Tri-Clover, Inc.

National Labor Relations Board - Board Decisions

Nov 20, 2001

336 N.L.R.B. 1048 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1048
Tri-Clover, Inc. and International Federation of Pro-
fessional & Technical Engineers, Local 92.
Cases 30–CA–15004, 30–CA–15036, and 30–CA–
15091
November 20, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND WALSH
On August 31, 2000, the Regional Director for Region
30 issued an order consolidating cases, a consolidated
complaint, and a notice of hearing in this proceeding
alleging that the Respondent committed unfair labor
practices in violation of Section 8(a)(1), (3), and (5) of
the Act. The Respondent filed an answer admitting in
part and denying in part the allegations of the complaint
and asserting affirmative defenses.
On November 22, 2000, the Respondent filed with the
Board a motion to dismiss the consolidated complaint,
arguing that the Board should defer the matter to the con-
tractual grievance-arbitration process. On December 7,
2000, the Board issued an order transferring the proceed-
ing to the Board and Notice to Show Cause why the mo-
tion should not be granted. The General Counsel filed an
opposition and brief to the Respondent’s motion. The
Charging Party also filed an opposition to the Respon-
dent’s motion. The Respondent thereafter filed a reply
brief, and the General Counsel filed a response.
For the reasons set forth below, we grant the Respon-
dent’s motion to dismiss.
The complaint alleges that the Respondent violated
Section 8(a)(3) and (1) of the Act by giving verbal disci-
plinary warnings to, and ultimately laying off, employee
Steve Kurta for engaging in protected concerted activi-
ties. The complaint also alleges that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by unilaterally
transferring at least two unit positions outside the unit,
eliminating at least three unit positions and laying off the
employees holding those positions, and subcontracting
unit work to a laid-off employee.
The undisputed statements in the pleadings and briefs
reveal that the Respondent, a manufacturer of pumps and
valves, has had a collective-bargaining relationship with
the Charging Party Union since the 1970s. Their most
recent collective-bargaining agreement, covering techni-
cal employees at its plant in Kenosha, was effective from
October 1, 1998, through October 4, 2001. In late 1999,
the unit consisted of approximately eight employees.
From December 1999 through April 2000, the Union
filed four grievances over the discipline and layoff of
Kurta and the unilateral changes mentioned above. All
are currently pending at various stages in the grievance
process. The Union subsequently filed unfair labor prac-
tice charges with the Board for each of the underlying
grievances.
The parties’ collective-bargaining agreement provides
in pertinent part:

23(d) The decision of the arbitrator shall be final
and binding upon the parties thereto and the arbitra-
tor’s fees shall be borne equally by the parties. The
arbitrator shall be limited by the terms of the con-
tract and shall have no power to add to the terms or
to modify or amend such terms.
23(e) It shall be the intention of the parties to set-
tle all differences between the employer and the Un-
ion through grievance machinery and arbitration in
accordance with the provisions of this agreement.
Therefore, the employer agrees that it will not lock
out its employees and the Union agrees that it will
not sanction, authorize or condone a strike, slow-
down or work stoppage during the life of this
agreement.
23(f) In the event that the party that the arbitrator
rules against does not fully implement the decision
of the arbitrator within thirty (30) days of receipt,
Paragraph 23(e) will become null and void (lockout,
strike, etc.) except when either party litigates such
decision of the arbitrator on the basis of violation of
Section above.

The Respondent contends that the unfair labor practice
allegations should be deferred to the grievance-
arbitration procedure of the contract. The General Coun-
sel contends, however, that the matter is not appropriate
for deferral under the contract, because the contractual
grievance procedure is not final and binding in view of
the provisions reserving to the parties the right to strike
or lockout if the other party does not implement the arbi-
tral award within 30 days.1 We agree with the Respon-
dent that the strike and lockout provisions notwithstand-
ing, the arbitration procedure provided under the collec-
tive-bargaining agreement is final and binding.
The Board has considerable discretion to defer to the
arbitration process when doing so will serve the funda-
mental aims of the Act. See Dubo Mfg. Corp., 142
NLRB 431 (1963), Collyer Insulated Wire, 192 NLRB
837 (1971), and United Technologies Corp., 268 NLRB
557 (1984). However, the Board will only defer to an
arbitration procedure, which is final and binding.
Paragraph 23(d) of the parties’ collective-bargaining
agreement explicitly states that the decision of the arbi-

1 The General Counsel does not dispute the Respondent’s contention
that in all other aspects, the case is appropriate for deferral.
336 NLRB No. 110
TRI-CLOVER, INC. 1049
trator shall be “final and binding.” This clear language is
not rendered inoperative, as the General Counsel sug-
gests, by the language in paragraph 23(f) allowing the
prevailing party to strike or lockout in the event of the
other party’s noncompliance with the arbitration deci-
sion. Paragraph 23(f) merely reinforces the finality of the
arbitration procedure by adding another means of enforc-
ing compliance, if necessary. Of course, judicial en-
forcement of the arbitration award remains a viable and,
in fact, the preferred remedy. See Malrite of Wisconsin,
Inc., 198 NLRB 241, 242 (1972), remanded on other
grounds sub nom. Electrical Workers Local 715 v.
NLRB, 494 F.2d 1136 (D.C. Cir. 1974). Nothing in the
contract suggests that an arbitral award involving these
parties would not be enforceable in court.
Further, noncompliance with an arbitral award under
the contract would also violate Wisconsin State statutory
provisions prohibiting the violation of the terms of a col-
lective-bargaining agreement and the refusal to accept
the final determination of a tribunal having jurisdiction
over a matter. See Wis. Stat. § 111.06; see also T & J
Komp Electric, WERC Decision No. 26660–A (March
26, 1991). These provisions add support to our finding
that the parties’ contractual arbitration procedure is final
and binding.
Accordingly, for all these reasons, we find that deferral
of the matters alleged in the complaint pursuant to Col-
lyer and United Technologies is appropriate in this in-
stance.2 Therefore, we shall grant the Respondent’s mo-
tion to dismiss the complaint.
ORDER
IT IS ORDERED that the complaint is dismissed, pro-
vided that: the Board retains jurisdiction of this proceed-
ing for the limited purpose of entertaining an appropriate
and timely motion for further consideration upon a
proper showing that either (a) the dispute has not, with
reasonable promptness after the issuance of this Order,
either been resolved by amicable settlement in the griev-
ance procedure or submitted promptly to arbitration, or
(b) the grievance or arbitration procedures have not been
fair and regular or have reached a result that is repugnant
to the Act.

2 We agree with the parties that in all other respects, the matter is
appropriate for deferral.