The Anaconda Co.

National Labor Relations Board - Board Decisions

Jun 17, 1976

224 N.L.R.B. 1041 (N.L.R.B. 1976)

THE ANACONDA COMPANY
The Anaconda Company and Local No 81 , Interna-
tional Association of Bridge, Structural and Orna-
mental Iron Workers , AFL-CIO Cases 19-CA-
7528 and 19-CA-7529
June 17, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On January 21, 1976, Administrative Law Judge
William J Pannier III issued the attached Decision
in this proceeding Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed cross-exceptions together with a sup-
porting brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein 2
The Administrative Law Judge found that Re-
spondent violated Section 8(a)(5) of the Act by fail-
ing to execute and implement a written contract em-
bodying the terms of an agreed-upon apprenticeship
program and by refusing to assign work to union
members at the Arbiter plant thereby effecting a par-
tial withdrawal of recognition We agree The Ad-
ministrative Law Judge concluded, however, that the
complaint contained no allegation that Respondent
further violated Section 8(a)(5) with respect to the
subcontracting of work at its Arbiter facility Ac-
cordingly, he declined to consider whether Respon-
dent's actions with regard to subcontracting at that
plant further violated Section 8(a)(5) of the Act The
General Counsel has excepted to this finding Con-
1 The Administrative Law Judge denied Respondent s motion to defer the
underlying charges to arbitration under the principles set forth in Collyer
Insulated Wire A Gulf and Western Systems Co 192 NLRB 837 (1971)
Although Respondent has filed a general exception to the Administrative
Law Judge s entire Decision it has not filed any specific exception to this
finding In any event the Board adopts the ruling of the Administrative
Law Jadge since under any view of Collyer the case is not a proper one for
deferral
Since we find that this case is not in any event a proper one for deferral
we find it unnecessary to comment upon the Administrative Law Judge s
findings and conclusions with respect to the financial disparity between
Respondent and the Union as a basis for not deferring to arbitration as
General Counsel urged
2 Respondents request for oral argument is hereby denied as the record
and the parties briefs adequately set forth the issues and positions of the
parties
1041
trary to the Administrative Law Judge, and for the
reasons set forth below, we find that Respondent's
actions with respect to the subcontracting of work at
its Arbiter facility constitute an additional refusal to
honor an agreement with the Union 3 in violation of
Section 8(a)(5) and (1) of the Act
The complaint alleges that Respondent violated
Section 8(a)(5) in that "At all times since July 1,
1974, Respondent has failed and refused and contin-
ues to fail and refuse to apply the terms of the collec-
tive bargaining agreement to its Arbiter plant "
The General Counsel contends that Respondent
failed to abide by a provision contained in the collec-
tive-bargaining agreement requiring Respondent to
provide the Union with notice and an opportunity to
bargain concerning the subcontracting of unit work
at the Arbiter plant Contrary to the Administrative
Law Judge, we find that the allegations contained in
the complaint are sufficiently broad to cover such an
assertion
Although the Administrative Law Judge declined
to consider Respondent's actions with respect to sub-
contracting as potentially violative of the Act, he
found facts which support and sustain such a viola-
tion Thus, on or about July 1, 1974, Respondent and
the Union agreed, by letter of intent, that Respon-
dent notify the Union of, and bargain over, the sub-
contracting of unit work 4 By letter dated May 20,
1975, Respondent invited the various crafts, includ-
ing the Union, to discuss a massive improvement
program which would involve the subcontracting of
unit work On May 21, 1975, and prior to receipt of
Respondent's letter by the craft unions, Respondent
notified General Contractors in writing that it had
been selected to perform the work in contention with
the improvement program rationale Thus, at the
very time Respondent ostensibly was offering to bar-
gain about the subcontracting of unit work, it was
taking action directly contrary to that offer and
which would foreclose any meaningful bargaining
on such matter Consequently, we find that
Respondent's action in failing to notify the Union
prior to subcontracting work to General Contractor.
and in failing thereby to give it an opportunity to
bargain as to such subcontracting constituted a re-
fusal to bargain over the subcontracting of unit work
in violation of the express terms of its agreement with
the Union We therefore find that its refusal to honor
this agreement constitutes a violation of Section
8(a)(5) and (1) of the Act
3It is not contended that the extension of the contract to the Arbiter
facility was invalid for any reason
The letter of intent agreed to by Respondent and the Union provides in
part as follows No decision with respect to whether or not the Company
will contract out such work will be made until the Company has bargained
in good faith with the Union about the matter
224 NLRB No 141
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(k) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
herein and hereby orders that the Respondent, The
Anaconda Company, Anaconda, Montana, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
modified below
1 Insert the following as paragraph 1(c) and relet-
ter the subsequent paragraph accordingly
"(c) Failing and refusing to honor and abide by
the terms and conditions of its collective-bargaining
agreement with Local No 81, International Associa-
tion of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO, by refusing to bargain over the
subcontracting of unit work at its Arbiter plant "
2 Substitute the following for paragraphs 2(b) and
(c)
"(b) Honor the collective-bargaining agreement in
effect with Local No 81, International Association
of Bridge, Structural and Ornamental Iron Workers,
AFL-CIO, for all locations and all employees in the
aforesaid appropriate bargaining unit in making
work assignments and by bargaining over the sub-
contracting of unit work
"(c) Make whole all employees in the aforesaid
appropriate bargaining unit for any losses of benefits
which would have accrued to them under the agree-
ment reached on July 30, 1974, on the terms and
conditions of an apprenticeship program, and for
any loss of benefits which would have accrued to
them because Respondent has failed and refused to
bargain over the subcontracting of unit work at its
Arbiter plant and has failed and refused to assign
work at its Arbiter plant to employees represented by
Local No 81, International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-
CIO, with interest to be paid at the rate of 6 percent
per annum thereon "
3 Substitute the attached notice for that of the
Administrative Law Judge
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended,
gives all employees the following rights
To organize themselves
To form, join, or support unions
To bargain as a group through a representa-
tive they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activity ex-
cept to the extent that the employees' bargain-
ing representative and employer have a collec-
tive-bargaining agreement which imposes a
lawful requirement that employees become
union members
WE WILL NOT refuse to execute and implement
a written contract embodying an agreement
reached with Local No 81, International Asso-
ciation of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO, on the terms and con-
ditions of an apprenticeship program for the em-
ployees in the following appropriate unit
All ironworker employees employed by the Ana-
conda Company at its mine, mill, smelting and
refining locations in the State of Montana, in-
cluding the Arbiter plant at Anaconda, Mon-
tana
WE WILL NOT fall and refuse to assign work to
members of Local No 81, International Associ-
ation of Bridge, Structural and Ornamental
Ironworkers, AFL-CIO at our Arbiter plant
where our object is to preclude that Union from
representing employees at Arbiter
WE WILL NOT fall and refuse to honor and
abide by the terms and conditions of our agree-
ment with Local No 81, International Associa-
tion of Bridge, Structural and Ornamental Iron
Workers, AFL-CIO refusing to bargain over the
subcontracting of unit work at our Arbiter plant
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the ex-
ercise of your rights under the National Labor
Relations Act set forth above
WE WILL, upon request by Local No 81, Inter-
national Association of Bridge, Structural and
Ornamental Iron Workers, AFL-CIO, forthwith
execute a written contract embodying the agree-
ment reached on the terms and conditions of an
apprenticeship program for all employees in the
above-described bargaining unit, and put into
effect its provisions
WE WILL honor the collective-bargaining
agreement in effect with Local No 81, Interna-
tional Association of Bridge, Structural and Or-
namental Iron Workers, AFL-CIO, for all loca-
tions and all employees in the above-described
bargaining unit in making work assignments
THE ANACONDA COMPANY
and by bargaining over the subcontracting of
unit work
WE WILL make whole all ironworker employ-
ees employed at our mine, mill, smelting and re-
fining locations in the State of Montana, includ-
ing the Arbiter plant at Anaconda, Montana, for
any loss of benefits which would have accrued
to them under the contract for an apprenticeship
program which we have refused to execute and
under the collective-bargaining agreement
which we have refused to honor at our Arbiter
plant in making work assignments and refusing
to bargain over the subcontracting of unit work,
with interest to be paid at the rate of 6 percent
per annum thereon
THE ANACONDA COMPANY
DECISION
STATEMENT OF THE CASE
WILLIAM J PANNIER III, Administrative Law Judge This
matter was heard by me in Butte, Montana, on October 3,
4, 21, and 22, 1975 On July 15, 1975, the Regional Director
for Region 19 issued an order consolidating cases , consoli-
dated complaint and notice of hearing, based on unfair
labor practice charges filed on January 27, 1975, as amend-
ed on March 5, 1975, and alleging violations of Section
8(a)(5) and (1) of the National Labor Relations Act, as
amended, 29 U S C § 151, et seq, herein called the Act
All parties have been afforded full opportunity to ap-
pear, to introduce evidence, to examine and cross examine
witnesses , and to file briefs Based on the entire record,
upon the briefs filed on behalf of the General Counsel and
on behalf of the Respondent, and upon my observation of
the demeanor of the witnesses, I make the following find
ings of fact and conclusions of law
I .URISDICTION
At all times material herein, The Anaconda Company,
herein called Respondent, has been a Montana corpora-
tion, with office and place of business located at Butte,
Montana, engaged in the business of mining, milling,
smelting, refining, and fabricating copper and other pro-
cessing resources During the past 12 months, a representa-
tive period, Respondent has sold and shipped products val-
ued in excess of $50,000 from its Montana facilities to
points outside the State of Montana
Therefore, I find, as admitted in the answer, that at all
times material Respondent has been an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act
II THE LABOR ORGANIZATION INVOLVED
At all times material herein, Local No 81, International
Association of Bridge, Structural and Ornamental Iron-
1043
workers, AFL-CIO, herein called the Union , has been a
labor organization within the meaning of Section 2(5) of
the Act
III ISSUES
A Whether the complaint in this matter should be dis-
missed, in deference to the grievance and arbitration provi-
sions of the collective-bargaining agreement between Re-
spondent and the Union9
B Whether Respondent has failed and refused to exe-
cute and implement a written contract embodying an
agreement reached with the Union on the terms and condi-
tions of an apprenticeship program, thereby violating Sec-
tion 8(a)(5) and (1) of the Act9
C Whether Respondent has failed and refused to honor
and abide by the terms and conditions of its collective-
bargaining agreement with the Union in refusing to apply
the terms and conditions of that agreement to its Arbiter
plant, thereby violating Section 8(a)(5) and (1) of the Act9
IV MOTION TO DEFER TO ARBITRATION
Respondent moves that the complaint be dismissed and
that further disposition on the underlying charge be defer-
red until such time as the parties have had an opportunity
to attempt to resolve the matters at issue through the griev-
ance and arbitration provisions of their collective-bargain-
ing agreement This motion is, of course, predicated upon
the principles enunciated by the Board in Collyer Insulated
Wire, A Gulf and Western Systems Co, 192 NLRB 837
(1971), and since the Board construes such matters as
"threshold issues" this motion must be resolved before
considering the substance of the allegations in this matter
Bio Science Laboratories, 209 NLRB 796, fn 3 (1974),
Champlin Petroleum Company, 201 NLRB 83, fn 2 (1973)
In opposition to the motion, counsel for the General
Counsel advances several grounds First, with regard to the
allegation concerning failure to execute an apprenticeship
agreement, he argues that Respondent's own collective-
bargaining agreement precludes arbitration of such an is-
sue and that, in any event, the Collyer doctrine does not
encompass deferral of an issue of whether parties have
reached agreement Second, with regard to the allegation
concerning failure to apply the collective-bargaining agree-
ment to the Arbiter plant, counsel for the General Counsel
argues that this is basically an allegation that Respondent
has repudiated the agreement and that, where repudiation
is shown, the Board has declined to apply the Collyer prin-
ciple which, after all, is designed to give effect to the par-
ties' efforts to harmonize their relationship Finally, coun-
sel for the General Counsel argues that the Union's
financial position is so dire and its financial status vis a vas
Respondent so disparate, that the Collyer doctrine should
not be applicable lest the Union be deprived of all remedial
avenues by virtue of its inability, known to Respondent, to
afford arbitration
The concept of deferral pending arbitration did not ori-
ginate in the Collyer decision, as the majority in that case
pointed out (192 NLRB at 841-842) However, prior to
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Collyer, the concept of prearbitration deferral had been ap-
plied sporadically and there were no guidelines as to the
circumstances under which the Board would defer to pri-
vate methods of resolving disputes in situations where no
arbitration had yet occurred at the time that the matter was
before the Board for decision Thus, the only novel facet of
Collyer was the formulation of guidelines for regularizing
prearbitration deferral The Board stated that it would de-
fer where the "dispute in its entirety arises from the con-
tract between the parties, and from the parties' relationship
under the contract " (at 839) such that " the Act
and its policies become involved only if it is determined
that the agreement between the parties, examined in the
light of its negotiating history and the practices of the par-
ties thereunder, did not sanction Respondent's right '
to engage in the disputed conduct (at 842) and such that
the dispute could " better be resolved by arbitrators
with special skill and experience in deciding matters arising
under established bargaining relationships than by applica-
tion by this Board of a particular provision of our statute "
(at 839) This, of course, appeared to narrow application of
the doctrine of regularized prearbitration deferral to that
class of cases where the right purportedly infringed was
one which was privately created and where the very issue
was whether that infringement was permitted under the
agreement struck by the parties i Additionally, the Board
enunciated two restrictions upon the application of the
Collyer doctrine the arbitration to which deferral is ac-
corded must in fact resolve the disputed question and the
disputed conduct must not have been undertaken with a
motive deemed independently unlawful
Following Collyer, the Board issued a number of deci-
sions which modified the rationale in Collyer, thereby ex-
panding the class of cases to which the doctrine of prearbi-
tration deferral would be applied Thus, the element of
dispute rooted in a contractually created right was discard-
ed in favor of testing the type of disputes to which deferral
would be accorded on the basis of ability to achieve resolu-
tion through resort to contractually prescribed arbitration,
though the right assertedly infringed be simply a contractu-
al restatement of a right statutory in origin See, e g, News
paper Guild of Brockton, 201 NLRB 793 (1973), affd 493
F 2d 1024 (C A 1, 1974), National Radio Company, Inc,
198 NLRB 527 (1972) Moreover, application of the Collyer
doctrine ceased to be dependent on the absence of a mo-
tive independently unlawful under the Act, for it was ap-
plied to situations where, had the General Counsel pre-
vailed in proving the allegations of the complaint, it would
have been established that the employers were motivated
by unlawful considerations See, e g, United States Postal
Service, 210 NLRB 560 (1974), National Radio Company,
Inc, supra Finally, the "special skill and experience in de-
ciding matters arising under established bargaining rela-
tionships" attributed to arbitrators by the Board in Collyer
became less of a determinant and the Board has been will-
This of course would encompass situations where a union waived its
right to prior notification and bargaining concerning changes in employees
terms and conditions of employment as the threshold question would still
be whether the parties had agreed that further bargaining on the disputed
subject was not needed should the employer decide to change existing prac
tice
ing to defer issues as long as arbitrators are as capable as
the Board of resolving them See, e g, Tyee Construction
Co, 202 NLRB 307, 308, fn 3 (1973)
These modifications in the Collyer doctrine appear to
have been influenced by two paramount considerations
First, the Board has been attempting to further a national
policy of avoiding industrial strife through voluntary reso-
lution of disputes, Collyer Insulated Wire, supra, at 843, by
encouraging parties to utilize that facet of their collective-
bargaining relationship which provides for privately
agreed-upon methods of resolving disputes arising in the
context of a collective-bargaining agreement, thereby con-
tributing to maturation of their bargaining relationship
United Aircraft Corporation, 204 NLRB 879, 881 (1973),
The Seng Company, 205 NLRB 200, 201 (1973) Secondly,
the Board has been attempting to increase the speed with
which disputes are resolved, thereby reducing the inherent
friction generated by prolongation of controversy Thus,
resort to privately established arbitral procedures has been
viewed as a method for achieving " quick and fair vin
dication of employee rights " Tyee Construction, supra at
308 In this regard, the Board has taken cognizance of its
own rising caseload and of the need to exert some effort to
reduce its caseload so that concomitant speed can be
achieved in processing individual cases National Radio, su
pra United Aircraft Corp, supra at 880 Consequently, by
resorting to the alternative forum of arbitration for that
class of cases where the disputes involve subjects covered
by a collective-bargaining agreement and where arbitra-
tion, binding upon all parties, provides a means of resolu-
tion equally effective to that provided under the Act, the
Board reinforces national policy favoring mature bargain-
ing relationships and eliminates this class of cases from its
own caseload, thereby relieving it to more expeditiously
handle other classes of disputes for which no alternative
forums for resolution exist
The doctrine of regularized prearbitration deferral, how-
ever, is not without limitation Thus, disputes over the
terms and meaning of existing contracts have been distin
guished from disputes concerning whether parties have le-
gally bargained on the ground that the latter " are legal
questions concerning the National Labor Relations Act
which are within the special competence of the Board rath-
er than of an arbitrator " The Columbus Printing Pressmen
& Assistants' Union No 252 (The R W Page Corporation),
219 NLRB 268 (1975) (plurality opinion of Members Ken-
nedy and Penello) Illustrative of this is the Board's en
dorsement of the view that Collyer is inapplicable to dis-
putes concerning whether a party has refused to comply
with the requirement of Section 8(d) of the Act that parties
execute a contract embodying agreements reached on re-
quest Teamsters Union Local No 85, International Brother
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America (Tyler Bros Drayage Co), 206 NLRB 500, 507-
509 (1973) Similarly, though the precise point at which
distinction from ability to achieve resolution through arbi-
tration is not yet completely clear, the Board has agreed
that no deferral should be accorded to matters which,
while susceptible to arbitration under agreements, are fac-
tually undisputed and which are primarily statutory in na-
ture Harley Davidson Motor Co, Inc AMF 214 NLRB
THE ANACONDA COMPANY
361 (1974), Diversified Industries, a Division of Independent
Stave Company, 208 NLRB 233, 243 (1974) Nor will the
Board defer where disputes arise independently of a collec-
tive-bargaining agreement, Reapp Typographic Service, Inc,
204 NLRB 792, fn 2 (1973), or where disputes involve lo-
cations or employees to which the agreement has not been
applied Pauley Paving Company, 200 NLRB 861 (1972),
affd per curiam 85 LRRM 2594, 73 LC ¶14,346 (CA 4,
1974) Finally, the Collyer doctrine will not apply where a
dispute arises from conduct designed to frustrate the very
procedures which the doctrine was designed to promote,
thus demonstrating a repudiation of peaceful and orderly
procedures for resolving disputes, Joseph T Ryerson &
Sons, Inc, 199 NLRB 461 (1972), United States Postal Ser
vice, 215 NLRB 488 (1974), nor where, on a much broader
plane, the dispute arises from conduct " striking a
death blow to the contract as a whole, and is thus, in reali-
ty, a basic repudiation of the bargaining relationship " Oak
Cliff-Golman Baking Company, 207 NLRB 1063, 1064
(1973)
It is against this background which Respondent's motion
for deferral of both issues in this case must be considered
In June 1974,2 during the negotiations for the current
agreement to which Respondent and the Union are parties,
Respondent agreed to accord an apprenticeship program
to the Union and, by letter of understanding dated July 1
and incorporated into the current agreement, Respondent
confirmed this understanding in writing "It is understood
that the International Association of Bridge, Structural and
Ornamental Ironworkers will be provided an apprentice-
ship program " Under the current collective-bargaining
agreement, binding arbitration is provided as the final step
for resolution of grievances and Article 10, Section 2(b),
defines "grievance" as
any controversy or dispute between the parties or
between the Company and the employees covered by
this agreement as to any matter involving the interpre-
tation, application, or violation of any provision of
this agreement or of existing customs, practices, usag-
es, rules, working conditions or contract system
Respondent argues that the very breadth of this provision
is sufficient to encompass its dispute with the Union con-
cerning whether agreement was subsequently reached, in
late July, upon the terms and conditions of an apprentice-
ship agreement and, accordingly, contends that further
proceedings on this allegation of the complaint should be
deferred
However, as counsel for the General Counsel points out,
the collective-bargaining agreement also provides, in arti-
cle 10, section 2(c) "The grievance machinery may not be
used to obtain a revision of, or addition to the existing
contract " Since the terms of the apprenticeship agreement
which the Union asserts that it did reach in July do, as
Respondent itself points out, constitute an addition to the
terms of the collective-bargaining agreement to which Re-
spondent and the Union are parties, it would appear that
deferral would be precluded by virtue of the fact that an
issue is presented which is not encompassed by the arbitral
2 Unless otherwise stated all dates occurred in 1974
1045
process as limited by the parties Reapp Typographic Ser
vice, supra Consequently, by its terms, Respondent's col-
lective-bargaining agreement precludes resolution of this
dispute through the contractually prescribed arbitration
procedures, contra Newspaper Guild of Brockton, supra
Moreover, as pointed out above, the Collyer doctrine has
been limited to preclude deferral of disputes not involving
the terms and meaning of a contract The Board has de-
clined to defer to arbitration disputes involving legal ques-
tions arising from obligations imposed by the Act, such as
whether there has been compliance with the requirement of
Section 8(d) that parties execute a contract embodying an
agreement reached Tyler Bros Drayage, supra Thus, the
issue presented by the General Counsel's allegation that
Respondent has failed and refused to execute an appren
ticeship agreement is one precluded by Respondent's con-
tract from arbitration and is one involving a legal question
within the special competence of the Board Therefore, I
deny Respondent's motion to dismiss this allegation of the
complaint and to defer resolution to the privately created
method for resolving disputes
With respect to the allegation concerning the then newly
created Arbiter plant, as a result of the June negotiations a
letter of understanding, dated July 1, issued, providing
"The Arbiter Plant will be included in the bargaining
agreement as a location of The Anaconda Company sub-
ject to its terms " One such "term" is article 9, section 1, of
the collective-bargaining agreement which provides that
job assignments are to be made in accordance with juris-
dictional lines established by past practice Thus, to this
extent, there is a substantial basis for Respondent's motion
to defer in view of the fact that the dispute is one concern-
ing work assignments, a subject embodied expressly in the
agreement See Eastman Broadcasting Company, Inc, 199
NLRB 434 (1972) However, counsel for the General
Counsel points out that Respondent's conduct in assigning
and subcontracting work at Arbiter has been such that,
notwithstanding the agreement, not one member of Re-
spondent has been assigned work at Arbiter Moreover,
counsel for the General Counsel also points to certain evi-
dence which, he contends, would establish that
Respondent's conduct in this regard had been undertaken
for the deliberate purpose of foreclosing the Union from
ever representing employees at Arbiter, notwithstanding its
agreement to include that facility in the bargaining unit
and the collective-bargaining agreement's requirement that
past practice be followed in determining work jurisdiction
It bears restating at this point that the merits of the Gen-
eral Counsel's allegation concerning Respondent's conduct
at Arbiter are not to be considered and the only issue is
whether the allegation is of such a nature that deferral is
appropriate Champlin Petroleum, supra Analyzing the
matter on this basis, if the evidence does support the alle-
gation in the complaint, the General Counsel will have
shown that, in fact, Respondent has been refusing to apply
its agreement, insofar as the Union is concerned, to Arbi-
ter Consequently, deferral of disputes at that location
would be precluded Pauley Paving, supra More funda-
mentally, the allegation transcends a simple dispute over
work assignments and charges Respondent with an out-
right repudiation of a prior agreement designed to coin
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pletely preclude the Union from representing employees at
Arbiter As stated above, arbitration will not be accorded
where the conduct giving rise to the dispute constitutes a
basic repudiation of the bargaining relationship Oak Chff-
Golman Baking supra If the evidence supports the General
Counsel's allegation , it would hardly promote maturation
of a collective -bargaining relationship to defer to arbitra-
tion a dispute arising from an employer 's effort to under-
mine the representative status of a labor organization Ac-
cordingly , I deny Respondent 's motion to dismiss this
allegation and to defer resolution to the privately created
method for resolving disputes
Therefore , I find that the two allegations in this matter-
refusal to execute a contract embodying the parties ' agree-
ment on an apprenticeship program and refusal to honor
the application of the collective -bargaining agreement to
the Arbiter site-are of a type to which the Board has de-
clined to apply the doctrine of prearbitration deferral As
set forth above, the General Counsel also asserts that de-
ferral is not warranted because of the disparity of financial
positions of the parties , which has left the Union unable, as
a practical matter, to afford to arbitrate disputes Though it
is not necessary to resolve this issue in light of my findings
above , should the Board disagree with those findings, then
this contention would have to be addressed
Over the past 10 years, the Union has been involved in
four arbitrations One, occurring in 1973, involved solely
the Union and Respondent It cost the Union $2,336 16,
although the Union's treasurer , Emil L Kamps, acknowl-
edged that the cost was inflated by the Union 's choice of a
Washington counsel, by the parties ' agreement to select an
arbitrator from Pittsburgh , Pennsylvania, and by abnormal
witness and mileage fees The other three arbitrations have
involved labor organizations in addition to the Union and
the latter is responsible for payment of only a proportion-
ate share of the expenses Though no payment has yet been
made for these three arbitrations, Union President and
Business Agent Albert H Boognl estimated their costs to
be such that the Union would have to pay between $1,600
and $1,800 total for all three
Since mid-1973, the Union's financial position has been
declining, with its net assets being $8 ,434 56 on June 30,
1972, rising to $8,939 34 on June 30 , 1973, dropping to
$7,853 54 on June 30, 1974, and being reduced further to
$7,230 83 on June 30, 1975 Moreover , Treasurer Kamps
testified that disbursements had exceeded receipts for ev-
ery month in 1975 preceding the hearing, save one, and
that cash surplus was approximately $4,000 as of Septem-
ber 30 , 1975, with the result that the Union could not af-
ford the expense that even one arbitration would entail
This decline is largely occasioned by the fact that journey-
men and apprentices are charged monthly dues at a flat
rate with an assessment of 1 percent of gross earnings
With the decline in the general economy, therefore, the
Union's receipts from its members , the number of which
have remained stable over the course of the past 10 years,
have declined Moreover , a majority of membership re-
cently rejected the recommendation of their officers that
there be an increase in the amount of dues paid by individ-
ual members , although there is no evidence that costs of
future arbitrations were discussed in connection with that
recommended increase In this regard, it was pointed out
that only approximately 25 percent of the Union's mem-
bers are employed by Respondent and Boognl testified
that he doubted that the other members would view with
favor the imposition of a special assessment to pay the
costs of arbitrating disputes with Respondent Kamps,
however, admitted that there had been no attempt within
the past 5 years to conduct an election to ascertain if, in
fact, a majority of the Union's members would oppose
such a special assessment While Boognl testified that the
Union had been rebuffed when it had sought financial aid
for arbitration costs from its own International and from
the Tri-Cities Metal Trades Council, of which the Union is
a member, no evidence was presented concerning the rea-
sons advanced for rejecting these requests
It is clear that a great number of grievances have been
filed by the Union since 1972 and these grievances have
been processed to the final step preceding arbitration, with
Respondent's officials being advised that the Union was
financially unable to pursue them into arbitration, al-
though it still disputed the conduct of Respondent which
gave rise to the grievances In the negotiations for the cur-
rent agreement, the Union proposed abolishing the arbitra-
tion provision, leaving final settlement of grievances to be
effected by economic action Respondent opposed this
proposal and suggested that another step be added to the
grievance procedure, prior to arbitration, which would in-
volve a meeting of the director of industrial relations, Nat-
ural Resources Group, or his designee with an internation-
al representative of the labor organization involved, or his
designee In advancing this proposal, director of industrial
relations, Natural Resource Group, R Lewis Brown, Jr,
explained that such a meeting by higher level officials
might serve to achieve resolution of a greater number of
grievances Though such a provision was ultimately includ-
ed in the current agreement, there is no evidence that it has
been utilized other than for the dispute arising from the
work assignments and subcontracting at Arbiter, where, of
course, it has failed to provide a successful resolution
Against this background, the General Counsel argues
that an exception to the Collyer doctrine is warranted even
if that doctrine would otherwise be applied in this matter
Thus, in the brief it is asserted
It is suggested that when a disparity of financial posi-
tion results in the inability of one party to make use of
the arbitral process and where such inability is both
objectively and subjectively felt by one party and
where the other party, Respondent here, is aware of
this fact and takes advantage of it, deferral to that
process is not appropriate
Several points, however, arise to diminish the effectiveness
of such an argument
First, assuming that it has been established that the
Union is financially unable to pursue disputes to arbitra-
tion, there is no evidence to support the argument that
Respondent has been deliberately taking advantage of that
inability Certainly, there is no direct evidence showing
that Respondent's actions which gave rise to the disputes
or that its actions during processing of the grievances con-
cerning those disputes were designed to take advantage of
THE ANACONDA COMPANY 1047
or benefit from the Union 's financial weakness In fact, the
only specific evidence in this area tends to refute the Gen-
eral Counsel 's argument , for, in advancing the proposal for
an added prearbitration step in the grievance procedure,
Brown expressed the opinion that such a step might lead to
resolution of additional grievances by involving higher lev-
el officials of both parties It could , of course , be argued
that this proposal was generated only by fear of the conse-
quences that might flow were the Union's proposal of abol
fishing arbitration and relying on economic sanctions to re-
solve disputes adopted Yet, it is somewhat less than
realistic to find that Respondent would fear the capacity of
a labor organization to maintain economic sanctions when
that labor organization is too financially weak to pursue
even a single dispute to arbitration
It is true that the Union has filed a large number of
grievances and has advised Respondent of its inability to
afford to arbitrate these matters However , the sincerity of
the Union 's belief in the merits of its grievances hardly
suffices to negate the assumption that Respondent has not
been equally sincere in its belief in the merits of its position
on each grievance To prevail on an argument based solely
on numbers , the General Counsel would have to demon
strate that the Union' s position on at least a majority of
these grievances would be sustained , and that Re-
spondent ' s position would be found to be without merit,
were these matters to be submitted to arbitration Even
then , there would have to be a further showing that
Respondent 's positions on the grievances were baseless in
order to infer that its insistence that they be arbitrated is
designed to preclude the Union from functioning effective-
ly through the mechanism of abuse of the grievance and
arbitration procedure None of this has been shown and,
consequently, I reject that portion of the General Counsel s
argument based on the assertion that Respondent has been
deliberately taking advantage of the Union's financial in-
ability to pursue disputes to arbitration
Secondly , it must be remembered that the existence of
an arbitration provision does not create the right to have
every dispute resolved by that means Rather, the parties
are obliged to make some efforts to achieve compromise
short of arbitration to avoid overburdening the private ma-
chinery for resolving disputes with grievances which, while
not frivolous , are not of such paramount import as to war-
rant the costlier and more time-consuming scrutiny of arbi-
tration Manuel Vaca v Niles Sipes, 386 U S 171, 191-192
(1967), Humphrey v Moore, 375 U S 335, 349 ( 1964) In an
effort to buttress the contention that the Union is finan-
cially unable to pursue to arbitration the two issues pre-
sented in the instant case, the General Counsel has simply
introduced evidence of a great number of grievances filed
in recent years by the Union However , there is essentially
no evidence regarding these past grievances beyond that
provided by their number alone and by summary written
profiles describing more recent ones There is no evidence
concerning the standard of selectivity , if any, employed by
the Union in making the underlying disputes the subjects
of grievances Nor is there any evidence regarding the ef-
forts, if any, which the Union has made to compromise in
attempting to resolve these disputes at some stage prior to
arbitration Nor has evidence been adduced to show some
effort by the Union to be selective in determining which of
these unresolved disputes warrant arbitration Absent fur
ther evidence of the type specified above, I do not believe
that the existence of these past disputes, reduced to griev-
ances but not arbitrated, is sufficient, of itself, to support
the argument that the Union is financially unable to arbi-
trate the matters presented in the instant case or, for that
matter, to support the conclusion that the Union should be
granted a carte blanche exception from the Collyer doctrine
in its disputes with Respondent
Finally, the evidence regarding the Union's financial sta-
tus, while certainly demonstrating that the Union con-
fronts a bleak outlook currently, leaves something to be
desired in terms of being the basis for granting an excep-
tion to the doctrine of regularized prearbitration deferral
with respect to the two issues presented in the instant case
Thus, while the Union's members recently voted against an
increase in dues, there is no evidence that this election was
conducted for the purpose of obtaining additional money
to afford arbitrating with Respondent-either in general or
for the two disputes in the instant case In fact, there is
every likelihood that this subject was not discussed in con-
nection with the requested dues increase, for while Boognl
suspected that a majority of the Union's members, em-
ployed elsewhere than at Respondent, would not support
an assessment to pay the costs of arbitrating disputes with
Respondent, it is acknowledged that no such request has
been made of the members during the past 5 years If, as
the Union suspects, Respondent is deliberately attempting
to take advantage of the Union s inability to arbitrate, the
Union would seemingly bear some obligation to at least
pose the issue to its members and seek to raise additional
finances before it could successfully argue that its inability
to pay warrants creation of an exception, based on finan-
cial inability, to the normal policy of deferral
Similar analysis applies to the testimony concerning the
requests for and rejections of assistance by the Union's
International and by the Tri-Cities Metal Trades Council
No details were provided concerning these requests and
rejections Thus, there is no way of ascertaining how fre-
quently or recently they occurred More important, there is
no basis for ascertaining the reasons for rejection of the
Union's requests Was it because the Union was filing too
many grievances? Or, because the grievances for which as-
sistance was requested were deemed frivolous9 Or, because
money was short at the time of the rejections Further-
more, experience teaches that international labor organiza-
tions are normally willing to assist their affiliated locals in
avoiding unfair action by the employers whose employees
those locals represent Seemingly, the Union's Internation-
al would be willing to pay the costs of arbitrating the issues
presented in the complaint, for they are, as found above,
serious matters, involving refusal to execute a contract em-
bodying a prior agreement and refusal to extend recogni-
tion to the Union at Arbiter, which, to some extent, involve
the very essence of the Union's ability to function as the
representative of Respondent's employees Thus, notwith-
standing past rejections, the International and the Tri-Cit-
ies Metal Trades Council might well view the issues pre-
sented in the complaint somewhat differently than they
viewed past grievances Consequently, to arbitrate these
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matters, assistance might be extended to the Union We
will never know, for, so far as the record discloses, the
Union never made a request for financial assistance in con-
nection with arbitration of these disputes
In view of the lack of evidence in the three areas delin-
eated above, I find that there are not sufficient facts to
warrant consideration of a financial disparity exception to
the Collyer doctrine in this case Furthermore, were there
such facts to establish disparity, I would still have great
difficulty recommending that an exception to the doctrine
of regularized prearbitration deferral be based on financial
disparity In this regard, I am not, of course, attempting to
appraise the wisdom, or lack thereof, of the underlying
doctrine Though the composition of the Board has
changed and while that change may lead to a restriction, or
even to abolition, of the prearbitration deferral doctrine,
Howard University, 211 NLRB 727 (1976), I am still bound
by existing law which recognizes its existence Rather, the
sole point of inquiry is the wisdom of creating the excep-
tion sought by the General Counsel
The Collyer doctrine is rooted in the private agreement
of the parties 3 As parties are responsible for being certain
in other areas that their agreements correspond with their
abilities to perform, so too should the application of Col
lyer depend on the agreement of the parties-that is, on
their tacit representation, in agreeing to arbitration, that
they are financially capable of performing and of arbitrat-
ing disputes, subject, of course, to good faith in their per-
formance This, of course, is consistent with the Board's
objective of fostering mature bargaining relationships
There is yet another reason for not creating a financial
disparity exception to Collyer That is the difficulty which
would be encountered in formulating a standard for appli-
cation of such an exception Though the General Counsel
has advanced no formula for making that determination,
the argument in support of the contention that such an
exception should be created suggests a plethora of factors
which must be examined total assets of both parties, pro-
portion of assets available to each party for arbitration,
annual receipts, sources of receipts, ability to generate ad-
ditional receipts to pay for arbitration, expenditures made
annually, ability to defer expenditures so that money can
be made available for arbitration, numbers of grievances
arbitrated in the past (thereby taking into account the fre-
quency with which funds must be expended for arbitra-
tion), number of grievances which arise and the propor-
tion, with accompanying reasons which are not arbitrated,
types of grievances arbitrated (have funds, otherwise avail-
able, been spent in the past arbitrating grievances which
were frivolous or insignificant), efforts made to resolve dis-
putes prior to arbitration, including the dispute then pend-
ing before the Board, and examination of future prospects
(i e, does it appear likely that funds can be obtained in the
future to pay the cost of a current arbitration) Undoubted-
ly other factors would have to be considered in arriving at
a standard for deferral The point is that given the diversity
in nature and size of entities which appear before the
Board and in view of the fact that disparity exists between
3 The current contract was negotiated and agreed on well after the Board
decided Collyer Insulated Wire supra
parties involved in the preponderant number of cases
which the Board handles, the argument now advanced by
the General Counsel, if accepted, is one likely to be re-
newed in every case where the least degree of disparity
occurs, leading to creation of an exception so involved and
complex (given the number of factors which must be con-
sidered in determining whether or not to apply it) as to
relegate the basic Collyer doctrine to the status of preamble
to its exception Such a situation would hardly promote the
speedy resolution of disputes by expediting the processing
of cases before the Board nor would it foster the orderly
procedures sought in Section 1(b) of the Act
Therefore, I find that the Collyer doctrine is not suffi-
ciently broad to encompass the types of violations alleged
in the complaint I further find that, if that were not true,
then these matters would not be exempt from the Collyer
doctrine due to the financial situation of the Union, both
because it has not been established that the Union is with-
out the means to arbitrate the dispute and because there is
not and should not be any financial disparity exception to
the Collyer doctrine
V APPRENTICESHIP AGREEMENT
As stated above, during the negotiations for the current
agreement with various craft representatives, Respondent
agreed to accord an apprenticeship program to the Union
At the meeting at which Brown tendered the letter of un-
derstanding, setting forth this agreement, to Boognl, he
asked if Boognl were satisfied Before the latter could re-
spond, David Powers, representing Pipefitters Local 360,
interjected a question concerning the ratio and hiring of
apprentices under the Pipefitters already-existing appren-
ticeship agreement Brown replied "You've got your ap-
prenticeship, take your problems to the apprenticeship
committee, and deal with them " While acknowledging
that he had contemplated that the details of the apprentice-
ship agreement were to be "sorted out later" (although at
no point did he specify in what manner) and while admit-
ting that on another occasion he had told the union offi-
cials that they would have to deal with local representatives
concerning formulation of the terms of an apprenticeship
agreement, Brown testified that his statement at the meet-
ing had only been directed to Powers who had asked the
question, pointing out that apprenticeship committees ex-
isted only under existing apprenticeship agreements 4
Boognl, however, testified that he had construed Brown's
remark to apply to him as well, for, in his opinion, Brown
had appeared to be directing his remark to all officials rep-
resenting the various labor organizations
Then director of employee relations for the Montana
mining division, which encompasses Butte operations,
Robert D Vine had been in attendance at this meeting and
4 Vine testified that there was no general apprenticeship committee which
was responsible for negotiating apprenticeship agreements and that the only
apprenticeship committees were those which had been established under
existing apprenticeship agreements However Brown testified that
once the decision was made to grant an apprenticeship then my under
standing is that the apprenticeship committee of each side would negotiate
it
THE ANACONDA COMPANY 1049
after July 4, Boognl contacted Vine,5 telling him that the
Union's committee was ready to meet with Respondent's
committee to negotiate apprenticeship standards so that an
apprenticeship program could be submitted to the State of
Montana 6 The two men agreed to hold a meeting on July
20 There is no dispute concerning the testimony that noth-
ing had been said during this conversation concerning any
limitation upon Vine's ability to negotiate an apprentice-
ship agreement or regarding the need to have any agree-
ment negotiated be subjected to review by higher authority
before it became effective
On July 20, Boognl and Kamps met with Vine, then
chief engineer for the mining division, Samuel G Reyn-
olds, and then assistant chief engineer of maintenance and
construction, Joseph McCarthy Vine testified that he had
been the person who had requested Reynolds and McCar-
thy to attend this meeting and, further, that they had not
been designated by Vine's immediate superior, president of
the Montana division, Frank Moninger,' or by any other
person to act with him (Vine) as an apprenticeship commit-
tee 8 McCarthy, however, testified that it had been Reyn-
olds, then his own immediate superior, who had contacted
him regarding attendance at this meeting and Reynolds
testified that it had been Moninger who had ' asked
me to sit in with Bob Vine, and Joe McCarthy, and the
Union delegates, to see if we couldn't establish some sort
of an apprentice program "
The Union's witnesses testified that they had brought to
the meeting a copy of an apprenticeship program then in
effect at another employer's facilities and that following
submission of that document to Respondent' s officials as
the Union's proposed program, the parties reviewed and
discussed the application of that program to Respondent's
employees, making minor modifications to change the
wording of the agreement being used so that it applied to
Respondent Reynolds, who conceded that he had been
involved in "several meetings right at that time, and com-
ing out of negotiations, it's pretty difficult for me to say
" recalled that the Union's officials had brought a
document to the meeting, but did not "think that we stud-
ied it in any depth I think, probably, we just looked at it'
McCarthy, however, recalled that there had been a docu-
ment which the parties had discussed and Vine made no
reference to this apprenticeship program Each of the wit-
nesses who covered the point testified that it has been Mc-
Carthy who had proposed an eight-period program, total-
ing 4 years in length, and that McCarthy had written down
the locations for each of the eight 6-month periods, which
Kamps then copied into notes that he was keeping of the
meeting
5 Boognl testified and Vine agreed that Vine had been the proper person
for Boognl to have contacted regarding this matter since he was in charge
of yersonnel
Ail were aware that the existence of such a program was a condition
precedent to receipt of certain veterans benefits for members whom the
Union considered to be apprentices In addition it appears that the Union s
inability to obtain higher classification of its job grade structural ironwork
ers had been rebutted in large measure because of its lack of an apprentice
ship program
Also spelled in the transcript Monninger
s Thus asked if he had any knowledge whether or not Moninger had been
involved in selecting the committee Vine responded I have no knowl
edge
The significant point, so far as Respondent appears to be
concerned, involved the pay rates in the apprenticeship
agreement which the General Counsel asserts that Respon-
dent agreed on In that agreement , each progressive stage
of the eight-stage program bears a progressively higher pay
grade or level Boognl testified that the pay levels had been
discussed during the meeting, but was unable to recall
either at what point in the meeting the discussion had oc-
curred or the substances of what had been said Kamps
testified that as the meeting had drawn to a close, he had
mentioned a prior agreement to raise the few remaining
level 12 members to level 15, the structural ironworker rate,
so that all of the Union's members would be compensated
at that level In responding to this question, testified
Kamps, McCarthy had also added that, "We'd start at line
nine at this time" in connection with the apprentices
Kamps testified that he had not included this item in his
notes, because
The discussions pertaining to Line 12 pay grade, and
all, would come up at the very last of the meeting, and
I seen no point in actually jotting it down at that time,
because we went immediately down to Al's house, and
changed the thing to get it typed up to get it in for
approval
Vine testified only that no agreement on an apprentice-
ship program had been reached at this meeting, but he did
not specifically deny that the remark concerning payin
first-stage apprentices at line 9 level had been made
Reynolds testified that "to my knowledge" there had been
no discussion of "wage rates, the pay scales, the classifica-
tion implications of an apprenticeship program," adding
that "I certainly don't recall it " Yet, he also testified there
had been no outstanding disagreements, " that I can
recall," at the culmination of the meeting and he agreed to
the question that " your role in this matter was to use
your technical knowledge in reviewing documents and ad-
vising the committee, and that you weren't necessarily in-
terested in all the remaining parts of the conversation9"
McCarthy, to whom Kamps attributed the statement re-
garding the pay level for beginning apprentices, when
asked if he had discussed the rates for the apprentice
stages, responded only "Not to my recollection "
Several additional points regarding this meeting are wor-
thy of mention First, it is undisputed that no further meet-
ings had been scheduled Second, all agree that the three
officials of Respondent who would serve as its representa-
tives on the apprenticeship committee established under
the program had been selected during the course of the
July 20 meeting Finally, it is undisputed that no comments
were made by Respondent's representatives to the effect
that higher authority had to approve the agreement or that
the agreement had to be cleared with higher authority
Following the meeting, Kamps and Boognl went to the
latter's home where they wrote the changes to be made on
the apprenticeship agreement that they had brought to the
9 The significance of starting apprentices at level 9 is that as they progress
through the other seven stages of the program their pay level also pro
gresses with the result that at the eighth stage of the program the apprentice
would be compensated at level 16-one grade higher than Respondents
structural ironworkers the journeymen in the craft were then rated
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting and then submitted this document to Mrs Boognl
for her to prepare the final copy for submission to Respon-
dent Later, Boognl delivered three copies of the finalized
document to Vine Concerned with the benefits being de-
nied his members, Boognl attempted to telephone Vine on
the morning of July 29 to ascertain if the agreement was
satisfactory, but was told that Vine was going to the airport
for a flight to Tucson Boognl, accompanied by Director of
the Apprenticeship and Training Program Gene Vucko-
vich, drove to the airport, meeting Vine as the latter was
preparing to board his plane A brief discussion ensued,
during which Vine may or may not have said that he had
read the agreement previously delivered by Boognl How-
ever, while Vine denied saying that if Reynolds approved
the proposal, then there was agreement on its terms, the
testimony of the three participants to this conversation
shows that that was certainly the import of Vine's words to
Boognl and Vuckovich Thus, Boognl testified that Vine
had said `Well, why don't you contact Sam, and, if Sam
has read it and okay's it, we've got an agreement " Vucko-
vich testified that Vine had "informed Mr Boognl that if
he would contact Mr Reynolds and if Mr Reynolds also
was in agreement, then we had an agreement with regard
to the apprenticeship program " Vine testified "My
knowledge, of course this is just-to my memory, I said to
Al to the effect that is Sam doesn't have any objections to
it, I don't "
Boognl testified that he then had called Reynolds and,
when he had explained what Vine had said, that Reynolds
had promised to finish reading the agreement that night
and to contact Boognl the following day with an answer
Between 8 and 8 30 am on July 30, testified Boognl,
Reynolds had telephoned and "said he had taken the docu-
ment home, he had read it, it was fine, and go ahead and
submit it to the state " Reynolds, who appeared as
Respondent's witness, did not deny Boognl's testimony
As instructed by Reynolds, Boognl filed a copy of the
apprenticeship agreement with the appropriate state office,
but was later told by a state official that there was a prob-
lem concerning the agreement Thus, Boognl sought out
Vine who said that he had received a letter from Brown
expressing the desire to have Mr Williams of the job evalu-
ation program review the agreement Later, in 1975, still
unable to persuade Respondent to execute the agreement,
Boognl, in the presence of Carpenters Local 112 business
representative, James Cadigan, asked Brown about the
agreement and the latter, after referring to limitations on
the authority of negotiators for the labor organizations
with which Respondent maintained collective-bargaining
relations, said that Respondent's committee had not had
authority to institute such a program This testimony was
not denied by Brown nor did Respondent's officials deny
Boognl's testimony that there had never been any prior
statement of a limitation on the authority of Vine, Reyn-
olds, and McCarthy
In its brief, Respondent argues both that no agreement
had been reached for an apprenticeship program and, as-
suming that agreement had occurred, that Vine, Reynolds,
and McCarthy lacked the authority to bind Respondent to
the terms of such an agreement Contrary to Respondent's
first argument, I find that there was a meeting of the minds
between the officials of Respondent and the Union on July
30 Boognl and Kamps had submitted a complete proposal
at the beginning of the July 20 meeting While Reynolds
denied that much attention had been directed to this docu-
ment during that meeting, his denial was equivocal, being
based on his belief as to what had happened at the meet-
ing, and he admitted that he was having difficulty segregat-
ing the events of the July 20 meeting with the Union from
those which had occurred at other meetings which he had
attended "right at that time " By contrast, McCarthy ac-
knowledged that the parties had discussed the Union's pro
posal and Vine, Respondent's chief spokesman at the meet
ing, did not deny Boognl's testimony that the document
had been reviewed and discussed Accordingly, I find that
the parties did review the apprenticeship program which
the Union's officials had presented at the July 20 meeting
Similarly, I find that McCarthy did propose both the
eight-stage apprenticeship program and that the appren
tices entering that program commence at the level 9 grade
All who testified concerning the point agreed that the for-
mer had occurred and McCarthy did not deny proposing a
grade 9 entry level for the program In this regard, I find
that Kamps' explanation concerning his failure to include
the proposal regarding the entry level in his notes both
reasonable and consistent with the fact that he and Boognl
did prepare the finalized program immediately after the
meeting Although Reynolds testified about this matter of
the grade, his statement that "to my knowledge" these mat-
ters had not been covered does not qualify as an effective
denial and, indeed, in view of the limited role which he had
been assigned at the meeting, it may well be that it was not
his intent to deny that McCarthy had made such a state-
ment-he may merely have been inferring that he was mat
tentive to matters beyond the scope of his concern and had
not paid attention sufficiently to such matters to know
whether such a statement had been uttered Accordingly, I
find that at the July 20 meeting, it had been Respondent's
agent, McCarthy, who had proposed both an eight-stage
program and an entry level of line 9 I further find that the
Union agreed to these proposals
The Union was satisfied by the end of the July 20 meet-
ing that tentative agreement had been reached and so also
were Respondent's officials, for Reynolds admitted that
there were no outstanding disagreements Furthermore, no
efforts were made to arrange for another meeting to pursue
negotiations further Surely, given Boognl's desire to obtain
a finalized program which he could submit to the State,
further sessions would have been at least suggested had the
parties not been satisfied that they already had reached
agreement In fact, so thorough had the July 20 negotia-
tions been that the perfunctory matter of selecting the spe-
cific officials who would sit on the apprenticeship commit-
tee established by the agreement had been resolved
Moreover, despite his general denial that he had said that
the parties had an agreement if Reynolds concurred in the
agreement submitted by the Union, Vine's recitation of
what he had said to Boognl and Vuckovich at the airport,
as well as the two union officials' testimony as to what
Vine had said, demonstrate that final acceptance of the
agreement was contingent only upon Reynolds' approval-
approval which, it is undenied, was forthcoming on July 30
THE ANACONDA COMPANY
and which, as Vine's statement to Boognl in their subse-
quent conversation about Brown's desire to have Williams
review the agreement shows, was later withdrawn by
Brown
If there remained any doubt concerning the lack of merit
to Respondent's assertion that there had been no meeting
of the minds in July, it is dispelled by Respondent's admis-
sion during the investigation of Case 19-CA-7528 In the
charge, Boognl had detailed his version of the events
which, in his opinion, supported his conclusion that an
agreement had been reached
Mr Emil Kamps, Secretary-Treasurer and my-
self, Albert Boognl, Business Agent-President of Local
#81 met with Mr Robert Vine, Mr Joseph McCarthy
and Mr Sam Reynolds who said they represented the
Anaconda Company as the Apprentice Committee
We agreed to a set of standards and I was directed to
formulate these standards It was agreed to be a r-year
[sic] program of 8 periods After putting the standards
in a written form, I presented them to the Company
Committee
After reading the standards, I was informed by Mr
Vine and Mr Reynolds that we had an agreement At
a later date I was informed by Mr R L Brown that
we did not have an agreement based on the fact that
the three men on the Apprenticeship Committee did
not have the authority to make such an agreement
On February 25, 1975, Brown sent a letter to the Board's
investigator, replying to the charge and stating, inter aha
The facts stated in the Charge are essentially cor-
rect The reason for the employer's refusal to execute
the apprenticeship agreement is because the Company
committee exceeded its authority in indicating that a
binding agreement was reached when its approval by
higher management was necessary
I find that on July 30, Reynolds agreed to the terms of the
apprenticeship agreement which the Union had proffered
and as Vine, the spokesman for Respondent in these nego-
tiations, had said that final agreement was dependent upon
Reynolds' concurrence, there was on that date a meeting of
the minds Accordingly, without regard to subsequent
events, on July 30, there was a final and binding agreement
which Respondent has the legal obligation to execute, not-
withstanding the fact that it may have had second thoughts
concerning the substance of that agreement See Utility
Tree Service, Inc, 215 NLRB 806 (1974)
Respondent, however, contends that Vine, Reynolds,
and McCarthy had no authority to negotiate a final and
binding agreement without obtaining prior approval of
higher officials It is, of course, settled that there is nothing
inherently unlawful in deferring execution of a contract
until approval is granted by superior authorities The Stan
dard Oil Company (an Ohio Corporation), 137 NLRB 690,
691 (1962), Brotherhood of Painters, Decorators and Paper
hangers of America Local 850, AFL-CIO (Morgantown
Glass and Mirror Inc), 177 NLRB 155 (1969) However,
while Respondent points to testimony that it has no ap-
prenticeship committee, existing independently of appren-
ticeship agreements, to negotiate apprenticeship programs
1051
and to other testimony denying that there had been any
delegation, verbal or written, to these three officials of au-
thority to consummate agreement without prior approval
of higher authority, Respondent does not dispute the testi-
mony that at no point during the June negotiating sessions,
the July 20 meeting, or the other conversation in July did it
mention to the Union's officials that approval by higher
authority was required before a final agreement could be
consummated Nor does the evidence disclose facts suffi-
cient to establish that it should have been apparent to the
Union's officials that such approval had to be obtained
Absent such prior notification, a refusal to execute a con-
tract on that basis is unlawful Aptos Seascape Corporation
194 NLRB 540, 544 (1971), San Luis Obispo County, 196
NLRB 1082, 1084, fn 7, (1972), Tyler Bros Drayage, supra
at 506-507
Moreover, contrary to Respondent's protestation, it ap-
pears that authority had been delegated to these three offi-
cials to negotiate the apprenticeship agreement In the first
place, Respondent's defense in this regard bears a some-
what surrealistic tinge in that it portrays three experienced
officials as having arrogated to themselves exclusive au-
thority to act on Respondent's behalf by consummating an
agreement with the Union Further, though this conduct
has cost Respondent both money to defend this matter and
possibly considerable good will in its relationship with the
Union, so far as the record discloses no disciplinary action
has been taken against these three officials, who, under
Respondent's defense, engaged in misconduct Secondly,
while Respondent repeatedly pointed out that the union
officials' use of the term' apprenticeship committee" when
referring to the three company officials with whom they
met on July 20 was solely the Union's description of these
three officials and was not Respondent's designation of
them, since apprenticeship committees existed only under
already negotiated apprenticeship agreements, at one point
Brown admitted that once the decision to grant an appren-
ticeship program had been made, ` the apprenticeship
committee of each side would negotiate it ' Thus,
Respondent's argument in this area is merely an effort to
obfuscate the matter through the device of nomenclature
The fact is that Vine, Reynolds, and McCarthy did consti-
tute a committee designated to negotiate an apprenticeship
program
Third, Vine had attended the negotiating session in
which the letter of understanding had been tendered to
Boognl and, accordingly, Vine was obviously aware that a
program remained for negotiation While Brown's response
to Powers' query at the meeting could be construed as hav-
ing been directed exclusively to Powers, Brown acknowl
edged that he had told the Union, on another occasion,
that local officials would have to negotiate the terms of the
program Indeed, it appeared to me that Respondent, par-
ticularly Brown, had not considered negotiation of appren-
ticeship standards to be other than local in concern until
the relationship between the Union's apprenticeship stan-
dards and CWS became evident This, of course, was the
point which Vine had been making to Boognl during their
conversation occasioned by the State's notification to
Boognl of problems with the standards submitted Conse
quently, the record does tend to show that, at the time,
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent viewed negotiations for apprenticeship pro-
grams as local matters and vested its local negotiators with
authority commensurate with that view
Finally, there is the matter of the means followed in se-
lecting the officials who represented Respondent at the
July 20 meeting Consistent with the defense that local per-
sonnel had arrogated to themselves the right to represent
Respondent in these negotiations, Vine denied that the
committee that had met with the Union on July 20 had
been selected by higher authority, specifically Vine s im-
mediate superior, Frank Moninger However, this testimo-
ny was contradicted by the testimony of Reynolds to the
effect that it had been Moninger who had requested Reyn-
olds to participate as a member of Respondent's commit-
tee Surely it is not likely that Moninger would not have
advised Vine of Reynold's selection As Moninger was not
called as a witness , it is not possible to ascertain if authori-
ty higher than he was involved in this matter, i e , Brown
However, as it is not reasonable to assume that Vine,
Reynolds, and McCarthy arrogated to themselves authori-
ty to act for Respondent, without checking with higher au-
thority, neither is it reasonable to assume that Monmger
would do so In this regard, while Respondent attempts to
support its con*ention of lack of authority by pointing out
that its officials at the July 20 meeting were only officials
of the Montana mining division, while the agreement ex-
tended beyond that division and encompassed the met-
allurgical division, there is no evidence showing that offi-
cials of one division cannot represent and bind another
division by their conduct Moreover, it is noteworthy that
Arbiter Plant Manager William E Lohman admitted that
in March 1975, the Montana mining and metallurgical di-
visions merged into a single division, designated the Mon-
tana mining division Consequently, the distinction urged
by Respondent is one without seeming difference
Lest there be any doubt still existing regarding the au-
thority of the three officials who met with Respondent on
July 20, it is laid to rest by examination of Reynolds' reci-
tation of what he had been told by Moninger during the
course of the latter's request that Reynolds participate in
the negotiations Reynolds testified that Moninger had said
that he wanted the participants at the July 20 meeting to
"establish some sort of an apprentice program " Reynolds
made no reference to any qualifications by Moninger-no
mention of establishing merely a tentative program and no
mention of the need to obtain the consent of higher author-
ity prior to consummation of the agreement Surely, had
there been such qualifications, Moninger would have made
that clear to Reynolds That he did not do so, and that no
explanation has been advanced for his failure to do so,
creates a reasonable inference that no such qualification or
restriction on authority existed
The crux of this entire problem appears to lie with the
fact that the agreement reached provided for a wage rate at
level 16 for stage-eight apprentices, while Respondent had
been paying its structural ironworkers, the journeyman
grade, at only level 15 and had successfully resisted,
through arbitration, raising the grade of structural iron-
workers to level 16 This, argues Respondent, was clearly
not within any authority conferred on its committee mem
bers and, accordingly, their act of consenting to a level 16
grade was clearly ultra vires However, in ascertaining
whether parties have arrived at an agreement, the Board is
not "strictly bound by the technical rules of contract law "
Lozano Enterprises v N L R B, 327 F 2d 814, 818 (C A 9,
1964) It was Respondent who selected its negotiators, it
was Respondent who vested those negotiators with author-
ity to consummate an agreement with the Union, and, it
was Respondent who possessed copies of the final tentative
agreement for a significant period prior to July 30 when,
consistent with Vine's instruction to Boognl and Vucko-
vich, Reynolds' consent forged the final link in the chain of
formation of a final and binding agreement In these cir
cumstances, Respondent cannot complain because it has
suddenly decided that the terms of the agreement are not
satisfactory 10
This conclusion is not changed by the history of the
Union's unsuccessful efforts to obtain a level 16 grade for
structural ironworkers Respondent's success in resisting
such an increase appears to have been predicated largely
on the absence of an apprenticeship program for the
Union's members, thereby leaving the "Employment
Training and Experience" factor of the structural iron-
worker job classification at 31 to 36 months By proposing
an eight-stage program of 4 years, however, Respondent
was, in effect, providing for an experience factor of 42
months prior to entering the final stage of the apprentice-
ship program Thus, in return for the higher grade, a mem-
ber of the Union must satisfy the added "Training and
Experience" requirement and Respondent, in turn, receives
the benefit of a more rounded and intensively trained em-
ployee Consequently, there is consideration for the in-
creased grade Furthermore, only by satisfying this "Train-
ing and Experience" requirement can existing structural
ironworkers attain the level 16 rate and, accordingly,
Respondent's argument that implementation of the ap-
prenticeship program to which it agreed will require the
automatic increase in the grade of structural ironworkers is
not well founded Nor for that matter does it appear that
the increased grade will necessitate a readjustment of the
grades for other crafts, since all of these crafts currently
have apprenticeship programs and most of them already
have attained journeymen grades at level 16 In these cir-
cumstances, it is apparent that Respondent's argument that
it would have been illogical to have made an agreement for
level 16 rates for stage-eight apprentices is without force
Therefore, I find that Respondent consummated an ap-
prenticeship agreement with the Union and that, by there-
after failing and refusing to execute and implement that
agreement, Respondent has violated Section 8(a)(5) and (1)
of the Act
VI APPLICATION OF THE COLLECTIVE-BARGAINING AGREEMENT TO
THE ARBITER PLANT
The area of dispute in connection with this allegation is
quite narrow Thus, the parties have either agreed specifi-
10 Respondent has not raised the defense of Mistake and accordingly
that issue has not been litigated In any event a mistake of only one party
does not render a transaction voidable Restatement Contracts §503
(Comment a)
THE ANACONDA COMPANY
cally to or the evidence presented was not controverted in
connection with the following matters Respondent has
historically recognized and bargained with a number of
crafts, including the Union , as the representatives of em-
ployees in an overall unit encompassing facilities at Great
Falls, Butte , and Anaconda , Montana , during the June ne-
gotiations , the parties agreed to include Respondent's
soon-to-be-opened prototype Arbiter plant in the unit, but
also agreed that Arbiter would be "a separate location for
all purposes under the labor agreement and is not a depart-
ment of The Anaconda Reduction Works", the unit so
formed by the June agreement is appropriate , construction
at Arbiter neared completion in September at which point
Respondent commenced operations with approximately 10
employees , gradually expanding operations to the point
where approximately 160 employees were working there
when the decision to temporarily suspend operations, in
July 1975, was reached, no members of the Union were
ever employed at the Arbiter facility during the approxi-
mately 10 months that it was operated , notwithstanding the
fact that members of other crafts employed by Respondent
and employees of General Contractors working under sub-
contract 11 performed at least some degree of work that the
Union's members at Butte and other Anaconda facilities
performed , but which were performed by members of other
crafts at Great Falls where no ironworkers have been regu-
larly employed since 1918, that the assignment of work at
newly opened facilities is a matter for local management to
determine , and that the Union's geographic jurisdiction
encompasses only the Butte and Anaconda facilities of Re-
spondent , but does not extend to the Great Falls area
The General Counsel contends that in failing to have
assigned work to any members of the Union at Arbiter
during the 10-month period of operations at that location,
Respondent has evidenced an intent to ignore its agree-
ment to encompass Arbiter within the collective-bargain-
ing unit so far as the Union is concerned While not deny-
ing that it has, in effect and in intent, withdrawn
recognition from the Union at Arbiter, Respondent has
consistently maintained , in grievance meetings , in corre-
spondence , and in the hearing in the instant matter, that it
has the right to assign the work in the manner which it has
chosen Thus , in a letter to Boognl dated January 2, 1975,
Arbiter Personnel Director Anthony E Juntunen stated
At the Arbiter Plant we fully accept the jurisdiction
of the Ironworkers Local #81 , under the provisions of
the agreement reached in 1974 between the Anaconda
Company and the unions representing its employees
As an individual plant , separate and distinct, we do
not accept practice from any one of several other com-
pany locations especially so where such practices are
varied and inconsistent In this respect it is the
Company's position that where a work assignment is
Considerable testimony was elicited regarding the subcontracting of
work at Arbiter However there is no allegation that Respondent has violat
ed the Act with respect to the manner in which it has subcontracted work at
that location Accordingly I am considering this evidence only insofar as it
pertains to the allegations in the complaint and am not considering whether
it would independently establish a violation of the Act Medicine Bow Coal
Company 217 NLRB 931 fn 2 (1975)
1053
common to all plants bound by the same contract then
the assignment is made because of jurisdiction Where
work assignments vary from plant to plant then such
assignments are made because of local practices
We agree that the new installation of structural iron
falls under the jurisdiction of your union Since we
will only do a limited amount of new construction at
this time our intent is to contract this work out
Consistent with that asserted position , Brown testified that
The decision was made to, because it was to be a sepa-
rate plant and a separate entity, to establish its own
work practices rather than adopt wholesale practices
from any other locations
*
We felt that if we had work that would require Iron-
worker skills that contrasted with practices that are
developed that they had gotten in other places that
then, yes, Ironworkers would be employed But, for
instance , we didn't feel that the matter of an Iron-
worker doing layout work for a boilermaker , for ex-
ample , was a jurisdictional matter, but rather a prac-
tice that had been developed in some locations and
not others, and that was the type thing that we didn't
see any sense in carrying over to a new operation
Consequently, notwithstanding the plethora of testimo-
ny in connection with this matter , the issue boils down to
Respondent 's right to unilaterally allocate the Union's
work at Arbiter Were this simply a dispute over the alloca-
tion of particular types of work among crafts , without
more , I would not hesitate to recommend that the allega-
tion be dismissed, since it is acknowledged that work as-
signments at Respondent's Montana facilities have been
governed by initial assignments made at the discretion of
local management However , there are a series of factors
which, collectively, support the General Counsel' s allega-
tion that Respondent' s assignments have been made in a
manner designed to preclude the Union from representing
any employees at Arbiter, notwithstanding its prior agree-
ment to extend the representation rights of the Union to
the Arbiter facility Thus, the matter is a degree removed
from a simple dispute over the allocation of work assign-
ments among crafts, transcending to the level of repudia-
tion of a prior recognition agreement
First, the most obvious factor is that during 10 months
of operations, with an employee- complement reaching 160
in number, Respondent not once assigned any work to any
employee represented by the Union
Second , at no point during the negotiations did Brown
or any other official of Respondent, so far as the record
discloses , indicate in any fashion that Respondent intend-
ed to make the assignments at Arbiter by employing crite-
ria that would preclude the Union, or any other craft, from
representing employees at that site There was simply no
notice regarding the formulation of a new criterion for as-
signing work, such as that described by Juntunen in his
January 2, 1975, letter, nor that the impact of such criteri-
on might result in a significant impact on representation
rights of crafts involved
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Third, the criterion advanced by Respondent was never
clearly defined during the hearing, either with regard to
what it meant or with respect to the manner of implemen-
tation Thus, Brown testified that Respondent differentiat-
ed "jurisdiction" and "past practice," but at no point did
he explain the manner in which the former was ascertained
and implemented in assigning work at Arbiter
Q Now, jurisdiction, as I understand- let me ask
you, jurisdiction is where in all of the facilities of The
Anaconda Company the work assignment is the same,
that would make it a jurisdictional basis'
A Well, it's kind of nebulous, like you consider
machinists either working on lathes or working on en-
gines, electricians installing wires and things like this,
so this is kind of, I guess-carpenters sawing boards
and erecting buildings, pipefitters putting pipes to-
gether and making plumbing installations, things like
this This is what I at least think of when I think of
jurisdiction
Having listened to the testimony of Respondent' s witnesses
and having reviewed it in the transcript, I find it singularly
significant that at no point was an explanation advanced
with sufficient clarity and certainty to warrant the conclu-
sion that this was a matter which had been analyzed by
Respondent and thought through to the point where a defi-
nite, clearly formulated criterion had been developed In-
stead, it appeared to me at the hearing that Respondent's
witnesses , particularly Brown, were merely attempting to
supply a criterion that sounded convincing in an effort to
ward off further questions designed to scrutinize the sub-
stance of the assignments at Arbiter
Fourth, in point of fact, "jurisdiction" appears to have
been defined by Respondent, so far as the Union's mem
bers are concerned, by the situation at the Great Falls refi-
nery At first blush, it appears to have been Respondent's
position that it was resorting to practice at that refinery as
its pattern for allocating work at Arbiter Yet, closer analy-
sis of the testimony discloses that that is an inaccurate im-
pression At no point has Respondent asserted that the
Union's work assignments at Arbiter will be governed by
the practice at Great Falls, i e , by assigning the work to
another craft Moreover, at no point has it been contended
by Respondent, or shown, that work assignments during
the 10 months of operations at Arbiter were based upon
those made at Great Falls, either with regard to the
Union's nonassignment of work or with respect to general
work assignments involving other crafts Similarly, there is
no contention that Great Falls assignments will be the pat-
tern for assignments once operations at Arbiter resume
Rather, Respondent has referred to Great Falls only to
defend its nonassignment of work at Arbiter to the Union's
members This was admitted by Brown who, after denying
that Great Falls assignments were determinative in making
assignments at Arbiter, then went on to testify "If-when
Mr Boognl makes a claim and he says, this is our work, as
a matter of God given right, I merely point out that they
don t have it in Great Falls, that's all " Thus, analysis is
thrown back to the "nebulous" concept of `jurisdiction in
examining assignments made at Arbiter-that is, to an am-
biguous situation in which no meaningful determination
can be made as to the criterion used to preclude the
Union's members from work assignments at Arbiter
Fifth, it does not really make sense to have assigned
work at Arbiter based on assignments at Great Falls nor
will the latter serve to justify the former So far as the
record discloses, resort to Great Falls assignments in rela-
tion to assignments at Butte and Anaconda facilities is un-
precedented Great Falls is more than 150 miles from Butte
and Anaconda, with the latter two cities being less than 30
miles apart The geographic jurisdiction of the Union does
not extend to the Great Falls area It has been almost 60
years since any ironworkers' representation has existed at
Great Falls and there is no evidence that assignments at
that location have even been raised during negotiations
and discussions between Respondent and the Union In
these circumstances, to suddenly refer to Great Falls in
connection with staffing at Arbiter is, itself, a suspicious
circumstance
Sixth, that suspicion is only compounded by the fact
that, so far as the record discloses, only the Union has been
deprived of work under Respondent's concept of "jurisdic-
tion " There is no evidence that that concept has adversely
affected the work of the members of any other craft or that
staffing at Great Falls influenced assignments of work to
other crafts at Arbiter, except to the extent that assign-
ments involved work which the Union's members had been
performing in the area
Seventh, Respondent has demonstrated on at least one
occasion that it is not reluctant to play fast and loose with
unit work at Arbiter Thus, on May 20, 1975, Respondent
notified the various crafts by letter of a desire to discuss "a
massive improvement program which will improve working
conditions for our employees, and improve the functioning
of the plant to assure its success " The crafts were invited
to arrange a discussion of the matter which, it is stated in
the letter, would involve the subcontracting of work Yet,
on the very next day, Respondent notified General Con-
tractors, in writing, of the work which it wanted that firm
to perform in connection with the improvement program
"You may therefore accept this as a letter of intent to let
the construction contract with your firm subject to the fol-
lowing qualifications " Quite clearly, the crafts had not
even yet had an opportunity to receive the letters mailed to
them by Respondent at the time that General Contractors
was notified of its selection for the performance of this
work which Respondent purportedly wished to discuss
with the crafts
Finally, at no point did Respondent justify its assign-
ments of work at Arbiter, more specifically, at no point did
it advance an explanation for precluding work assignments
to the Union's members in favor of assigning the work to
members of other crafts or to those employed by General
Contractors under subcontracts However, there was a con-
versation between Pipefitters 360 Business Manager David
Powers and Brown Powers testified that the conversation
had occurred in October and that, when the subject of lack
of assignment of work to the Union's members had arisen,
Brown had retorted "It'll be a `cold day in hell' before Al
[Boognl] gets into the Arbiter Plant We're going strictly by
jurisdiction in the Great Falls area " This, of course, con
tradicts Brown's testimony that he had referred to Great
THE ANACONDA COMPANY
Falls only in his dispute with Boognl While he denied ever
having told Powers that the Union would "never" get into
the Arbiter plant and testified that he had never used the
phrase "it'll be a cold [day] in hell when they get in,"
Brown admitted having discussed the matter of nonassign-
ment of union members to Arbiter with Powers, although
he placed the conversation in January 1975, and testified
what I said was that the type of work that the
Ironworkers were claiming was work they had ac-
quired as a result of practice, like rigging and things of
this kind, and that we saw no need for Ironworkers
doing the type of work they were claiming in the plant,
and I said that we were going under jurisdiction, and
that in my view, since the Ironworkers could not do
that type of work in the Great Falls plant, they didn't
have a jurisdictional claim to do that work in the Arbi-
ter Plant
I credit Powers' version of this conversation First, it close-
ly parallels Brown's version in that the reference to Great
Falls is, in effect, a statement of nonassignment of work to
the Union's members since there are no ironworkers at
Great Falls Second, the conversation occurred, be it in
October or January 1975, at a time when the Union and
Respondent were involved in a quite serious dispute con-
cerning the apprenticeship agreement which, as shown
above, concerned Respondent mightily due to the grade
levels which its negotiators had agreed to include Finally,
Powers impressed me as an honest and straightforward in-
dividual, whereas throughout this matter, Respondent has
attempted to avoid and evade responsibility for its con-
duct, as shown most clearly by its denial that there had
been a meeting of the minds on an apprenticeship agree-
ment when, in fact, it had earlier admitted, in a letter to the
Board, that agreement had been achieved
Therefore, I conclude that, notwithstanding its agree-
ment to extend recognition to all crafts, including the
Union, at Arbiter, Respondent subsequently changed its
method for assigning work at that location so that the
Union would be precluded from representing employees at
Arbiter and that its explanations regarding a change in
criterion and practice at the Great Falls refinery were ad-
vanced in an effort to justify the basic decision to, in effect,
withdraw recognition from the Union as the bargaining
representative of employees at Arbiter Accordingly, I find
that Respondent has violated Section 8(a)(5) and (1) of the
Act by failing and refusing to honor and abide by the
terms and conditions of its collective bargaining agreement
with the Union in refusing to apply the terms and condi-
tions of that agreement to its Arbiter plant
VII THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth above, occurring
in connection with the Respondent's operations described
in section I, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the sev-
eral States, and tend to lead, and have led, to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce
CONCLUSIONS OF LAW
1055
1 Respondent is an employer within the meaning of
Section 2(2) of the Act, engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
2 The Union is a labor organization within the meaning
of Section 2(5) of the Act
3 A unit appropriate for collective bargaining consists
of all ironworker employees employed by the Anaconda
Company at its mine, mill, smelting, and refining locations
in the State of Montana, including the Arbiter plant at
Anaconda, Montana
4 At all times material, the Union has been the exclu-
sive collective-bargaining representative of the employees
in the above-described unit within the meaning of Section
9(a) of the Act
5 By failing and refusing to execute and implement a
written contract embodying an agreement reached with the
Union on the terms and conditions of an apprenticeship
program for the employees in the above-described unit, I
find that Respondent has violated Section 8(a)(5) and (1)
of the Act
6 By failing and refusing to honor and abide by the
terms and conditions of its collective-bargaining agreement
with the Union in refusing to assign work to the Union's
members at its Arbiter plant, thereby effecting a partial
withdrawal of recognition of the Union, I find that Re-
spondent has violated Section 8(a)(5) and (1) of the Act
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and that it take certain affirma-
tive action to effectuate the policies of the Act
Having found that Respondent has failed and refused to
execute and implement a written contract embodying an
agreement reached with the Union on the terms and condi-
tions of an apprenticeship program, I shall recommend
that Respondent be required, upon the request of the
Union, to execute said contract and put its provisions into
effect as provided therein I shall also recommend that Re-
spondent reimburse the employees represented by the
Union, with interest at the rate of 6 percent per annum
thereon, for the loss of any benefits which would have ac
crued to them under that agreement which Respondent has
refused to sign
Having found that Respondent has failed and refused to
honor and abide by the terms and conditions of its collec-
tive bargaining agreement with the Union by refusing to
assign work to the Union's members at its Arbiter plant,
thereby effecting a partial withdrawal of recognition of the
Union, I shall recommend that Respondent reimburse em-
ployees represented by the Union for the loss of any bene
fits which would have accrued to them under the collec-
tive-bargaining agreement which Respondent has refused
to honor, with interest to be paid at the rate of 6 percent
per annum thereon This remedy is to apply for any period
of time in the future that Respondent reopens the Arbiter
facility and continues to fail and refuse to assign work to
the Union's members at that location, where Respondent's
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purpose is a continuation of its objective of precluding the
Union from representing employees at Arbiter
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed
ORDER 12
Respondent, The Anaconda Company, Anaconda,
Montana, its officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Failing and refusing to execute and implement a
written contract embodying an agreement reached with
Local No 81, International Association of Bridge, Structu-
ral and Ornamental Ironworkers, AFL-CIO, on the terms
and conditions of an apprenticeship program for the em-
ployees in the appropriate unit of
All ironworker employees employed by The Anacon-
da Company at its mine, mill, smelting and refining
locations in the State of Montana, including the Arbi-
ter Plant at Anaconda, Montana
(b) Failing and refusing to honor and abide by the terms
and conditions of its collective-bargaining agreement with
Local No 81, International Association of Bridge, Struc-
tural and Ornamental Ironworkers, AFL-CIO, in refusing
to assign work at its Arbiter plant to members of that labor
organization, thereby effecting a partial withdrawal of rec-
ognition of the Union
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of any right
guaranteed them by Section 7 of the Act
2 Take the following affirmative action which is neces-
sary to effectuate the purposes of the Act
(a) Upon request by Local No 81, International Associ-
ation of Bridge, Structural and Ornamental Ironworkers,
AFL-CIO, forthwith execute a written contract embodying
12 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings
conclusions and recommended Order herein shall as provided in Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings conclusions and Order and all objections thereto shall be
deemed waived for all purposes
the agreement reached on July 30, 1974, on the terms and
conditions of an apprenticeship program for all employees
in the aforesaid appropriate bargaining unit, and put into
effect its provisions
(b) Honor the collective-bargaming agreement in effect
with Local No 81, International Association of Bridge,
Structural and Ornamental Ironworkers, AFL-CIO, for all
locations and all employees in the aforesaid appropriate
bargaining unit in making work assignments
(c) Make whole all employees in the aforesaid appropri-
ate bargaining unit for any losses of benefits which would
have accrued to them under the agreement reached on July
30, 1974, on the terms and conditions of an apprenticeship
program, and for any loss of benefits which would have
accrued to them because Respondent has failed and re-
fused to assign work at its Arbiter plant to employees rep-
resented by Local No 81, International Association of
Bridge, Structural and Ornamental Ironworkers, AFL-
CIO, with interest to be paid at the rate of 6 percent per
annum thereon
(d) Preserve and, upon request, make available to the
Board or its agents all payroll and other records necessary
to compute the backpay rights as set forth in the, section of
this Decision entitled, "The Remedy "
(e) Post at all locations in Montana to which the collec-
tive-bargaining agreement with Local No 81, International
Association of Bridge, Structural and Ornamental Iron-
workers, AFL-CIO, applies copies of the attached notice
marked "Appendix " 3 Copies of said notice, on forms
provided by the Regional Director for Region 19, after
being duly signed by Respondents authorized representa-
tive, shall be posted by Respondent immediately upon re-
ceipt thereof and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted Rea-
sonable steps shall be taken by Respondent to ensure that
said notices are not altered, defaced, or covered by any
other material
(f) Notify the Regional Director for Region 19, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith
13 In the event that the Board s Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading Posted by
Order of the National Labor Relations Board shall read Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board