council (or is it only the representatives on the
Council appointed by the International) as its
Administrative Law Judge' s Decision in this respect flows from their view of
the Council as performing a negotiating rather than an arbitration function.
Of course if that is so, then the parties ' collective -bargaining agreement
which alone is the source of the Council's authority to act , though it
contains a grievance procedure to handle not only employee grievances but
also disputes as to the interpretation of the terms of the agreement , does not
provide for arbitration as the final step in settling such disputes, for the final
step in that process is the submission of the grievance to the Council itself
for what I presume my colleagues view as the negotiation of a settlement.
16 Timken Roller Bearing Co. v. N.LR.B., 325 F.2d 746 (C.A. 6); C& C
Plywood Corporation, 148 NLRB 414 , affd . 385 U.S. 421.
MECHANICAL CONTRACTORS ASSN. OF NEWBURGH 5
bargaining representatives as to matters it has not
agreed to submit to the Council.17
For the foregoing reasons, I cannot join my
colleagues' decision dismissing the complaint.
I have indicated that I view the Council's role as
one of arbitration of contract terms rather than an
extension of the negotiating process. I do so for the
reasons expressed by the Administrative Law Judge.
Also for the reasons expressed by him, I believe the
question of agreeing to such process is a nonmanda-
tory rather than a mandatory subject of collective
bargaining, and that Respondent violated Section
8(a)(5) in insisting upon continuing to negotiate
concerning that matter and on submitting the
question to the Council for final and binding
decision after the union had clearly and repeatedly
made known its unwillingness to negotiate on the
subject. I would affirm his decision in its entirety.
17 It is important to note in this connection that it is the Council and not
the International which is, under my colleagues ' view, negotiating on behalf
of the Union. The Council is a body established by agreement between the
International and employer representatives in the industry; it is not part of
the International nor is it affiliated with the Union or its International and
the fact that the International appoints the "labor" representatives to the
Council cannot make it a constituent part of either the Union or the
International . Obviously, it was established as an expert body for the
settlement of disputes of the sort the Respondent and the Union submitted
to it in the hope and expectation of avoiding resort to economic warfare.
Nevertheless its authority to act as to any matter must be found in the
agreement of the parties submitting the matter for settlement . As indicated,
the parties' collective-bargaining agreement provides for the submission of
unresolved issues relating to wages, hours , and working conditions ; it does
not encompass disputes as to the continuation of the IRC clause itself. Nor
has the International acting pursuant to any superior authority it may have
with respect to the Union's performance if its collective-bargaining
functions entered into any agreement with Respondent respecting this
matter . I therefore see little relevance to the issues of this case of the
constitutional and intraunion relationships of the Union and its Internation-
al.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM FELDESMAN, Trial Examiner: This case, initiat-
ed by the filing of a charge on July 20, 1971, by Local
Union No. 269, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of
Newburgh, New York, herein called the Union, was tried
before me on February 23, 1972, in Newburgh, New York,
upon a complaint issued on January 14, 1972, by the
General Counsel against Mechanical Contractor's Associa-
tion of Newburgh, herein called the Respondent. The
Respondent filed an answer on January 21, 1972. The
complaint alleges that, since on or about July 30, 1971, the
Respondent, by insisting, "as a condition of any new
collective bargaining agreement, to the point of impasse,"
that a provision in its last contract with the Union,
requiring referral to the "Industrial Relations Council" for
resolution of any issue over wages or hours or working
conditions the contracting parties are unable to settle
through collective bargaining, "be retained and continued
in any new collective bargaining agreement," engaged in
unfair labor practices violative of Section 8(a)(5) and (1) of
the National Labor Relations Act. In its answer the
Respondent denies the commission of any unfair labor
practices.
In essence, the General Counsel contends that the
"Industrial Relations Council" or "IRC" provision in past
agreements between the Respondent and the Union
compels arbitration of any unsettled "economic" or
"interest" issues arising from their negotiations looking
toward a new contract, in other words arbitration,' absent
accord, of what new contract terms between them shall be;
that, unlike grievance arbitration, this is a nonmandatory
or permissive subject of collective bargaining; that the
Respondent in negotiating a new agreement with the
Union in 1971 insisted to the point of impasse on
continuing and including the IRC provision in that
agreement; and that the Respondent consequently violated
Section 8(a)(5) and (1) of the Act. But the Respondent,
while conceding the IRC provision calls for arbitration, in
the event of disagreement, of new contract terms, counters
that this is collective-bargaining subject matter of a
mandatory nature; that, although it could have therefore
insisted to the point of impasse on retaining the provision,
it did not in fact do so in its 1971 bargaining negotiations
with the Union for a new contract; and that in conse-
quence it did not contravene the law. These are the basic
issues presented in this case. In addition, the Respondent
contends that the Board should defer to an arbitration
award issued by the Industrial Relations Council.
Upon the entire record, after seeing and hearing the
witnesses and observing their demeanor on the stand, and
after due consideration of the helpful briefs filed by the
General Counsel, the Union, the Respondent, and Me-
chanical Contractors Association of America, Inc., herein
called the Intervenor amicus curiae,' I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
I find, as the Respondent admits for the purposes of this
proceeding in accordance with allegations of the com-
plaint, that the Respondent is an association, with its
1 After its motion of April 12, 1972, unopposed by any of the parties,
permitted by my order of May 8, 1972, to intervene in this case as amicus
curiae and to file a brief with me.
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
principal office and place of business at Newburgh, New
York, and that it consists of various employer-members
and exists for the purpose, in whole or in part, of
bargaining collectively with the Union on behalf of such
members. I also find, as the complaint alleges and the
Respondent admits, that the employer-members of the
Respondent are Favino Construction Ltd., A. C. Smith,
Inc., Progressive Plumbing Co., R. Herman Chesser & Son,
Fox Plumbing & Heating Co., Inc., and Joseph Fichera, all
engaged in the business of providing contracting and
related services in the building and construction industry;
and that during the past year, a period generally represent-
ative of their annual operations, these employer-members
"in the course and conduct of their businesses, purchased
and caused to be transported and delivered to their places
of business, goods and materials valued in excess of
$50,000, of which goods and materials valued in excess of
$50,000 were transported and delivered to their places of
business in interstate commerce directly from states of the
United States other than the state in which they are
located." Upon the foregoing, I additionally find, as the
Respondent further admits in accordance with allegations
of the complaint, that the Respondent and its employer-
members are and at all times material have been employers
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find, as the complaint alleges and the Respondent
admits, that the Union is, and at all times material has
been, a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
For a considerable number of years the Union has been
recognized as the collective-bargaining representative of
the journeymen and apprentice plumbers and pipefitters
employed by the Respondent's members, the bargaining
relationship having been evidenced by a series of collective
agreements covering such employees.2 Before 1962 bar-
gaining negotiations were almost always accompanied by a
strike before an agreement was reached. In 1962, however,
the Union and the Respondent entered into a 3-year
contract containing what has come to be known as the
"Industrial Relations Council" or "IRC" provision. It
reads:
On or before the expiration date of this agreement
should the parties be unable to settle through collective
bargaining, any issue over wages or hours or working
conditions shall be referred to the Industrial Relations
Council. Pending decision by the Council, workmen
shall continue to work under terms and conditions of
this agreement which shall remain in full force and
effect. Any decision rendered by the Council shall be
retroactive from July 15, on.
The Industrial Relations Council was established about
1950 to serve the entire plumbing and pipefitting industry
2 1 find that , at all times material to this case, the Union has been the
statutory collective-bargaining representative of these employees, and the
Union and the Respondent, in regard to them , have had reciprocal rights
in resolving disputes arising from collective bargaining, or
involving the interpretation- of existing agreements, for
contracting parties who voluntarily seek the Council's aid
as an arbiter. It was formed by the joint action of the
Union's International, representing employees, and the
Intervenor amicus curiae and the National Association of
Plumbing, Heating, Cooling Contractors, herein called
National, both representing employers. The Council itself
consists of four members or officers of the Union's
International, representing employees, two members or
officers of the Intervenor amicus curiae representing
employers, and two members or officers of National, also
representing employers. The presidents of the three
sponsoring organizations are ex-officio but nonvoting
members of the Council. Four members of the Council,
two representing employees and two representing employ-
ers, constitute a quorum. And in the absence of a quorum
the representative present appoints an alternate member
from his own group to take the place of 'the absent
representative. All decisions of the Council are required to
be unanimous.
A booklet prepared by the Council includes, among
other things, the following statement:
MARCH 18, 1958
PREVENTION OF STRIKES AND WORK STOPPAGES
Gentlemen:
We are endeavoring to eliminate strikes and work
stoppages which always prove costly and detrimental,
not only to Employers, but to the Journeymen of the
United Association as well.
It is the express purpose and intent of the Industrial
Relations Council for the Plumbing and Pipefitting
industry to promote, improve and maintain sound
peaceful industrial relations between Employers and
Employees by creating this voluntary medium for
adjudication of local deadlocked disputes, thereby
discouraging strikes, lockouts, and other work stoppag-
es in the entire Plumbing and Pipe Fitting Industry.
The Council will consider disputes arising during
collective bargaining over wages , hours and working
conditions, after all local facilities for the settlement of
such disputes have been exhausted, and will also
consider disputes, other than jurisdictional disputes,
arising under local collective bargaining agreements if
they have been processed through the machinery
provided by the local agreement and have failed of
settlement . No dispute will be considered by the
Council while a strike, lockout or other work stoppage
exists.
Local collective bargaining committees are urged, in
the interest of promoting sound, peaceful industrial
relations, to include a provision in their local agree-
ments that all disputes over wages, hours and working
conditions, other than jurisdictional disputes, which
cannot be solved at the local level, be voluntarily
submitted to the Council for settlement . There is
and obligations to require and engage in collective bargaining as provided
in the Act.
MECHANICAL CONTRACTORS ASSN. OF NEWBURGH
nothing compulsory about using the Council proce-
dure, but its use is unanimously endorsed by the
United Association, the Mechanical Contractors Asso-
ciation of America and the National Association of
Plumbing Contractors.
Following is a sample paragraph of the type of
provision the Council will look with favor on in local
agreements:
If local facilities to resolve disputes over wages,
hours, or working conditions have failed of
settlement, both parties agree to submit the
dispute to the Industrial Relations Council for the
Plumbing and Pipe Fitting Industry, and further
agree that all terms and conditions of this
agreement shall continue in full force and effect,
pending final decision by the Industrial Relations
Council.
The Council earnestly urges every local collective
bargaining committee to incorporate the above, or
similar provision, in its local collective bargaining
agreement, and use the established procedures of the
Council in settling disputes, in the interest of promoting
and maintaining peaceful Employer-Employee rela-
tions throughout the Plumbing and Pipe Fitting
Industry.
SINCERELY,
GENE MURRAY, CHAIRMAN
We heartily endorse the above action of the Industrial
Relations Council for the Plumbing and Pipe Fitting
Industry and urge the incorporation of the above
provisions in all local collective bargaining agreements.
Peter T. Schoemann, General President, U.A.
Wilbur S. Hokom, President, NAPC
Joseph H. Spitzley, President, MCAA
In 1965 the Union and the Respondent executed another
3-year contract which continued the IRC provision. And a
third 3-year agreement, again including the IRC provision,
3 This quoted language appears in the fourth paragraph of article I of the
1968 contract The IRC provision is the seventh paragraph of that article So
that this provision can be read in context , article 1 , from the fourth
paragraph on, is here fully set forth
4 This agreement as amended shall be in full force and effect from
date of execution which is July 1, 1968, to June 30, 1971, and from year
to year thereafter unless notice of termination or modification is given
in writing by either party, 90 days prior to each anniversary date on or
after July 1, 1971.
5 There shall be no strikes, work stoppages or lockouts during the
term of this Agreement It is hereby agreed between the parties that all
disputes which cannot be settled by the individual employer involved
and the Union must be arbitrated and that the decision of the
arbitrators shall be final , binding and retroactive upon the parties, and
that there shall be no stoppage of work during such arbitration
6 In the event that a dispute is not settled , such disputes shall be
referred to the Joint Arbitration Committee consisting of three
representatives of the Union and three representatives of the Employ-
ers Said committee shall meet within twenty-four hours following
receipt of a notice in writing from either of the parties hereto The Joint
Committee reserves the tight to make the final decision in any dispute
and final interpretation of any of the articles of this Agreement subject
to the rules of arbitration set forth herein If said committee is unable
to reach a decision within three days following its first meeting, said
committee shall submit the dispute to the Industrial Relations Council
for the Plumbing and Pipe Fitting Industry, and further agree that all
terms and conditions of this agreement shall continue in full force and
7
despite discussion of its removal, was signed by them in
1968, to be effective "from July 1, 1968, to June 30, 1971,
and from year to year thereafter unless notice of termina-
tion or modification is given in wasting by either party, 90
days prior to each anniversary date on or after July 1,
1971."3
By letter dated February 2, 1971, the Union notified
each of the Respondent's members of its desire "to
negotiate a new agreement," pointing out that "our
Collective Bargaining Agreement expires this coming June
30th."4 On February 16, 1971, the first of 10 bargaining
meetings in Newburgh was held between the Union and
the Respondent, acting for its members through a
negotiating committee they selected. At such meetings the
chairman of the employer negotiating committee, Joseph
Favino, was solely empowered "to talk and to make any
binding commitments" on behalf of the Respondent and
its members, although all the members, each with an equal
voice, caucused among themselves and Favino's authority
was limited to proposing only that which the members
authorized him to propose. On the Union's side, Robert
Roth, its business agent from November 1961 to July 1971,
and thereafter its business manager, led the negotiations
and spoke for the Union.
At the third meeting , on March 23, 1971, the Union
delivered to the Respondent its initial bargaining propos-
als, which included a demand for the elimination from the
new agreement of paragraphs 4-9, inclusive, of article I of
the 1968 contract, and for the substitution only of a
modified paragraph 4. At this meeting the Respondent also
conveyed the employers' bargaining proposals. In meetings
held thereafter on March 31, April 6, May 17, and June 8
and 15, 1971, the parties apparently reached agreement on
some matters, but not on others, especially wages and the
Union's request for the deletion of clauses in article 1,
including paragraph 7, the IRC provision. During the
course of bargaining the Union submitted its demands in
three categories, which it designated as "wages," "contract
language," and "work rules." As Roth testified, the Union,
effect, pending final decision by the Industrial Relations Council
7 On or before the expiration date of this agreement should the
parties be unable to settle through collective bargaining , any issue over
wages or hours or working conditions shall be referred to the Industrial
Relations Council Pending decision by the Council, workmen shall
continue to work under terms and conditions of this agreement which
shall remain in full force and effect Any decision rendered by the
Council shall be retroactive from July 15, on
8 Any or all provisions of the no strike no lockout clause may be
altered, changed or removed at any time by mutual consent of both
parties concerned
9 It shall not be a violation of this agreement , or of the no strike,
work stoppages or lockouts clause if employees covered by this
Agreement refuse to cross a legally-established picket line
As can be seen from the foregoing the parties contemplated arbitration
of "grievance" disputes under paragraphs 5 and 6 of the 1968 agreement,
arbitration of "economic" or "interest" questions under paragraph 7, and
no strikes or lockouts in connection with either kind of arbitration under the
first sentence of paragraph 5 read together with such other paragraphs
Paragraph 7, the IRC provision , conforms rather closely to the clause
suggested by the industrial Relations Council in its statement of March 18,
1958, which is set out above in the text of this Decision
4 On May 26, 1971, and again on June 15, 1971, the Union sent to the
New York State Board of Mediation the notice to it required under Section
8(d) (3) of the Act, and on June 15, 1971, the Union sent to the Federal
Mediation and Conciliation Service the notice to it also required under that
section
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in response to the suggestion at one session of a member of
the employer group and in an attempt "to get negotiations
moving," agreed to focus on wages to determine if by a
satisfactory accord on that matter alone an overall
agreement could be reached, but specifically reserved its
right "to bring all the issues back in again. " 5 This
approach was not successful; the parties remained quite far
apart on wages. Indeed, at the eighth meeting, on June 15,
1971, the Union renewed all its demands and the
employers refused to accede to the Union's proposal for
the omission of the article 1 clauses.
On or about June 25, 2 days following the ninth meeting,
the employees represented by the Union engaged in a work
stoppage. On June 28, 1971, Favino wrote to the Industrial
Relations Council in Chicago, Illinois, informing the
Council that under paragraph 7 of article I of the 1968
contract, which would expire on June 30, the employers
were submitting "unsettled disputes to your board for
arbitration," and asking the Council to "send forms and
instructions for submission of items in dispute." Favino's
letter indicates that a copy was sent to the Union.
On July 14, 1971, the Respondent's members instituted
an action against the Union in the Supreme Court of the
State of New York, Orange County, a court of original
jurisdiction, alleging a breach of contract by the Union and
asking the court to compel arbitration and to enjoin the
work stoppage. The case was removed by the Union to the
United States District Court for the Southern District of
New York. There, District Judge Marvin Frankel issued a
temporary restraining order on July 20, 1971, which
continued until the court's determination of the employers'
application for a preliminary injunction. That application
was granted by District Judge Morris E. Lasker, who, in his
decision of August 3, 1971, relied on Section 301 of the
Labor Management Relations Act, 1947, and Boys Markets
v. Clerks Union, 398 U.S. 235 (1970). Under his order of
August 6, 1971, the Union and its members were found to
have breached the no-strike and arbitration provisions of
the 1968 contract; the Union and its agents and members
were enjoined from striking or refusing to work or
engaging in a work stoppage; and the parties were directed
to submit to arbitration any outstanding disputes between
them, including the meaning of the 1968 agreement and the
continuance "of the no strike clause," in accordance with
the provisions of that contract.
In the meantime, on July 29, the Union forwarded to the
Respondent a letter stating that it was "willing to reduce its
demand on Art. 1, and modify its position to accept a
clause in place of Art. 1, allowing for arbitration for
grievances arising during term of contract concerning
interpretation of the contract," and demanding a meeting
"on Fri. July 30, 71, 8 P.M. in the office of the Union." On
July 30, after a telephone conversation between Roth and
Favino on July 29, the 10th meeting between the parties
was held. At this meeting Roth handed Favino a document
S Favino testified that Roth and another official of the Union stated
between them on more than one occasion that if there were agreement on
"money items everything else would be withdrawn," but he did not
specifically dispute Roth's testimony concerning the Union's reservation of
right to renew all its proposals, a technique which is not at all unusual in
collective bargaining Accordingly, and because Roth impressed me as a
containing the Union 's latest request for "changes in
Article 1." It reads as follows:
Union requests changes in Article I
Fourth paragraph to read as follows:
This Agreement takes effect July 1, 1971, and expires
June 30, 1972 unless a change is desired by either party.
A notice of ninety days must be given before this
agreement can be re-negotiated.
Delete paragraphs seven and eight and insert the
following paragraph:
This section is not intended nor does it in anyway
(sic) limit the Union's rights to take economic recource
(sic) for failure by an employer to pay wages or fringe
benefits when due.
Roth explained at this meeting that the Union did not
object to the Council as an arbiter during the term of the
collective agreement,, but did oppose "using the council
over issues arising out of collective bargaining." As he also
testified, he "tried to point out to [Favino] that arbitrators
don't have the right to perpetuates themselves in a
collective bargaining agreement." After some discussion
Roth inquired if the Union's request as submitted would be
granted by the employers, and Favino answered in the
negative. Roth specifically asked whether the employers
would agree to a contract omitting the IRC provision.
Favino replied, as Roth testified, "I doubt it, not too
promising with the Court order and violation of the
agreement." Favino's testimony about this meeting is not
substantially different from Roth's. Favino testified that
Roth pressed for an answer to his demand for an
agreement eliminating the IRC provision, and that his,
Favino's, reply was "that it was difficult for me to envision
a contract at this particular time, at this moment in time,
while the Union was out on strike and while they were in
violation of our agreement." He further testified, and I
find, that he unsuccessfully attempted to move the
discussion to other matters on which there was still
disagreement, and that he announced that the IRC
provision could be removed from the contract the same
way it was inserted- "through the process of negotia-
tion." 7 In his testimony, Favino conceded, however, that
the employers desired to retain the IRC clause, and that he
did not propose anything the Union might give up in
return for the employers' agreement to delete it, disclaim-
ing that such a proposal was his responsibility. As he
further conceded, he made no such proposal after the work
stoppage terminated about August 10, 1971; rather he
urged before the Industrial Relations Council as an issue
for its resolution the retention of the IRC provision, the
Respondent taking the firm position that the provision
should be continued. Also, on August 10, 1971, James Fox,
the "principal" of one of the Respondent's members, stated
at the Union's hall, in a conversation with Virginia Roth,
generally accurate and dependable witness, I have credited Roth's
testimony _
6 Incorrectly transcribed as "propitiate" and amended to read as above
7 Roth testified that he did not "recall" that this was said, but did not
specifically deny it
MECHANICAL CONTRACTORS ASSN. OF NEWBURGH
secretary of the Union, and the wife of Robert Roth, that
"There would be no contract without" the IRC clause."
Fox was not a member of the Respondent's negotiating
committee, and his remark was not a statement of position
or admission binding upon the Respondent and its
members. But he was the "principal" of one of six
employers constituting the Respondent; Favino and the
negotiating committee received their authority from such
employers; and Fox attended the July 30 bargaining
meeting, the employers' caucus at that meeting, and other
employer caucuses. His observation, I therefore find, is
entitled to some weight as an opinion-an informed
opinion-of the attitude of the Respondent and its
members toward the omission of the IRC provision.
Certainly Fox's statement reflected his own negative view
on the elimination of the clause.
On or about August 18, 1971, an arbitration hearing was
conducted by the Industrial Relations Council in Rose-
mont , Illinois. In, its submission and brief before the Council
the Respondent plainly indicated that it desired, inter alia,
an award continuing the IRC provision. The Union's
submission and brief presented 21 items for the Council to
consi --r . Contending that its proposal to delete the IRC
provision was not arbitrable, however, the Union in its
brief pointed out that while it would fulfill its commitment
under the 1968 agreement, it did "not agree to arbitrate at
the end of the agreement succeeding this one;" that rules of
the Council and the agreement establishing the Council
provided that the Council could only hear controversies
voluntarily and by mutual agreement submitted to the
Council, but the Union did not agree the Council could
arbitrate the dispute over the retention of the IRC
provision and the Union could not accept a finding that
the provision "should continue into successor agreement;"
and that this dispute "could not be voluntary if an
arbitration board forces its way into a contract by
arbitrable award." The composite testimony of Favino and
Roth regarding what took place before the Council in
Rosemont reveals that the parties submitted their briefs
and gave oral testimony; that the Council asked them to
attempt to settle matters they could resolve themselves;
that they complied with this request and satisfactorily
adjusted all issues,9 except for wages and the IRC clause;
and that these two questions were all that the Council
ultimately kept for consideration and answered. On August
19, the Council rendered its unanimous decision on both
issues, determining as to the IRC provision that "The
Industrial Relations Council Clause shall be retained
without change." No opinion containing reasons accompa-
nied its award.
As noted before in the "Statement of the Case," the
General Counsel contends that the IRC provision requires
arbitration of unsettled "economic" or "interest" is-
sues-what the new contract terms shall be-and unlike
R This finding is based on Mrs. Roth's testimony. Fox went to the hall to
see Roth with whom he was friendly, in connection with their personal
relationship . Roth was not there, but Fox admitted that he spoke to Mrs.
Roth, that "probably" they "talked about the strike a little bit," that he
indicated to her that he would like his operations to resume, but that "to
[his ] knowledge" he did not make the statement attributed to him by her.
Fox attended the July 30 bargaining meeting, although he was not a
member of the Respondent 's negotiating committee , and he testified that in
9
"grievance" or "rights" arbitration is a nonmandatory
subject of collective bargaining ;' that the Respondent in
bargaining in 1971 about the Union's demand for omission
of the provision from their new collective-bargaining
contract insisted to the point of impasse upon its retention
as a condition of reaching agreement ; and that the
Respondent as a matter of law thereby violated Section
8(a)(5) and (I) of the Act. For the legal conclusion flowing
from his two major premises the General Counsel relies
upon the decision of the Supreme Court of the United
States in N.L.R.B. v. Wooster Division of Borg-Warner
Corp., 356 U.S. 342 (1958). In Borg-Warner the Supreme
Court divided legal subjects of collective bargaining into
two categories, mandatory and nonmandatory, and ruled
that even if negotiations are carried on properly as to
mandatory matters , balking at entering into any agreement
because it does not include a nonmandatory subject is an
unlawful refusal to bargain . It held that bargaining to an
impasse is permitted (indeed compelled) as to mandatory
matters, but not as to nonmandatory. The Respondent
argues on the other hand that the IRC provision , although
requiring arbitration of unadjusted "economic" or "inter-
est" disputes, is a mandatory subject of collective bargain-
ing; and that in any case it did not insist to the point of
impasse upon including the provision in the new collective-
bargaining contract . Whether arbitration, absent agree-
ment, of "economic" or "interest" disputes, or "quasi-
legislative" arbitration as it is also known , is a mandatory
matter for collective bargaining , presents an issue of first
impression. As I am persuaded that the Respondent did
insist to the point of impasse as a condition to any new
contract on continuing the IRC provision , I find it
necessary to dispose of this issue as it is raised in the
circumstances of this case.
But the Respondent raises yet another point that must be
dealt with at ,the threshold. The Respondent urges in its
brief that the Board, without further ado, "should defer to
arbitration in this case ." In support of its position it cites
the Board's decision in Collyer Insulated -Wire Co., 192
NLRB No. 150 (1971). But I do not understand from this
decision that the Board, without proceeding to the merits
of an unfair labor practice case , would in the exercise of its
discretion defer to an award which is said to be in
substance the sequela of an unfair labor practice . For if the
General Counsel is correct in his position, the August 19,
1971, award of the Industrial Relations Council regarding
the IRC clause is a byproduct of the Respondent's illegal
collective-bargaining stance in insisting to the point of
impasse as a condition to any agreement on retaining the
clause (and submitting the issue to the Council for
resolution). And under the standards for arbitral hearing
and determination formulated by the Board in Spielberg
Manufacturing Company, 112 NLRB 1080 (1955), and its
progeny, the Board would therefore disregard the award as
an employers ' caucus at that meeting the employers took the position that
they wanted to continue the IRC clause . In these circumstances , I believe it
likely that Fox made the remark ascribed to him by Mrs. Roth. For this
reason, and based on her favorable demeanor on the stand, I have credited
her testimony.
s Among other things, they apparently agreed on a 1-year term for their
new agreement.
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being at variance with or "repugnant" to the Act. In short,
in a case of this kind it is essential first to decide the merits
of the claimed unfair labor practice. If there is an unfair
labor practice, there will be no deferral; if there is no
unfair labor practice, deferral becomes academic. That
being so, Collyer is inapplicable. To the extent the
Respondent may also be arguing that the Board, has no
discretionary authority but is obliged as a matter of law to
accept the award as binding and to dismiss this unfair
labor practice case, I find such a contention to be totally
lacking in merit. Whether or not an unfair labor practice
has been committed is an issue for the Board to determine
pursuant to the exclusive jurisdiction conferred upon it by
the Congress under Section 10(a) of the Act. See Carey v.
Westinghouse Electric Corporation, 375 U.S. 261, 270-271
(1963). In the realm of the Board's exclusive jurisdiction,
any conflicting arbitration award must yield to the Board's
valid determination; in fact, "[t]he superior authority of
the Board may be invoked at any time." Ibid at 272.
As already indicated, I am convinced and find that in the
1971 bargaining negotiations the Respondent insisted to
the point of impasse as a condition to any new agreement
with the Union on continuing the IRC provision. On July
30, the Union took pains to single out and concentrate
upon the provision as a separate item for bargaining. It
affirmatively and unqualifiedly asked for the elimination
of the clause. The net effect of the Respondent's response
to this demand was a refusal to accede. More ritualistic
than real was Favino's comment that the omission of the
provision was subject to the process of negotiation, as he
did not support his statement with a concrete proposal for
a quid pro quo by the Union in exchange for the
Respondent's assent to the Union's demand. Fox's remark
that there would be no contract without the provision
appears to have accurately reflected the true attitude of all
the employers. Even after the end of the work stoppage the
Respondent did not recede from its position, but pressed
for the continuation of the clause in the proceedings before
the Industrial Relations Council, notwithstanding that the
Union vigorously resisted submission of the issue to the
Council. Furthermore, on or about August 18 the Respon-
dent and the Union at the Council's behest again
bargained and sought to resolve their differences. Despite
10 As the Supreme Court held in Borg-Warner
good faith does not license the employer to refuse to enter into
agreements on the ground that they do not include some proposal
which is not a mandatory subject of bargaining [S]uch conduct is,
in substance, a refusal to bargain about the subjects that are within the
scope of mandatory bargaining This does not mean that bargaining is
to be confined to the statutory subjects Each of the two controversial
[non-mandatory] clauses [in Borg-Warner) is lawful in itself Each
would be enforceable if agreed to by the unions But it does not follow
that, because the company may propose these clauses, it may lawfully
insist upon them as a condition to any agreement. 356 U S at 349
11 It is now established beyond any doubt that a waiver of rights under
the National Labor Relations Act will not be lightly inferred and will not be
found to exist unless it is clear and unmistakable . See, for example,
Cloverleaf Division of Adams Dairy Co, 147 NLRB 140 (1964), New York
Daily Mirror, 151 NLRB 834 (1965), and Intl Union, UAW v N L R B
[General Motors Corporation], 381 F.2d 265, 267 (C A D.C, 1967), Bert
denied 389 U S 857 Whatever else the IRC clause means, it does not
clearly and unmistakably indicate that the Union by agreeing to it in 1968
gave up the statutory right in 1971 to insist that its renewal for another
contract term be removed from the negotiating table in accordance with the
rules laid down in Borg-Warner case, assuming that it embraces a
the Union's demand for the elimination of the IRC clause,
however, the Respondent' s insistence upon its continuance
caused that matter (as well as wages) ultimately to be
considered by the Council, whose asserted function after
all was only to resolve impasse disputes. The entire course
of dealings between the parties, including their actions
before the Council, discloses, that they arrived at an
impasse over the retention of the IRC clause . Assuming, as
the General Counsel urges, that the clause envisages a
nonmandatory subject of collective bargaining, under the
controlling principles of the Borg-Warner case, supra, the
Respondent was obligated not to persist to impasse in
proposing its inclusion as a condition to any future
collective agreement,10 and the Union had the absolute
right to demand its discontinuance.[[ But in final analysis
the Respondent brushed aside the Union's demand and
was responsible for creating a deadlock over the IRC
provision. No contract was reached because of terminal
disagreement-the impasse-over wages and continuance
of the IRC clause. That the matter of wages was also
unresolved by the parties in no way affects the finding I
have made that the Respondent insisted to the point of
impasse as a condition of any new collective agreement
upon the retention of the IRC provision.12 "It [is] not
necessary for the Board to find that the company's
insistence on this proposal was the sole cause of the failure
to.reach agreement. If the proposal is not a mandatory
bargaining subject, insistence upon it was a per se violation
of the duty to bargain. . . . Any other rule would permit
insistence upon a non-mandatory item so long as there
were any dispute as to mandatory topics." Industrial Union
of Marine & Shipbuilding Workers v. N.L.R.B., 320 F.2d
615, 618 (C.A. 3, 1963), cert. denied 375 U.S. 984. To
identical effect: Philip Carey Mfg. Co. v. N.L. R.B., 331
F.2d 720, 728 (C.A. 6, 1964); and N.L.R.B. v. American
Compress Warehouse Division of Frost-Whited Company,
Inc., 350 F.2d 365, 369 (C.A. 5, 1965). To repeat, the
Respondent, I find, on July 30, 1971, and at all times
thereafter, specifically again on or about August.18, 1971,
insisted to the point of impasse, as a condition to any new
collective-bargaining agreement with the Union, that the
IRC provision be continued.
In view of the foregoing findings and conclusions, the
nonmandatory subject of collective bargaining On this assumption,
moreover, it would be dangerous to read the clause otherwise , for the facts
of this case demonstrate its potential as a never -ending waiver of Borg-
Warner rights, a result which should be avoided and which might well be
against public policy Labor Law requires its own "Rule against Perpetui-
ties," at least where waivers of statutory rights are concerned, and also in
other contexts (e.g., the Board 's contract-bar rule ), perhaps in appropriate
circumstances even under Section 301 of the Labor Management Relations
Act, 1947, despite principles relating thereto which generally favor a judicial
finding of arbitrability in doubtful cases and judicial noninterference with
arbitration awards once made Furthermore , it could be said that in the use
of the language "should the parties be unable to settle through collective
bargaining," the IRC provision affirmatively envisioned collective bargain-
ing under law-the National Labor Relations Act and all decisional
interpretations of that statute-before any issue would be referred to the
Council. This hardly means that the Union waived any Borg-Warner rights
that it might have
i2 Favino testified that in his opinion there was no impasse over the
continuance of the IRC provision, whereas Roth testified that in his opinion
there was For my finding, I have relied on more objective evidence than
these self-interested views that cancel each other
MECHANICAL CONTRACTORS ASSN . OF NEWBURGH 11
nature of arbitration of new contract terms fortified by a
ban on strikes-whether it is a mandatory or nonmandato-
ry subject of collective bargaining-becomes the remaining
and pivotal issue in this case. Preliminarily I find, as the
General Counsel, the Union and the Respondent agree,
that the IRC provision encompasses arbitration of new
contract terms, the function of the Council being that of an
arbitrator. In its brief the Intervenor amicus curiae states,
among other things, that "The Industrial Relations Council
is a natural adjunct to collective bargaining process since it
is made up of representatives appointed equally by the
employer and the employees through the union and the
panel members have at least an indirect stake in the
outcome, so that bargaining continues within the panel. "
(Emphasis supplied.) But the IRC clause, the Council's
booklet, referred to above, including the statement of
March 18, 1958, the behavior of the parties directly in
interest in the judicial proceedings and the proceedings
before the Council, and the conduct of the Council itself,
all demonstrate that the Council is intended to act and acts
as an independent, unitary, adjudicatory tribunal-in sum,
as an arbitrator that hears and decides-despite the fact
that it is bipartite, composed of "representatives" of labor
and management in equal number. There is no evidence
that it is meant to serve or serves as an extension of
collective bargaining, as such,- with arms-length dealing
between the labor "representatives," acting solely for the
employees, and the management "representatives," acting
solely for the employers, and with each group of "repre-
sentatives" charged as an agent with the duty to represent
its constituents fairly and single-mindedly and with the
obligation to avoid any conflict with that duty. To be sure,
a bipartite arbitration panel is a unique and probably
extremely knowledgeable and sensitive tribunal, but it
cannot be both an arbitrator and a projection, in practice,
of collective bargaining. It should be noted that the Union
is a labor organization separate and apart from its
International, from which employee "representatives" are
allocated to the Council, and that it is the Union alone
which is the statutory bargaining representative of the
employees involved in this proceeding. If, therefore,
contrary to my finding, the Council were composed of two
separate groups engaged in an extension of collective
bargaining, it could be cogently argued that the Respon-
dent, by insisting on the continuance of the IRC clause,
bargained to the point of impasse as a condition of any
agreement on substituting the International for the Union
as the employees', bargaining agent in the final stages of
collective bargaining. And that would seem to fall within a
13 N.L.R.B. v. Tex-Tan, Inc., 318 F.2d 472 (C.A. 5, 1963); Philip Carey
Mfg. Co., 140 NLRB 1103 (1963); Boeing Airplane Co., 80 NLRB 477 (1948).
14 Central Metallic Casket Co., 91 NLRB 572 (1950).
15 Cf. Local Union No. 103, International Association of Bridge, Structural,
and Ornamental Iron Workers, AFL-CIO (Associated General Contractors of
America, Evansville Chapter, Inc.), 190 NLRB No. 145 (1971), in which a
majority of the Board held that a demand for a contractual provision that
jurisdictional disputes be submitted for resolution to the "National Joint
Board for the Settlement of Jurisdictional Disputes," is a mandatory subject
of collective bargaining , but pointed out that "the function of any group
designated to resolve ... jurisdictional disputes is not to negotiate on behalf
of the parties before it but is more in the nature of an umpire or a
knowledgeable arbitration panel to consider only certain types of problems."
(Emphasis supplied.)
16 Compare the facts in the case referred to in In. 15, supra. There, unlike
specific interdiction of the Supreme Court in Borg-Warner.
There, the Court held that, where an International is the
certified bargaining agent , an employer's proposal to
supplant the International with a local as the party to the
collective agreement, and hence to evade the employer's
duty to bargain with the International, is a permissive
matter for collective bargaining which cannot be pushed to
impasse . Of course, it makes absolutely no difference that
here the substitution would be in reverse-the Internation-
al for a local entitled to status as statutory bargaining
representative. A somewhat more difficult question is
whether a proposal to substitute one union for another
which is the statutory bargaining agent, after an impasse
on "economic" or "interest" issues has been reached with
the latter, is no different in substance from a proposal to
substitute the former for the latter as the party to the
collective agreement.
Notwithstanding that an impasse may be arrived at in
collective bargaining, the role of the employees' statutory
agent continues. It has the right not to be ignored or
supplanted but with full status to hold economic pow-
er-the strike-in reserve, or even to use it. This may
break the impasse and bargaining may be renewed
between it and the employer. Or the impasse may be
relieved by changed circumstances unrelated to the threat
or use of a strike, and bargaining between it and the
employer thereafter resumed. Indeed, if an impasse is
reached, although marathon talks are not required, the
obligation to bargain by conference and discussion is not
concluded, it is merely halted temporarily.13 In this period
of suspension the employer may not act in such manner as
to impair the collective-bargaining process, or, in effect, to
withdraw recognition of the representative status of the
employees' bargaining agent.14 I am therefore of the view
that if the Council by its labor and management "repre-
sentatives" did engage in collective bargaining after
impasse on substantive issues between the Union and the
Respondent, the Respondent's demand for renewal of the
IRC clause would have been a nonmandatory matter for
bargaining.15 Whether it is substantially equivalent for an
employer to propose that after impasse on "economic"
issues an arbitrator assume complete control and decide
them (and the statutory bargaining agent forego the right
to strike), is the quintessential issue to be determined in
this case.16
In Borg-Warner, the Supreme Court turned to Section
8(d) of the National Labor Relations Act, and to Section
8(a)(5) of that Act, and remarked:
Read together these provisions establish the obligation
here , the panel was "to consider only certain types of problems," merely
"jurisdictional disputes," not what the substantive provisions of the
forthcoming collective agreement should be. In both function and scope of
activities of the arbitration panel, the situations are clearly distinguishable.
The Board majority observed in that case : "It seems to us that there are few
matters more properly the subject of collective bargaining than the method
of resolving [jurisdictional] disputes ." But since collective bargaining itself
is the approved method in this country for reaching or not reaching a
collective agreement, which is not compelled as a matter of public policy,
even arbitration as a substitute for a major phase of collective bargain-
ing-the interval after any impasse on "economic" issues and noninterfer-
ence with the freedom of the employees ' bargaining agent during that
period-can scarcely be said to be comprehended by the majority's
observation.
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the employer and the representative of its employees
to bargain in good faith with respect to `wages, hours,
and other terms and conditions of employment. . . .
[the language of Section 8(d)]. The duty is limited to
those subjects, and within that area neither party is
legally obligated to yield. . . . As to other matters,
however, each party is free to bargain or not to bargain,
and to agree or not to agree. [356 U.S. at 349.]
It thus broadly delineated the subjects of mandatory
bargaining, on the one hand, and the subjects of nonman-
datory or permissive bargaining, on the other. "In general
terms," the Supreme Court has further ruled, "the
limitation [of what are mandatory subjects for collective
bargaining] includes only issues that settle an aspect of the
relationship between the employer and employees." Chemi-
cal Workers v. Pittsburgh Glass, 404 U.S. 157, 178 (1971).
Grievance arbitration has long been held to be a
mandatory subject of collective bargaining.17 "Just as an
employer must bargain with the representative of his
employees on grievances so must he about a method of
resolving them. Arbitration is one way in which this may
be done." 18 Underlying this notion are a number of special
reasons, not the least of which is the general acceptance in
this country of the institution of grievance arbitration. The
Supreme Court has proclaimed:
Complete effectuation of the federal policy is achieved
when the agreement contains both an arbitration
provision for all unresolved grievances and an absolute
prohibition of strikes, the arbitration agreement being
the `quid pro quo' for the agreement not to strike. Textile
Workers v. Lincoln Mills, 353 U.S. 448, 455.
Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 578 In. 4
(1960). Under our system of industrial relations, labor and
management are each free to contract for the essential
terms of the hire. Negotiations, agreement, if reached, and
dealings under the agreement, complete the cycle of
collective bargaining. Grievance arbitration satisfies a need
and attaches with the execution of a collective-bargaining
contract, when reciprocal rights and obligations have been
established in the industrial community and stability of
labor relations has ostensibly been achieved. Major
differences having been adjusted for a stipulated period,
this is the interval for uninterrupted peace, manifested by
the collective agreement itself. Moreover, the agreement
serves as the charter for orderly industrial self-government
through which that peace may be assured. -[T ]he grievance
machinery under a collective bargaining agreement is at
the very heart of the system of industrial self-government.
Arbitration is the means of solving the unforeseeable by
molding a system of private law for all the problems which
may arise and to provide for their solution in a way which
will generally accord with the variant needs and desires of
the parties. The processing of disputes through the
grievance machinery is actually a vehicle by which
meaning and content are given to the collective bargaining
agreement." Steelworkers v. Warrior & Gulf Co., supra, 363
U.S. at 581. As the Court indicated, important to industrial
self-government is a method for resolving disagreements
arising between labor and management in the interpreta-
tion and application of their contract and in matters
affecting their relationships during its term. Indeed, the
procedures for such adjustment, including recourse to a
third person in the event the contracting parties fail in their
own efforts to reconcile their differences, are thought to be
central to the system, in fact at the core of collective
bargaining, in the contract stage. "Apart from matters that
the parties specifically exclude, all of the questions on
which the parties disagree must therefore come within the
scope of the grievance and arbitration provisions of the
collective agreement. The grievance procedure is, in other
words, a part of the continuous collective bargaining
process. It, rather than a strike, is the terminal point of
disagreement." Steelworkers v. Warrior & Gulf Co., supra,
363 U.S. at 581. In enacting Section 301 of the Labor
Management Relations Act, 1947, the Congress was not
only concerned with making collective agreements enforce-
able in the Courts, it "was also interested in promoting
collective bargaining that ended with agreements' not to
strike," and it "adopted a policy which placed sanctions
behind agreements to arbitrate grievance disputes. . .
Textile Workers v. Lincoln Mills, 353 U.S. 448, 453, 456
(1957).
Arbitration of new contract terms is not novel in this
country. Professor Jack Stieber, in a paper entitled
"Voluntary Arbitration of Contract Terms," which he
presented in Montreal on April 8, 1970, to the Annual
Meeting of the National Academy of Arbitrators,19 had
this to say (at 1):
Arbitration as we know it today-involving the use of
an impartial person or a board to render a final and
binding decision in labor disputes-dates from about
the turn of the 20th century. Before 1900 the term
arbitration was used to describe negotiations over
wages, hours and working conditions between employ-
ers and unions, with or without the assistance of a third
party. This terminological problem makes any assess-
ment of the extent of arbitration before 1900 quite
unreliable. Even after 1900 statistics and information
regarding third party arbitration are hard to come by
and often of dubious reliability. [Fn. omitted.]
We do know that in the early 20th century and up to
the 1930's arbitration of wages, hours and other
contract terms was more common than grievance
arbitration. One reason for this was simply that a
prerequisite for grievance arbitration is the existence of
a written agreement and a fairly mature collective
bargaining relationship between the parties. Such a
relationship did not exist in many industries until the
1930's. In others, where union recognition and collec-
tive bargaining have a longer history, the relationship
was often unstable, subject to interruption as employers
succeeded in breaking away from the union, and
lacking in the degree of initial acceptance necessary for
the arbitration of grievance disputes. There are, of
course, industries in which grievance arbitration goes
back to the early 1900's but these are exceptions. [Fn.
omitted.]
In its brief, the Respondent, citing Arbitration Proce-
17 U. S. Gypsum Company, 94 NLRB 112 (1951). 19 Contained in a Special Report of the Bureau of National Affairs, Inc.,
18 /bid at 131. attached to its Daily Labor Report of May 1, 1970.
MECHANICAL CONTRACTORS ASSN. OF NEWBURGH 13
dures, Bulletin No. 1425-6 (June 1966), Bureau of Labor
Statistics, U.S. Department of Labor, correctly states that
.,only about two percent of major collective agreements
provide for arbitration over the terms of new contracts. But
the Bureau's latest study indicates that approximately
75,700 workers are covered by contracts which provide for
such arbitration with approximately 17,000 of such
employees being in the construction industry." Chapter
VIII of the Bulletin, entitled "Arbitration of New Contract
Terms," opens, however, with the following paragraph (at
95):
One aspect of labor-management relations that has not
changed significantly during the postwar period is the
reluctance of unions and managements, either sepa-
rately or together, to entrust the determination of new
contract terms to arbitrators. Less than 2 percent of the
1,717 major agreements studied provided for the
arbitration of disputes over the terms of new contracts.
In 1949 and 1952, according to two earlier Bureau
studies [Fn. omitted], the proportion was approximate-
ly 2 percent. In the instance of disputes arising out of
the permissible wage or other economic issues during
the term of the contract, 4 percent of the 1,717
agreements provided for arbitration, as compared to 10
and 11 percent in 1949 and 1952, respectively.
Although these earlier figures are not strictly compara-
ble, the present study seems to demonstrate, if
anything, that the arbitration of contract terms was
even less popular in the early 1960's than a decade or
more earlier.
It is highly significant that in a section headed "Preva-
lence of Grievance Arbitration," the bulletin contains the
following contrasting statistical information (at 5):
Provision for arbitration of some or all grievance
disputes was incorporated in 1,609 (94 percent) of the
1,717 agreements analyzed, covering 96 percent of the
workers. . . . The proportion of agreements providing
for grievance arbitration reflects a steady increase in
prevalence. In 1944, 1949, and 1952 Bureau studies,
arbitration provisions were found in 73, 83, and 89
percent of the agreements, respectively [Fn. omitted].
From a number of respected quarters has come the
suggestion that voluntary arbitration of new contract terms
should be encouraged as an alternative to economic action
and as a viable method of adjusting labor disputes.20
Establishment of the Industrial Relations Council in the
plumbing industry is illustrative of the effort made to use
this approach (as well as to further grievance arbitration)
in the interest of eliminating industrial strife and providing
some kind of fair substitute for the right to take economic
action. In the public sector there is growing acceptance by
governmental authorities of arbitration of impasse disputes
in certain areas to fill the void that exists because the strike
is generally unavailable to civil servants as a legal
economic weapon. Furthermore, Professor Stieber men-
20 E.g ., Quasi-Legislative Arbitration Agreements, Note, 64 Columbia L.
Rev. 109 ( 1964); Cushman, Voluntary Arbitration of New Contract Terms-A
Forum in Search of a Dispute, 16 Labor Law Journal 765 (1965).
21 Boston Printing Pressmen 's Union v . Potter Press, 241 F.2d 787 (C.A. 1,
1957), cert. denied 355 U.S. 817; Austin Mailers Union No. 136 v.
Newspapers, Inc., 329 F.2d 312 (C.A. 5, 1964), cert . denied 377 U.S. 985.
tions in his paper (at 11) that the results of a study he
conducted demonstrate that:
Forty-two percent of the management representatives
and 64 percent of the union representatives [sent
questionnaires] report that they would be willing to
`consider' final and binding arbitration of contract
terms, either on an ad hoc basis when a strike deadline
approaches, or by including in their agreement a
provision to arbitrate unresolved issues , or both. Ad
hoc arbitration is much more popular than arbitration
by prior agreement with both groups, 37 union and 25
management representatives saying this is the only kind
of arbitration they would consider.
His study further reveals that in general this willingness is
made contingent upon the imposition of certain condi-
tions; and that both labor and management groups which
had had experience with arbitration of new contract terms
evince a strong inclination to try it in the future, but "the
preference for ad hoc arbitration is stronger than for
including provisions in agreements to arbitrate unresolved
contract issues" (pp. 11-12).
Interestingly enough, Professor Stieber concludes his
paper on the following note (at 19):
We do not expect and indeed would deplore the
widespread use of contract arbitration to resolve labor-
management disputes. Nor is it desirable that arbitra-
tion be invoked to avoid strikes in all cases where
negotiations have failed to produce a settlement.
Collective bargaining must continue to be the primary
method for reaching agreements between unions and
companies. However, voluntary contract arbitration has
proved itself as a useful and constructive method for
settling disputes in the past and there is reason to
believe that circumstances will prevail which will be
particularly adaptable to its use in the future.
[Emphasis supplied.]
For the purposes of this case, it will be assumed,
arguendo, that, notwithstanding decisions to the contrary,21
as the Respondent contends in its brief the better view and
weight of authority support the proposition that an
agreement for quasi-legislative arbitration is specifically
enforceable in the courts under Section 301 of the Labor
Management Relations Act, 1947.22 The Respondent also
properly notes that in Title II of that Act there is the
declaration:
Sec. 201. That it is the policy of the United States
that-
(b) the settlement of issues between employers
and employees through collective bargaining may
be advanced by making available full and
adequate governmental facilities for conciliation,
mediation, and voluntary arbitration to aid and
encourage employers and the representatives of
their employees to reach and maintain agree-
ments concerning rates of pay, hours, and
working conditions, and to make all reasonable
22 Winston-Salem Printing Pressmen v. Piedmont Publishing Co., 393 F.2d
221 (C.A. 4, 1968); A. Seltzer & Co. v. Livingston, 361 F.2d 218 (C.A. 2,
1966); Builders Association of Kansas City v. Greater Kansas City Laborers,
326 F.2d 867 (C.A. 8, 1964). cert . denied 377 U.S. 917; See M.K. & 0.
Transit Lines, Inc. v. Division No. 892, etc., 319 F.2d 488,490 (C.A. 10, 1963),
cert denied 375 U.S. 944. See also the articles mentioned in fn. 20, supra.
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
efforts to settle their differences by mutual
agreement reached through conferences and
collective bargaining or by such methods as may
be provided for in any applicable agreement for
the settlement of disputes.
But all of the foregoing, while evidencing the legitimacy,
availability, and in some instances the wisdom of voluntary
arbitration of new contract terms, and its binding effect
when the parties have consented to accept this dispute;
settling device, does not establish that it is or should be a
mandatory subject of collective bargaining. It is altogether
unlike grievance arbitration. "[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 mandatory bargaining." Fibreboard
Paper Products Corp. v. N.L.R.B., 379 U.S. 203, 211 (1964).
In sum, the industrial bargaining practice, generally, and in
the construction business, specifically, is to put quasi-
legislative arbitration to very little use, despite indications
of greater future receptivity by labor and management of
this mode of adjustment of labor disputes and suggestions
that it be encouraged and resorted to more frequently.
That the Respondent and the Union agreed to include
the IRC clause in their 1962 contract and continue it in
their agreements until 1971 does not make it a mandatory
subject of collective bargaining. Their own contract history
is insufficient by itself to convert a nonmandatory matter
for bargaining into a mandatory one. Chemical Workers v.
Pittsburgh Glass, 404 U.S. 157, 187-188 (1971). This is to
say nothing of the disturbing tendency a contrary concept
would have in this case, where one party at the appropriate
time for renegotiating a contractual provision refused to
consent to its continuation and sought to break away from
it. Combining with all the circumstances here present, that
tendency would be to shackle the nonconsenting party to
the provision forever. In his paper Professor Stieber further
reports (at 10):
An interesting complaint against arbitration provisions
[for new contract terms] is that once such clauses are
negotiated they are difficult to get rid of. One union
attorney comments that some arbitrators consider a
request to eliminate a provision as a reflection on their
competence. A recent decision shows that at least one
arbitrator does not share this view. Arbitrator Harry
Platt decided that a provision calling for final and
binding arbitration of any matters not settled in
collective bargaining should not be included in a new
contract between the parties. The three employers
involved wanted to continue the provision; the union
favored eliminating it. Platt concluded that'. . . while
a policy of terminal arbitration might be salutary and
promotive of industrial peace when adopted voluntari-
ly, it would not necessarily be either [sic] if imposed by
a third party against the will of either contracting party.
[Fn. omitted.] Notwithstanding the union attorney's
experience, the author believes that Platt's opinion
reflects the views of the overwhelming majority of
professional arbitrators.
23 A no-strike commitment is broadly stated to be a mandatory subject
of collective bargaining But the precedent commonly cited for this
proposition is a case in which the no-strike agreement proposed was for the
It suffices to say that the Council's action in the instant
case reveals a judgment opposed to Platt's and raises the
specter of a contractual stipulation binding a nonconsent-
ing party in perpetuity.
It can hardly be asserted, moreover, that, as the Supreme
Court said in regard to grievance arbitration, there is
"complete effectuation of the federal policy" when there is
agreement on arbitration of new contract terms and "an
absolute prohibition of strikes, the arbitration agreement
being the `quid pro quo' for the agreement not to strike."
On the contrary, although grievance arbitration is encour-
aged and accepted as a component of the grievance
machinery and as such becomes for the term of the
contract and during that interval of repose "a part of the
continuous collective bargaining process" in the interpreta-
tion and application of the agreement and in the
relationships between the parties, arbitration of what their
future contract should be joined with the barring of strikes
is no more than an outright substitute for collective
bargaining itself .23 That it is contemplated that arbitration
will not take hold until after impasse is of no consequence
whatever. For it has already been shown that collective
bargaining is not terminated at this juncture, it merely
reaches another level, in fact a major phase of the entire
process, during which it is essential to the statutory scheme
that both the process and the representative status of the
employees' bargaining agent remain inviolate. Significant-
ly, moreover, the strike ban here was meant to be effective
at all stages of bargaining, from the time of its inception,
both before and after impasse. (I deem it unnecessary to
undertake consideration of the General Counsel's argu-
ment, which may be sheer speculation, that quasi-legisla-
tive arbitration, not ad hoc, but, as here, assented to in
advance by collective agreement, precludes proper collec-
tive bargaining at the very outset of negotiations for a new
contract, as "the parties will likely take positions at the
bargaining table, not for the purpose of arriving at some
compromise agreement , but rather to buttress their
positions before the arbitrater.")
Stripped to fundamentals, what the Respondent pro-
posed in this case was that collective bargaining be
abandoned at a vital point, and that the Union totally yield
its statutory right to bargain as the representative of the
employees, committing itself not to strike at any time
starting with the initiation of bargaining negotiations for a
new contract, in favor of adjustment by a third party,
before whom the Union would be transformed from a
bargaining agent into an advocate. While this is one
method by which labor disputes can be settled-possibly
even a reasonable and desirable way-it cuts across the
grain of our national labor relations policy for the private
sector of our economy, so much so that either party, the
employees collectively by their bargaining representative,
or the employer, should have the unqualified right to insist
upon its elimination as an issue from their negotiations and
its removal as a stumbling block in their endeavors to
reach agreement. Each party should be afforded the
utmost liberty to decide of its own volition whether to
term of the contract and was not coupled with arbitration of "economic" or
"interest" issues That case is Shell Oil Co. 77 NLRB 1306 (1948)
MECHANICAL CONTRACTORS ASSN. OF NEWBURGH
eschew collective bargaining and its statutorily guaranteed
right to participate in that process, and to accept instead
quasi-legislative arbitration united with a ban on economic
action.
If there is any lingering doubt of what our national labor
relations policy is and how the Respondent's demand ran
counter to its objectives, the following elucidating language
of the Supreme Court in N.L.R.B. v. Insurance Agents'
International Union, 361 U.S. 477, 488-489 (1960), should
help to dissipate it:
It must be realized that collective bargaining under a
system where the Government does not attempt to
control the results of negotiations, cannot be equated
with an academic collective search for truth--or even
with what might be thought to be the ideal of one. The
parties-even granting the modification of views that
may come from a realization of economic interdepen-
dence-still proceed from contrary and to an extent
antagonistic viewpoints and concepts of self-interest.
The system has not reached the ideal of the philosophic
notion that perfect understanding among people would
lead to perfect agreement among them on values. The
presence of economic weapons in reserve , and their
actual exercise on occasion by the parties, is part and
parcel of the system that the Wagner and Taft-Hartley
Acts have recognized. Abstract logical analysis might
find inconsistency between the command of the statute
to negotiate toward an agreement in good faith and the
legitimacy of the use of economic weapons, frequently
having the most serious effect upon individual workers
and productive enterprises, to induce one party to come
to the terms desired by the other. But the truth of the
matter is that at the present statutory stage of our
national labor relations policy, the two factors-neces-
sity for good-faith bargaining between parties, and the
availability of economic pressure devices to each to
make the other party incline to agree on one's
terms-exist side by side.
None of this is to say or imply that a substitution of
quasi-legislative arbitration for collective bargaining or a
symbiosis of the two is impossible or undesirable. By their
consent labor and management can decide for themselves
to accomplish this end. But such consent must be sought
and not exacted, meaning only that the proponent of
arbitration is required to respect and accept the other side's
firm rejection and its consequent demand that collective
bargaining alone be pursued to arrive at new contract
terms.
I conclude and find that the Respondent, by demanding
through the IRC clause arbitration of new contract terms
along with a prohibition against strikes, sought to evade its
statutory duty to bargain collectively with the Union as the
representative of the employees here affected, and that its
demand consequently dealt with a nonmandatory subject
of collective bargaining within the meaning of the Supreme
Court's decision in Borg-Warner. And I further conclude
and find that the Respondent, on July 30, 1971, and at all
times thereafter, specifically again on or about August 18,
24 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.
15
1971, insisted to the point of impasse as a condition of any
collective agreement on the continuation of the IRC
clause, and that it thereby violated Section 8(aX5) and (1)
of the National Labor Relations Act.
Upon the foregoing findings of fact and the entire
record, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, Mechanical Contractors Associa-
tion of Newburgh, and its employer members, are and at
all material times have been employers engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Union, Local Union No. 269, United Associa-
tion of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of Newburgh, New York, is and at all
material times has been a labor organization within the
meaning of Section 2(5) of the Act.
3. The Union is and at all material times has been the
statutory exclusive collective-bargaining representative of
all journeymen and apprentice plumbers and pipefitters
employed by the Respondent 's members.
4. By insisting to the point of impasse, as a condition of
a new collective-bargaining agreement with the Union, on
the continuation of the IRC clause, a provision which
requires arbitration of new contract terms and no econom-
ic action and which consequently is not a mandatory
subject of bargaining, the Respondent has since July 30,
1971, and specifically again on or about August 18, 1971,
engaged in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
IV. THE REMEDY
Having found that the Respondent violated Section
8(a)(5) and (1) of the Act by insisting on a nonmandatory
contract provision to which the Union objected, it will be
recommended that the Respondent be ordered to cease
and desist from such conduct and take certain affirmative
action in order to effectuate the policies 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, 1 hereby issue the following recommended: 24
ORDER
The Respondent, Mechanical Contractors Association
of Newburgh, Newburgh, New York, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain with the Union as the statutory
exclusive bargaining representative of all journeymen and
apprentice plumbers and pipefitters employed by the
Respondent's members.
(b) Refusing to bargain with the Union by insisting and
demanding that the Union agree as a condition of any
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 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective-bargaining contract on the inclusion therein of a
provision that the Union arbitrate new contract terms and
withhold economic action in connection therewith.
(c) In any like or related manner refusing to bargain
collectively with the Union by insisting upon the inclusion
in any collective-bargaining agreement of any clause or
other proposal not involving wages, hours, and other terms
and conditions of employment.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Bargain With the Union upon request as the statutory
exclusive bargaining representative of all journeymen and
apprentice plumbers and pipefitters employed by the
Respondent's members.
(b) Notify the Union in writing that the Respondent will
not insist that the Union agree to arbitrate new contract
terms and forego economic action in connection therewith
as a condition of entering into a collective-bargaining
contract with the Union.
(c) Post in the Respondent's business offices and meeting
places, and, the Respondent's members willing, in the
places of business of such members, copies of the attached
notice marked "Appendix." 25 Copies of said notice, on
forms provided by the Regional Director for Region 2,
after being duly signed by the Respondent's representative,
shall be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to its
members and its members' employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 2, in writing,
within 20 days from receipt of this Decision, what steps the
Respondent has taken to comply herewith.26
25 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
26 In the event this recommended Order is adopted by the Board, this
provision shall be modified to read "Notify said Regional Director, in
writing , within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL bargain upon request with Local Union
No. 269, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry
of Newburgh, New York, as the exclusive bargaining
agent of all journeymen and apprentice plumbers and
pipefitters employed by employers who are our
members.
WE WILL NOT insist and demand in bargaining with
said Union that the Union agree, as a condition of any
collective-bargaining contract, on the inclusion therein
of a provision that the Union will arbitrate new
contract terms and withhold economic action in
connection therewith, and we will notify the Union to
that effect.
WE WILL NOT in any like or related manner refuse to
bargain with the said Union by insisting upon the
inclusion in any collective-bargaining agreement of any
clause or other proposal not involving wages, hours,
and other terms and conditions of employment.
MECHANICAL CONTRACTORS
ASSOCIATION OF
NEWBURGH
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 36th Floor, Federal
Building, 26 Federal Plaza, New York, New York 10007,
Telephone 212-264-3311.