Pueblo Sheet Metal Workers, Inc

National Labor Relations Board - Board Decisions

Feb 7, 1989

292 N.L.R.B. 855 (N.L.R.B. 1989)

PUEBLO SHEET METAL WORKERS
Pueblo Sheet Metal Workers , Inc and Sheet Metal
Workers Local Union No 9 Case 27-CA-
10215
February 7, 1989
ORDER DENYING APPEAL
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On August 9, 1988, Administrative Law Judge
Jay R Pollack issued the attached Order Permit-
ting Withdrawal of Complaint in this proceeding
Counsel for the Charging Party filed an appeal, ex-
ceptions, and a supporting brief, and the Respond-
ent filed an answering brief
The judge, in granting the General Counsel's
posthearing motion for permission to withdraw the
complaint, found that the General Counsel had de
termined that the legal underpinnings of the com-
plaint no longer existed as a result of the recent
Board decision in Brannan Sand & Gravel Co, 289
NLRB 977 (1988) 1
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board treats the Charging Party's appeal
and exceptions as an appeal of a ruling of an ad-
ministrative law judge under Section 102 26 of the
Board's Rules,2 and denies the appeal because we
find that the judge did not act arbitrarily or capa-
ciously or otherwise abuse his discretion in grant-
ing the General Counsel's motion 3 Having duly
considered the matter,
i Member Higgins did not participate in Brannan He disagrees with
the holding there that construction industry collective bargaining rela
tionships predating the enactment of Sec 8(f) in 1959 are presumed to be
8(f) relationships In Higgins view there could not be an 8(f) sanctioned
relationship before its enactment Accordingly Sec 10(b) of the Act
would preclude any inquiry into the nature of a relationship that has ex
isted continuously for more than 30 years See Bryan Mfg v NLRB 362
U S 411 (1960) However absent any indication from a majority of the
current Board-including three members who participated in Brannan-
of a desire to depart from the holding there Member Higgins agrees that
the judge did not abuse his discretion in granting the General Counsels
motion to withdraw the complaint in this case
2 See Consumers Distributing 274 NLRB 346 fn 1 (1985)
We note the concerns expressed by former Member Dennis in her par
teal dissent in Consumers Distributing but we conclude that under the
Board law as explained in the Supreme Court s subsequent decision in
NLRB v Food & Commercial Workers Local 23 108 S Ct 413 419-420
(1987) it is clear that just as an aggrieved party could obtain judicial
review of any Board order effectively approving an informal settlement
that results in withdrawal of complaint after a hearing on the complaint
has commenced so the order in the present case in which the Board re
views the administrative law judge s ruling under an abuse of discretion
standard and effectively disposes of the case is a judicially reviewable
order Hence the reasons for former Member Dennis unwillingness to
treat the submission as an appeal under Rule 102 26 are no longer a
matter for concern
a The decision whether to grant a motion to withdraw a complaint is
within the discretionary authority of the judge See General Maintenance
Engineers 142 NLRB 295 (1963 ) I-fence the Board limits its scope of
review to an inquiry as to whether the administrative law judge abused
855
IT IS ORDERED that the Charging Party's appeal
from the judge's granting of the General Counsel's
motion for permission to withdraw the complaint is
denied
his discretion See Consumers Distributing supra Greyhound Lines 235
NLRB 1100 fn 2 (1978) and Graphic Arts Local 277 (Mueller Color) 230
NLRB 1219 fn 4 (1978)
Donald Gene Chavez Esq , for the General Counsel
Robert R Miller Esq (Stettner Miller & Cohn) of
Denver Colorado , for the Respondent
Walter C Brauer III Esq (Brauer & Buescher) of
Denver Colorado , for the Union
ORDER PERMITTING WITHDRAWAL OF
COMPLAINT
JAY R POLLACK, Administrative Law Judge On
August 20, 1987, Sheet Metal Workers Local Union No
9 (the Union) filed the instant charge against Pueblo
Sheet Metal Workers, Inc (Respondent) A complaint
issued on September 28, 1987 alleging that Respondent
violated Section 8(a)(5) of the Act by the following con
duct (a) Since on or about July 16, 1987 Respondent
has failed and refused to meet and bargain with the
Union concerning wages, hours, and other terms and
conditions of employment, (b) since on or about July 16,
1987, Respondent has repudiated its collective bargaining
relationship with the Union and (c) since on or about
July 16, 1987 Respondent has unilaterally changed
wages , fringe benefits, and other terms and conditions of
employment of employees working in the bargaining
unit
I heard this case in teal on April 28 1988, in Pueblo
Colorado After the submission of postheanng briefs on
July 25, 1988, the General Counsel filed a Motion to
Withdraw Complaint based on the Board s decision in
Brannan Sand & Gravel Co, 289 NLRB 977 (1988)
Thereafter I issued an order to show cause why the
complaint should not be withdrawn, and on August 8,
1988 the Union filed a Response Objecting to General
Counsels Motion to Withdraw Complaint For the fol
lowing reasons I grant the General Counsels motion
Respondent, a heating and air conditioning contractor
in the building and construction industry had a collec
tive bargaining relationship with Local 118 of the Sheet
Metal Workers International Association since at least
the early 1950s In 1963 Local 118 merged with Local 9,
the Union here Since the merger in 1963 Local 9 has
represented the Respondents employees In 1968, the
bargaining unit was merged into a multiemployer, state
wide unit represented by the Union By 1987, the time of
the instant dispute, Respondent had withdrawn from
multiemployer bargaining and the employees were repre
sented by the Union in a single employer bargaining unit
On July 16, 1987, Respondent believing it was privi
leged to do so under the Boards decision in John
Deklewa & Sons 282 NLRB 1375 (1987), repudiated its
obligation to bargain with the Union and its recognition
of the Union as the employees collective bargaining rep
resentative On that same date Respondent unilaterally
292 NLRB No 96
856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
implemented changes in wages, benefits, and other terms
and conditions
The General Counsel and the Union contended that
since the bargaining relationship predated the 1959
amendments to the Act which establishes and sanctions
Section 8(f) contracts, the Union was a 9(a) majority rep
resentative This theory was rejected by the Board in
Brannan Sand & Gravel supra Thus, the General Coun
sel seeks to withdraw the complaint i
First, the Union objects to the withdrawal on proce
dural grounds I find that the General Counsels with
drawal is procedurally correct under Section 102 27 of
the Board s Rules and Regulations See Brandeis School,
287 NLRB 836 (1987)
Second, the Union seeks a delay to determine whether
to move to reopen the record to obtain more evidence
on the collective bargaining representative status of the
Union " I deny this request for two reasons The parties
clearly had the opportunity to present evidence concern
ing initial recognition but did not or could not present
such evidence at the hearing Most important, such evi
i The case also involves a successorship issue For purposes of this
order I asume that the General Counsel and Union would prevail on the
successorship issue
dence would most likely have no effect on the outcome
of the case Assuming arguendo that initial recognition
was under Section 9(a) the bargaining unit greatly ex
panded in 1968 (becoming a multiemployer, statewide
unit), and there was no evidence that the 1968 recogni
tion was under Section 9(a) of the Act Under Deklewa
and Brannan Sand, the burden was on the General Coun
sel and the Union to establish that such was not recogni
tion under Section 8(f)
Third, the Union seeks a decision on the meets to
allow the Union its right to request review by the
Board While this order permits the General Counsel to
withdraw the complaint, the Union s appeal rights are
protected Any party may obtain review of this action by
filing a request therefrom with the Board in Washington,
D C, stating grounds for review and immediately on
such filing shall serve a copy thereof on the other par
ties Unless the request is filed within 20 days from the
date of this Order, the case shall be closed See Section
102 27 of the Board s Rules and Regulations of the Na
tional Labor Relations Board
Accordingly,
IT IS ORDERED that the General Counsels Motion to
Withdraw Complaint is granted and the case is closed