Tri-Pak Machinery, Inc.

National Labor Relations Board - Board Decisions

Apr 23, 1998

325 N.L.R.B. 671 (N.L.R.B. 1998)

671
325 NLRB No. 119
TRI-PAK MACHINERY, INC.
1 The Respondent also moved to strike portions of the General
Counsel’s brief and exhibits. In view of our decision, we deny the
Respondent’s motion as moot.
Tri-Pak Machinery, Inc. formerly Tri-Pak Machin-
ery Service, Inc. and International Brotherhood
of Electrical Workers, Local Union 278. Case
16–CA–17827
April 23, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX
AND LIEBMAN
The issue in this case is whether to defer the dispute
to the parties’ contractual grievance-arbitration machin-
ery.
Upon a charge filed by the International Brother-
hood of Electrical Workers, Local Union 278 (the
Union), the General Counsel of the National Labor Re-
lations Board issued a complaint on April 30, 1996, al-
leging that the Respondent, Tri-Pak Machinery, Inc.,
violated Section 8(a)(5) and (1) of the National Labor
Relations Act, by refusing to meet and bargain with
the Union in response to its request pursuant to a re-
opener provision in the parties’ collective-bargaining
agreement. The Respondent filed an answer admitting
in part, and denying in part, the allegations of the com-
plaint and asserting an affirmative defense that the
complaint allegations should be deferred to the parties’
grievance-arbitration procedure pursuant to Collyer In-
sulated Wire, 192 NLRB 837 (1971), and United Tech-
nologies Corp., 268 NLRB 557 (1984).
On November 1, 1996, the General Counsel, the Re-
spondent, and the Union filed a stipulation of facts and
joint motion to transfer these proceedings directly to
the Board. The parties agree that the charge, com-
plaint, answer, and stipulation, with attached exhibits,
shall constitute the entire record in this case and that
no oral testimony is necessary or desired by any of the
parties. The parties further agree that the stipulation
has been entered into by them for the purpose of the
above-entitled matters only. The parties waive a hear-
ing before an administrative law judge, and agree to
submit this case directly to the Board for findings of
fact, conclusions of law, and the issuance of a Deci-
sion and Order.
On January 14, 1997, the Executive Secretary, by
direction of the Board, issued an order granting the
motion, approving the stipulation, and transferring the
proceeding to the Board. Thereafter, the General Coun-
sel and the Respondent filed briefs, and the Respond-
ent filed an answering brief.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Tri-Pak Machinery, Inc., a Texas
corporation with an office and place of business in
Harlingen, Texas, is engaged in the manufacture and
retail sale of parts, machinery, and vaporizers. During
the past 12 months, Respondent, in conducting its
business operations, has purchased and received for
use at its Harlingen, Texas facility goods and materials
valued in excess of $50,000 directly from suppliers lo-
cated outside the State of Texas.
Accordingly, in agreement with the stipulation of the
parties, we find that the Respondent is an employer in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act and that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICE
A. Facts
Since May 14, 1965, the Union has been certified as
the exclusive collective-bargaining representative of
the employees in the following appropriate unit:
Included: All production and maintenance em-
ployees, including the shipping clerk.
Excluded: office clerical employees, professional
employees (including salesmen), draftsmen,
guards, and supervisors as defined in the Act.
Such recognition has been embodied in successive
collective-bargaining agreements, the most recent of
which is effective by its terms for the period of Feb-
ruary 16, 1993, to February 16, 1996. Each collective-
bargaining agreement, including the most recent 1993–
1996 agreement, contains the following provision:
Either party desiring to change or terminate this
Agreement must notify the other in writing, by
certified mail, sixty (60) days prior to the termi-
nation date or on such anniversary termination
date thereafter in any subsequent year. When no-
tice is given for changes, the nature of the
changes desired must be specified in the notice
and the parties shall commence negotiations with-
in such sixty (60) day period and this agreement
shall continue in effect after said termination date
until agreement is reached or until written notice
is given by either party to terminate the Agree-
ment.
The history of the parties’ collective-bargaining rela-
tionship indicates that the Union had at one point initi-
ated negotiations to modify the parties’ then-existing
collective-bargaining agreements by letters, submitting
with those letters proposed modifications to the bar-
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672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 This process was used in December 1976 and January 1980.
3 The May 3, 1983 letter requested negotiations to change ‘‘wages,
benefits and working conditions’’; the April 18, 1989 and December
16, 1992 letters summarily listed the articles it sought to reopen. In
addition to the December 16, 1992 letter, the Union sent the Re-
spondent a copy of a letter from the International president to the
local business manager citing problems with the then-current agree-
ment. The letter, dated January 18, 1993, stated that ‘‘the issues
mentioned in the enclosed letter are some of the issues the [Union]
will be bringing to the bargaining table.’’
gaining agreement.2 More recently, however, by letters
dated May 3, 1983, April 18, 1989, and December 16,
1992, the Union initiated negotiations to modify the
parties’ then-existing collective-bargaining agreements,
listing in those letters only the broad topics proposed
for modification.3 On each occasion, the Respondent
engaged in negotiations following receipt of the letters,
without raising any question as to the appropriateness
of the process used by the Union.
By letter dated December 12, 1995, the Union re-
quested that the contract be reopened to negotiate the
following listed issues:
Article 16 Wages
Article 7 Vacations
Article 9 Hours and Overtime
Article 20 Bonus Insurance Plan
Article 23 Hospital Insurance
Article 24 Disability Insurance
Article 25 Effective Date and Termination
By letter dated December 18, 1995, the Respondent,
through its attorney, cited the reopener provision of the
contract and stated that the Union’s December 12 letter
‘‘does not set out the nature of the changes desired in
a specific manner.’’ The Union responded by letter
dated January 3, 1996, proposing to reopen the con-
tract only as to wages and the effective date, and
specifying the proposed wage increase and the effec-
tive dates. By letter dated January 23, 1996, the Re-
spondent reiterated that the December 12 letter did not
constitute valid notice because it lacked specifics. The
Respondent also contends that the January 3, 1996 let-
ter, though more specific, also was invalid under the
contract because it was not provided 60 days prior to
the February 16, 1996 termination of the collective-
bargaining agreement.
B. Contentions of the Parties
The General Counsel contends that the Respondent
violated Section 8(a)(5) and (1) by failing and refusing
to bargain with the Union pursuant to its timely re-
quest, made in a form the Respondent has honored in
the past. The General Counsel summarily argues that
deferral to arbitration is inappropriate, ‘‘where there is
a substantial question as to whether a collective-bar-
gaining agreement has been extended or automatically
renewed.’’ Accordingly, the General Counsel requests
that the Board decide the case on the merits and find
that the Respondent violated the Act as alleged.
The Respondent admits that it has refused to honor
the Union’s request to reopen the contract, but con-
tends that the Union’s request was not made in con-
formity with article 25 of the contract in that the
Union did not specify the nature of the changes it
sought. The Respondent disputes that the contract was
modified by past practice but argues that, in any event,
the dispute involves the interpretation of the collective-
bargaining agreement and should be deferred to the
parties’ grievance and arbitration procedure.
C. Discussion and Conclusions
Contrary to the General Counsel, we find that defer-
ral of the instant dispute is warranted. In United Tech-
nologies Corp., 268 NLRB 557 (1984), the Board re-
vived the ‘‘deferral to arbitration policy expressed in
Collyer Insulated Wire, above, and held that, where, as
here, ‘‘an employer and union have voluntarily elected
to create dispute resolution machinery culminating in
final and binding arbitration, it is contrary to the basic
principles of the Act for the Board to jump into the
fray prior to an honest attempt by the parties to resolve
their disputes through that machinery.’’ The Board, in
United Technologies, stated that deferral is appropriate
when the following criteria are present: the dispute
arose within the confines of a long and productive col-
lective-bargaining relationship; there is no claim of
employer animosity to the employees’ exercise of pro-
tected rights; the parties’ contract provided for arbitra-
tion in a very broad range of disputes; the arbitration
clause clearly encompasses the dispute at issue; the
employer has asserted its willingness to utilize arbitra-
tion to resolve the dispute; and the dispute is eminently
well-suited to such resolution. United Technologies,
268 NLRB at 558.
We find that these deferral criteria are met in this
case. Thus, the record shows that the Respondent and
the Union have had a collective-bargaining relationship
dating back to 1965, and there is no evidence that the
Respondent is hostile to the exercise of protected statu-
tory rights by its employees. The parties’ grievance
and arbitration provision broadly defines a grievance
as ‘‘a dispute, claim or complaint arising under and
during the term of this Agreement’’ and notes that it
is ‘‘limited to matters of interpretation or application
of this agreement.’’ Thus, the only restriction in the
agreement over matters which may be submitted to ar-
bitration appears to be that the disputes must involve
interpretation of the contract. In agreement with the
Respondent’s contention, we find that the Respondent
has raised an issue of contract interpretation and that
the arbitration clause encompasses the complaint alle-
gations. Finally, the Respondent has exhibited its will-
ingness to submit to arbitration. Under these cir-
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673TRI-PAK MACHINERY, INC.
4 Because the issue is not presented in this case, Members Fox and
Liebman do not reach the question whether the standard set by Olin
Corp., 268 NLRB 573 (1984), prescribes too broad a class of cases
in which the Board must defer. See, e.g., Mobile Oil Exploration &
Producing, U.S., 325 NLRB 176, 179 fn. 14 (1997).
Chairman Gould agrees with his colleagues that, pursuant to
Collyer Insulated Wire, supra, deferral of the instant dispute is ap-
propriate. See also McDonnell Douglas Corp., 324 NLRB 1202,
1205 fn. 10 (1977). Further, Chairman Gould notes that, as a result
of our deferral, the proceeding will remain subject to postarbitral re-
view by the Board upon assertion by either party that either the arbi-
tral proceedings or decision fail to satisfy the Board’s requirements
for postarbitral deferral under Spielberg Mfg., Co., 112 NLRB 1080
(1955). For the reasons stated in his concurring opinion in Mobile
Oil Exploration & Producing, U.S., supra, in determining whether an
arbitrator’s award is not clearly repugnant to the purposes and poli-
cies of the Act under Spielberg, Chairman Gould would adhere to
the more stringent standard in Raytheon Co., 140 NLRB 883 (1963),
that the award be consistent with Board precedent. Accordingly, he
would reverse Olin Corp., supra, to the extent that it weakens the
‘‘clearly repugnant’’ standard of Spielberg by ‘‘not requiring an ar-
bitrator’s award to be totally consistent with Board precedent.’’ Olin,
268 NLRB at 574.
cumstances, we conclude that the dispute is eminently
well suited to resolution through that process.
We find no merit in the General Counsel’s broad as-
sertion that deferral to arbitration is inappropriate for
questions regarding extensions or renewals of collec-
tive-bargaining agreements as to which the parties are
in dispute. If there is no dispute about the existence of
the contract containing the arbitration clause, and the
clause, as here, broadly covers all disputes about con-
tractual terms, then disputes concerning the renewal or
termination of that contract are appropriate for arbitra-
tion. Teamsters Local 70 v. Interstate Distributor Co.,
832 F.2d 507, 510–511 (9th Cir. 1987). See also
Roadmaster Corp., 98 LA 847 (Christenson, 1992) (ar-
bitrator decided issue whether employer’s contractual
notice to terminate contract was sufficient to forestall
automatic ‘‘rollover’’).
Accordingly, we shall dismiss the complaint subject
to the qualifications contained in the Order below.4
ORDER
The complaint is dismissed, provided that the juris-
diction of this proceeding is retained for the limited
purpose of entertaining an appropriate and timely mo-
tion for further consideration on the proper showing
that either (a) the dispute has not, with reasonable
promptness after the issuance of this Decision and
Order, been either resolved by amicable settlement in
the grievance procedure or submitted promptly to arbi-
tration, or (b) the grievance or arbitration procedures
have not been fair and regular or have reached a result
that is repugnant to the Act.
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