International Brotherhood Of Electrical Workers, Local Union No. 194

National Labor Relations Board - Board Decisions

Aug 18, 1987

285 N.L.R.B. 328 (N.L.R.B. 1987)

328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Electrical Workers,
Local Union No . 194 and Cahn Electric Co.,
Inc. Case 15-CB-3233
18 August 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
STEPHENS AND CRACRAFT
On 31 March 1987 Administrative Law Judge
Howard I. Grossman issued the attached decision.
The General Counsel filed limited exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions' and has decided
to affirm the judge's rulings, findings, and conclu-
sions2 and to adopt the recommended Order.
WE WILL NOT in any like or related manner vio-
late our obligation to bargain in good faith with
Cahn Electric Co., Inc.
WE WILL notify the Council on Industrial Rela-
tions in writing that we are withdrawing our sub-
mission of a dispute with Cahn Electric Co., Inc.
and WE WILL send a copy of this notification to
Cahn Electric Co., Inc.
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL
UNION No. 194
Clement J. Kennington, Esq., for the General Counsel.
James Madison Woods, Esq., Shreveport, Louisiana, for
the Respondent.
Frederick Gover, Esq. (Canterbury, Stuber, Elder &
Gooch), of Dallas, Texas, for the Charging Party.
DECISION
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, International
Brotherhood of Electrical Workers, Local Union
No. 194, Shreveport, Louisiana, its officers, agents,
and representatives, shall take the action set forth
in the Order, except that the attached notice is sub-
stituted for that of the administrative law judge.
' The General Counsel's sole exception was to the apparently inadvert-
ent use of the word "mandatory" rather than "nonniandatory" in the first
paragraph of the judge's "Notice to Members." We have substituted the
attached notice, conforming the language to the judge's corresponding
cease-and-desist provision in his recommended Order.
2 No exceptions were filed with regard to the substantive legal issues
involved in this case
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT insist to impasse that Cahn Elec-
tric Co., Inc. or any other employer agree to inter-
est arbitration or any other nonmandatory subject
of bargaining.
WE WILL NOT continue to submit to the Council
on Industrial Relations our negotiation dispute with
Cahn Electric Co., Inc.
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge.
The charge was filed on 8 August 1986 by Cahn Electric
Co., Inc. (Cahn), and complaint issued on 10 September
1986. As amended at the hearing, it alleges that Interna-
tional Brotherhood of Electrical Workers, Local Union
No. 194 (Respondent or the Union) restrained and co-
erced Cahn in the selection of its employer representa-
tives (1) by notifying Cahn that it intended to submit un-
resolved contractual issues to binding interest arbitration
before a third party, the Council on Industrial Relations
for the Electrical Construction Industry of the United
States and Canada (CIR); (2) by submitting the issues to
CIR notwithstanding the fact that Cahn had not agreed
to such submission and had objected to it; (3) by failing
to withdraw the submission; and (4) by oral presentation
of unresolved issues to the CIR resulting in an order
from CIR to the parties to resume negotiations and
submit unresolved contractual issues to the CIR thereaf-
ter-all in violation of Section 8(b)(1)(B) of the National
Labor Relations Act (the Act).
Further, the complaint alleges, by such conduct the
Respondent insisted to impasse on interest arbitration, a
nonmandatory subject of bargaining, and thereby violat-
ed Section 8(b)(3) of the Act.
A hearing was held before me on these matters in
Shreveport, Louisiana, on 23 October 1986. No testimo-
ny was adduced, but documentary evidence was submit-
ted and oral arguments were made. Thereafter, briefs
were submitted by the General Counsel, the Respondent,
and the Charging Party. On the entire record, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Cahn is a Louisiana corporation with its principal
office and place of business located in Shreveport, Lou-
isiana, where it is engaged in the electrical contracting
285 NLRB No. 58
ELECTRICAL WORKERS IBEW LOCAL 194 (CAHN ELECTRIC)
business. During the 12-month period preceding issuance
of the complaint, a representative period, Cahn pur-
chased and received goods and materials valued in excess
of $50,000 directly from suppliers located within the
State of Louisiana who in turn received same directly
from sources located outside the State of Louisiana. The
pleadings establish, and I find, that Cahn is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The pleadings establish, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Factual Summary
For about 40 years prior to 24 April 1984, Cahn en-
gaged in collective bargaining through its agent, North
Louisiana Chapter, Inc., National Electrical Contractors
Association (NECA). By letter dated 24 April 1984,
Cahn revoked NECA's authority to bargain on its behalf
with the Union, notified the Union of the revocation,
and informed the latter that Cahn intended to negotiate
only on an individual basis and not as a member of the
multiemployer association.' Thereafter, Cahn and the
Union engaged in nine collective-bargaining sessions
from August through December 1984.
While this individual bargaining was in process,
NECA entered into an agreement with the Union (the
1984-1985 agreement), beginning 10 October 1984, and
continuing thereafter from year to year unless changed
or terminated in the manner provided in the contract.
The agreement states that it applies "to all firms who
sign a letter of assent to be bound by" the agreement.
The contract also requires that any termination or
change be preceded by written notice from the party de-
siring the change or termination to the other party at
least 90 days preceding 9 October of any year beginning
in 1985
Article I of the agreement further provides that, in the
event of a "question in dispute" that cannot be adjusted
by the parties, "any matter," including, e.g., the terms of
a renewal of the agreement, shall then be referred to a
Joint Conference Committee composed of management
and union representatives. In the event this committee
cannot adjust the matter, it shall be referred to the Coun-
cil on Industrial Relations for the Electrical Construction
Industry of the United States and Canada (CIR), whose
decisions shall be final and binding. The CIR is an inter-
est arbitration body composed of equal numbers of repre-
sentatives of NECA and the International Brotherhood
of Electrical Workers (IBEW).2 The parties stipulated
that the 1984-1985 agreement authorizes the CIR to
impose a collective-bargaining agreement on parties who
fail to reach agreement.
The CIR rules provide that "its local labor agreements
are all multiemployer agreements," and that it will adju-
I Jt Exh 1
2 It Exh 23, p 12
329
dicate cases submitted by a local union and a NECA
chapter, or other multiemployer bargaining agent How-
ever, the CIR may elect to accept a case involving an
individual employer and a local IBEW union "upon re-
ceipt of a written stipulation . . . ."3 Respondent's coun-
sel contended at the hearing and in his posthearing brief
that the CIR rules are binding on the parties to the col-
lective-bargaining agreement "through implicit incorpo-
ration "
After about 4 months of individual bargaining, on 3
December 1984, Cahn reappointed NECA as its collec-
tive-bargaining agent in the following Letter of Assent-
A:
In signing this letter of assent, the undersigned
firm does hereby authorize (NECA) as its collective
bargaining representative for all matters contained
in or pertaining to the current approved inside labor
agreement between (NECA) and (the Union) This
authorization, in compliance with the current ap-
proved labor agreement, shall become effective on
the 10th day of October 1984 It shall remain in
effect until terminated by the undersigned employer
giving written notice to (NECA) and to the Local
Union at least one hundred fifty (150) days prior to
the then current anniversary date of the aforemen-
tioned approved labor agreement . . . .4
On 25 April 1985, Cahn wrote NECA as follows, with
a copy to the Union.
This is to advise you that Cahn . . . hereby ter-
minates its Letter of Assent-A given to you to act
as Cahn's collective bargaining representative with
the IBEW, Local Union No. 194
We hereby advise that this termination shall be
construed as a revocation of your authority to bar-
gain on behalf of Cahn . in any manner with
(the Union), either by way of modifications, renew-
als, extensions, termination, and/or renegotiation of
the current collective bargaining contract . .
By copy of this letter to the Union, we hereby
direct that all correspondence and contacts relating
to the termination, renegotiation and/or extension
of the collective bargaining contract be,made with
the undersigned solely as it pertains to Cahn .
and not to or through (NECA) Such Association
does not have the authority any longer to negotiate
or make agreements on behalf of Cahn . . . Cahn
will hereafter negotiate with the Union on an indi-
vidual basis only and not as a member of the multi-
employer association . . . 5
The Union replied with a letter acknowledging receipt
of Cahn's desire to "negotiate individually," and stated
that "all sections of the agreement would be subject to
bargaining."s
' it Exh 23, p 3
4 it Exh 2 The document is a preprinted form marked "IBEW Form
302," and is filled in and signed by Cahn and the Union
5 it Exh 4
6 it Exh 5
330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On 25 June 1985 Cahn sent the following notice to the
Union:
In accordance with Article I of the Agreement
dated October 10 1984, this correspondence
serves as notice that Cahn . . . desires to terminate
this Agreement effective on its termination date
which is October 9, 1985. Cahn . . . is willing to
meet and confer with you in order to negotiate a
new contract at your convenience . . . .7
The Union responded with a statement of willingness,
dated 12 July 1985, "to begin negotiations with Cahn
Electric Company . . . on all subjects," and proposed a
first meeting.8 The record does not specify the chronolo-
gy of all the bargaining sessions . In early October, Cahn
agreed to continue paying the prevailing wage rate and
fringe benefits during negotiations, but affirmed that this
was not to be construed as assent to any agreement be-
tween the Union and the multiemployer unit.9 A bar-
gaining session was held on 15 October. On 28 October,
Cahn presented proposals on the term of an agreement,
wages, exceptions to a proposed hiring hall clause, a hos-
pitalization program, vacation benefits, and hours of
work. 10
The parties reached impasse, and Cahn implemented
its final offer on 4 December 1985. A strike ensued and
Cahn offered to reinstate strikers as long as positions
were available."
At a meeting of the Joint Conference Committee on 20
June 1986, the Union's business manager stated his opin-
ion that Cahn was still obligated to comply with the con-
tract, apparently referring to the automatic renewal of
the NECA agreement on 9 October 1985 provided for in
article I, and noted that Cahn was paying wages differ-
ent from those provided for therein, and had changed
working conditions. The employer members of the com-
mittee stated that the committee had no jurisdiction over
Cahn because the latter had not signed a new agree-
ment.12
Three days later, on 23 June 1986, the Union notified
Cahn that it intended to file a case with the CIR con-
cerning the negotiations.13
On 26 June 1986 the CIR sent Cahn and the Union a
form letter 'enclosing copies of forms for submitting the
dispute to CIR, together with the admonition to observe
the rules governing timely submission, "both Joint and
Unilateral." 14 Cahn's counsel wrote to the Union and its
counsel stating that the submission to CIR was unlawful
and that Cahn would oppose it. 15 A copy of one of
these letters was sent to the CIR. On 29 July 1986 the
CIR informed Cahn's counsel that the issue of arbitrabi-
lity would be argued and determined as a threshold
Jt Exh 6
8 it Exh 7
8 Jt Exhs 18, 19
10 Jt Exh 8
u Jt Exh 9
12 Jt Exh 10
18 it Exh 11
14 it Exh 12
Is Jt Exhs 13, 14
issue. 16 On 5 August 1986 the CIR informed Cahn by
telegram that the Union had filed a unilateral submission
on the "entire agreement."17
A proceeding was held before the CIR, which issued a
decision dated 20 August 1986. The parties were in-
structed to resume negotiations and, if unsuccessful in
reaching agreement by October 1986, to submit unre-
solved issues to the November session of the CIR. There
is no discussion in the decision of the threshold issue of
arbitrability.111
On 3 September 1986 the Union proposed a bargaining
session on 24 September. Cahn agreed, and a meeting
was held on that date. The parties stipulated that Cahn
then stated that it was not meeting because of the CIR
directive, but because of what it perceived to be its con-
tinuing obligation to bargain with the Union. There was
no further meeting.
B. Legal Conclusions
1. Cahn's letter of Assent-A dated 3 December
1984
It is obvious that Cahn's letter designated NECA as
his bargaining agent. The legal issues are whether it also
manifested his intention to be bound by the existing
agreement and to become a member of the multiemploy-
er bargaining unit. If so, the further issue is whether the
letter contains any limitation on its binding effect.
The legal effect of such letters has been a subject of
Board litigation in the past. Most recently, the Board had
under consideration the finding of the Regional Director
for Region 1 in a representation case that the signatory
of such a letter had merely adopted the results of negoti-
ations between NECA and the union, but had not
become a member of the multiemployer bargaining
group. A panel majority of the Board, Chairman Dotson
dissenting, held that the employer had manifested an in-
tention to become part of the multiemployer group. Vin-
cent Electric Co., 281 NLRB 903 (1986).
In contrast to the dissent's observation that the Letter
of Assent was ambiguous , the majority referred to past
Board decisions holding that by such letter the employer
becomes a member of the association. "[W]e believe that
one cannot simply ignore the interpretation given to this
document by many past Board decisions. To confine the
meaning of this document to its `plain language' at this
late date, in our opinion, is unfair to those who have spe-
cifically relied on the document's longstanding interpre-
tation by the Board" (id. at fn. 4)
It may be noted that the cited history of interpretation
does not negate the right of employer withdrawal from a
multiemployer group in appropriate circumstances. Thus,
in one of the cases relied on in Vincent Electric, the
Board accepted a conclusion of the administrative law
judge "that if the 150-day notice was not given, the
party signing said assent would remain in the chapter
and be bound by the succeeding contracts between the
chapter and the Union," thereby suggesting that giving
18 Jt Exh 15
11 it Exh 20
18 it Exh 21
ELECTRICAL WORKERS IBEW LOCAL 194 (CAHN ELECTRIC) 331
the notice would release the signatory from the obliga-
tions of the contract. McCormack Electrical Construction,
240 NLRB 418, 424 (1979). Arid, in Central New Mexico
Chapter, 152 NLRB 1-604, 1607 (1965), also cited in Vin-
cent Electric, supra, the Board itself stated that signato-
ries to a Letter of Assent-A, "except those which may
have timely revoked the authority granted in accordance
with the terms of `Assent A,' comprise a multiemployer
bargaining group." These conclusions are consistent with
the language of the Letter of Assent, which specifies the
procedure by which it may be terminated.
I conclude herein Cahn, by signing the Letter of
Assent-A on 3 December 1984, thereby designated
NECA as its bargaining agent and manifested an inten-
tion to be a member of the multiemployer group, but did
not waive its right to revoke the former and withdraw
from the latter, as established by the Letter of Assent
and by prior law.
2. Cahn's notices dated 25 April and 25 June 1985
As described above, the first anniversary date of the
1984-1985 collective-bargaining agreement was 9 Octo-
ber 1985. Cahn's Letter of Assent-A, executed in De-
cember of 1984, specified that it was to remain in effect
unless terminated at least 150 days prior to the anniversa-
ry date. Cahn's letter on 25 April 1985 to NECA and the
Union, terminating the Letter of Assent, met this dead-
line.
As further described above, the collective-bargaining
agreement requires that notice of intention to change or
terminate the agreement must be sent to the other party
at least 90 days prior to the anniversary date. Cahn's
letter to the Union dated 25 June 1985 also met this
deadline; there is no evidence that any collective-bar-
gaining negotiations were then taking place between
NECA and the Union.
These two documents manifest Cahn's intention to
cancel, revoke, or withdraw from the following, legal
constraints: (1) NECA's authority to negotiate on behalf
of Cahn in any manner, including "renewal" of the
agreement; (2) participation in multiemployer bargaining;
and (3) the existing collective-bargaining agreement on
its expiration date.
With respect to Cahn's purported withdrawal from
multiemployer bargaining, it is well established that mul-
tiemployer bargaining is consensual in nature, and is
based on evidence that the employers intend to be bound
by group rather than individual action. Similarly, an em-
ployer may be excluded from the group based on evi-
dence of an intention to pursue an individual course of
action with respect to labor relations. In this respect, the
Board has recently reaffirmed the principle that an em-
ployer may withdraw from a multiemployer bargaining
relationship provided that his'attempt to do so is timely
and unequivocal. Watson-Rum,rnelt Electric Co., 277
NLRB 1401 (1985). It is clear that Cahn's 25 April at-
tempt was timely and unequivocal, and I conclude that it
thereby effectively withdrew from the multiemployer
group.
Respondent Union argues that Cahn, nonetheless, was
bound by the arbitration provision of the 1984-1985
agreement. In addressing this issue, the first question is
whether Cahn intended, by, its 1985 notices, to cancel
that provision. It is well established that the Board will
not defer to arbitration if no„arbitration agreement in fact
exists. Atlas Tack Corp., 266 NLRB 222 (1966), enfd. 559
F.2d 1201 (1st Cir. 1977). Neither of Cahn's 1985 notices
explicitly states its intention to cancel the arbitration pro-
vision. On the other hand, Cahn's vigorous opposition to
the Union's submission of the dispute to arbitration
shows that Cahn intended cancellation, and that the sub-
mission to arbitration was a surprise., I conclude that it
was Cahn's intention, at least , to abrogate all provisions
of the 1984- 1985 agreement on its expiration date, and
that it impliedly abrogated the arbitration provision.
The next question is whether Cahn had legal authority
to do so. This, in turn, depends on the terms of the con-
tract and the Letter of Assent-A. As noted, the former
provides that it applies to all firms who sign a letter of
assent "to be bound" by the agreement, and the letter of
assent has been interpreted by the Board to manifest the
employer's intention to become a member of the multi-
employer group.
The Letter of Assent is ambiguous on the issue of the
binding effect of the contract on Cahn. The only express
grant of authority is from Cahn to NECA as Cahn's bar-
gaining representative with respect to the "current ap-
proved labor agreement." However, this grant of author-
ity may reasonably be interpreted to manifest Cahn's in-
tention to abide by the agreement-an inference support-
ed by Cahn's actions. The Letter of Assent continues,
however, to state that "it shall remain in effect until ter-
minated" (by 150-day notice). What shall remain "in
effect?" NECA's authority? The binding effect of the
contract on Cahn, which has been inferred although not
expressly stated? The Letter of Assent is unclear. On one
construction, it may be interpreted to give to Cahn the
right to withdraw from the obligations of the contract, if
not in midterm, at least on expiration-which is all that
Cahn is contending.
It may be recalled that the Letter of Assent-A was r '
IBEW form that was filled in and signed by Cahn and
the Union. It is fundamental that doubtful language in a
contract must be interpreted most strongly against the
party who selected that language.ia Application of this
principle leads to a conclusion that the Letter of Assent-
A, by which Cahn.arguably adhered to the contract, also
gave him authority to terminate the agreement, at least
by the end of its stated term.
This conclusion is buttressed by the fact that the,
Union did not protest Cahn's 25 April notice. Rather, it,
referred to such notice as Cahn's desire to "negotiate in-
dividually," declared its willingness to negotiate "with
Cahn Electric Company" on all subjects, and thereafter
engaged in individual bargaining with Cahn on wages,
hours, and terms and conditions of employment of
Cahn's employees. By such actions the Union acquiesced
in Cahn's withdrawal from multiemployer bargaining.
I. C. Refrigeration Service, 200 NLRB 687 (1972). Where
a labor organization thus consented to abandonment of
multiemployer bargaining by several employers, the
19 17 Am Jur.2d, Contracts § 276, Restatement, Contracts § 236.
332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Board held that the employers did not violate the Act by
refusing to abide by the terms of a collective-bargaining
agreement between the union, and an employer associa-
tion (id.).20
Even without such action by Cahn and the Union, the
Employer could have abrogated the arbitration clause of
the contract. It is well established that such clauses con-
cern nonmandatory subjects of bargaining and, _ as such,
may be abrogated by either party during the life of the
agreement without violating the Act. Allied Chemical
Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 188
(1971).
The Union argues that by its submission of its dispute
with Cahn to arbitration, it was merely seeking to en-
force its rights under the arbitration provision in the
1984-1985 agreement, which, it asserts, survived expira-
tion of the contract. The Union cites various Federal
court cases holding that interest arbitration provisions in
contracts survive expiration of the contract.2 i However,
this may be, Cahn was not bound by the provisions of
the 1984-1985 contract when it gave timely notice of
withdrawal from the multiemployer group and the Union
acquiesced. Without passing on the irrelevant issue of
whether such obligation ceased during the term of the
contract, it clearly ended not later than the expiration
date of 9 October 1985.
This conclusion' is consistent with the established law
on the nature of multiemployer bargaining, and on an
employer's right to withdraw from such bargaining
under appropriate circumstances. Cahn did so withdraw,
and it would be anomalous to hold that, nonetheless, it
was still obligated to abide by a "survived" provision of
the multiemployer agreement. On the contrary, Calm
had no obligation to submit to arbitration, and there was
nothing to "survive" an agreement by which it was no
longer bound. Even if it was so bound by a prior con-
tract, this would not have justified the Union's unilateral
submission of the dispute to the CIR. Electrical Workers
IBEW Local 135 (La Crosse Electrical), 271 NLRB 250
(1984).
3. The substantive allegations
As set forth above, the complaint alleges that the
Union restrained and coerced Cahn in the selection of its
bargaining representative by submitting the dispute to ar-
bitration, in violation of Section 8(b)(1)(B).22 Presented
20 Accord Acropolis Painting, 272 NLRB 150 (1984), NLRB v. Hayden
Electric, 693 F.2d 1358 (11th Cir 1982), denying enf of 256 NLRB 601
(1981 ), NLRB v. Caller, 630 F 2d 595 (8th Cir 1980), enfg. 243 NLRB
1114 (1979), Fairmont Foods Co v. NLRB, 471 F 2d 1170 (8th Cir 1972),
denying enf 196 NLRB 849 (1972); NLRB v Spun-Jee Corp., 385 F 2d
379'(2d Ctr 19172), denying enf of 152 NLRB 943 (1965)
21 Nolde Bros v. Bakery Workers, 430 U S 243 (1977), in which the
Supreme Court held that a dispute over severance pay under an expired
collective-bargaining agreement was arbitrable , and other cases applying
this principle to interest arbitration provisions, to wit, Sheet Metal Work-
ers Local 120 v Huggins Sheet Metal, 752 F 2d 1473 (9th Cir 1985); Hotel
& Restaurant Employees Local 703 v. Williams, 752 F 2d 1476 (9th Cir.
1985), Sheet Metal Workers Local 57 Welfare Fund v. Tampa Sheet Metal
Co., 768 F 2d 1459 (11th Cir 1986)
22 The complaint particularizes the various subsidiary stages of the
submisison, i e., the notification of intention to submit, the submission
without Cahn's consent, the failure to withdraw the submission, and the
oral presentation of unresolved issues resulting in an order from the CIR
with this issue in another case now before the Board,
Judge Gordon J. Myatt concluded that the employers'
cancellation of the letters of assent therein impliedly ab-
rogated the CIR provisions of the existing agreement.
Thereafter, the union's submission of the dispute to the
CIR was an unlawful attempt to compel the employers
to relinquish their right to select their own bargaining
representative. 2$
The Act states that the term "representatives" includes
"any individual or labor organization. 1124 Although the
CIR cannot be said to be Cahn's "representative" in the
usual sense, it does consist of equal numbers of employer
and union representatives. More particularly , it exists as
a substitute or supplement to the normal bargaining proc-
ess. Any assistance that Cahn may seek to advance its
cause must be found within the CIR, possibly with the
employer members thereof, since Cahn is no longer able
to select its own bargaining representative after the in-
voluntary submission. In these circumstances, and con-
sistent with the statutory definition, I conclude that the
individuals comprising the CIR were "representatives"
of Cahn, and that the latter was compelled to select such
representatives by the Union's unilateral submission of
the dispute to arbitration. Accordingly, I find, the Union
thereby violated Section 8(b)(l)(B) of the Act.
The complaint also alleges that the Union violated
Section 8(b)(3) of the Act by insisting to impasse on' in-
terest arbitration, a nonmandatory subject of bargaining.
Although the bargaining history does not specifically in-
dicate that the arbitration clause was one on which the
parties reached impasse, when the Union submitted the
dispute to arbitration it did so on the entire agreement.
The entire agreement, of course, included the interest ar-
bitration provision, and it is unlikely that the Union
would have submitted to the CIR issues on which Cahn
had agreed, e.g., an interest arbitration provision. Ac-
cordingly, I find that the Union did insist to impasse on
such provision, and thereby violated Section 8(b)(3) of
the Act. That there may have been other issues dividing
the parties is no defense. Electrical Workers IBEW Local
135 (La Crosse Electrical), supra.
Respondent Union argues that the Board should defer
to the threshold determination by the CIR of the arbitra-
bility of this dispute. This argument is fallacious for sev-
eral reasons . In the first place, the Union's submission of
the dispute violated the CIR's stated rules on unilateral
submissions in that there was no "stipulation" from the
Employer. Secondly, the CIR's written decision con-
tained no discussion whatever of the arbitrability issue.
Finally, as the Board has stated:
Issues presented in the interest arbitration proceed-
ing, concerning what contractual terms shall bind
the parties for the future, are in no sense parallel to
the statutory issue presented . . . whether the
Union failed to bargain in good faith by insisting to
impasse on a nonmandatory subject of bargaining.
[271 NLRB at 251.]
23 Electrical Workers Local 46 (Puget Sound), Case 19-CB-5160, etc.,
JD-(SF)-84-85, slip op at 22-23 (1985)
24 Sec 2(4)
ELECTRICAL WORKERS IBEW LOCAL 194 (CAHN ELECTRIC)
CONCLUSIONS OF LAW
1. Cahn Electric Co., Inc. is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Respondent International Brotherhood of Electrical
Workers, Local Union No. 194 is a labor organization
within the meaning of Section 2(5) of the Act.
3. All employees performing electrical work within
the jurisdiction of the aforesaid Respondent Union em-
ployed by Cahn, excluding all office clerical employees,
guards and supervisors as defined in the Act, constitute a
unit appropriate for purposes, of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material , Respondent Union has been
the collective-bargaining representative of the employees
of Cahn in the unit described above.
5. By insisting to impasse that a collective -bargaining
agreement include a provision for interest arbitration,
Respondent Union thereby violated Section 8(b)(3) of
the Act.
6. By unilaterally submitting its negotiation dispute
with Cahn to the Council of Industrial Relations (CIR),
and by continuing such submission after Cahn protested
same, Respondent Union thereby violated Section
8(b)(1)(B) of the Act.
7. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent Union violated Section
8(b)(3) of the Act by insisting to impasse, as a condition
of any collective-bargaining agreement, that Cahn agree
to interest arbitration, and that the Union also violated
Section 8(b)(1)(B) of the Ac9 by unilaterally submitting
its negotiations dispute with Cahn'to the Council on In-
dustrial Relations (CIR), and by continuing such submis-
sion after Cahn protested same, in violation of Section
8(b)(l)(B) of the Act, I shall recommend that Respond-
ent Union be ordered to cease and desist from this or
any like or related unfair labor practices, to take certain
affirmative action in order to effectuate the policies of
the Act, and to post appropriate notices.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed25
25 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
ORDER
333
The Respondent, International Brotherhood of Electri-
cal Workers, Local Union No. 194," its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Insisting to impasse that Cahn Electric Co., Inc. or
any other employer agree to interest arbitration or any
other nonmandatory subject of bargaining.
(b) Continuing to submit to the Council on Industrial
Relations for the Electrical Construction Industry of the
United States and Canada its negotiation dispute with
Cahn Electric Co., Inc.
(c) In any like or related manner violating its obliga-
tion to bargain in good faith, under Section 8(b)(3) and
Section 8(d) of the Act, with Cahn Electric Co., Inc.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Notify the Council on Industrial Relations for the
Electrical Construction Industry of the United States and
Canada in writing that it is withdrawing its submission of
a dispute with Cahn Electric Co., Inc., and send a copy
of the notification to Cahn Electric Co., Inc.
(b) Post at its offices and meeting halls copies of the
attached notice marked "Appendix."26 Copies of the
notice, on forms provided by the Regional Director for
Region 15, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(c) Sign and mail sufficient copies of the notice to the
Regional Director for Region 15 for posting by Cahn
Electric Co., Inc., provided that it is willing. The notices
are to be posted in all locations where notices to employ-
ees are customarily posted.
(d) Notify the Regional Director in writing within 20
days from the date of this Order, what steps Respondent
has taken to comply.
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
26 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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."