N.L.R.B. v. Columbus Printing Pressmen and Assistants' Union No. 252

• Decision Date: 13 December 1976
• Docket Number: No. 75-3546,75-3546
• Parties: 93 L.R.R.M. (BNA) 3055, 79 Lab.Cas. P 11,782 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The COLUMBUS PRINTING PRESSMEN & ASSISTANTS' UNION NO. 252, Subordinate to IP& GCU, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1161

543 F.2d 1161

93 L.R.R.M. (BNA) 3055, 79 Lab.Cas. P 11,782

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The COLUMBUS PRINTING PRESSMEN & ASSISTANTS' UNION NO. 252, Subordinate to IP& GCU, Respondent.

No. 75-3546.

United States Court of Appeals, Fifth Circuit.

Dec. 13, 1976.

Elliott Moore, Deputy Assoc. Gen. Counsel, Paul J. Spielberg, Supervisor, Frank Morris, Atty., Alan Banov, Atty., John S. Irving, Jr., Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, N. L. R. B., Washington, D. C., for petitioner.

Frank B. Wolfe, III, Tulsa, Okl., for Page Corp.

John S. McLellan, Kingsport, Tenn., for respondents.

Walter C. Phillips, Director, Region 10, N. L. R. B., Atlanta, Ga., for other interested parties.

Application for Enforcement of an Order of the National Labor Relations Board (Alabama Case).

Before RIVES, ^* GEWIN and MORGAN, Circuit Judges.

GEWIN, Circuit Judge:

The National Labor Relations Board ("NLRB") petitions for enforcement of its order ¹ directing that respondent, The Columbus Printing Pressmen & Assistants' Union No. 252, Subordinate to IP & GCU, ² ("the union"), bargain collectively with the R. W. Page Corporation ("the company"). The Board found that the union violated section 8(b)(3) of the National Labor Relations Act, as amended, ("the Act"), ³ by insisting to impasse that the company agree to include in the parties' new collective-bargaining agreement a provision requiring the parties to submit disputes over new contract terms to final and binding arbitration. We enforce the Board's order.

I. The Factual and Procedural Background.

Since at least the early 1940's the union and the company have entered into successive collective bargaining agreements, each agreement providing for resolution of disputes over the meaning of the contract by a grievance arbitration procedure and for resolution of disputes over new contract terms by a "new contract arbitration" procedure. ⁴ The practice of arbitrating new contract terms has prevailed in the newspaper printing industry for approximately 75 years. The parent organization of respondent has maintained a national arbitration agreement with the American Newspaper Publishers Association since 1905. The local agreement to arbitrate reflects in substance precisely this type of contractual commitment. The last such agreement between the company and union was effective from September 1, 1970, through August 31, 1973. The contract arbitration clause in that agreement was identical with those contained in prior agreements, providing as follows:

Section 2. It is agreed between the Publisher and the Columbus Union that all disputes regarding a new Contract and scale to become effective at the expiration of this Contract, which cannot be settled by negotiation, shall be determined by arbitration as hereinafter provided in Article Sixteen hereof; and this Contract shall remain in force until all disputes are settled by negotiation or arbitration, provided that the party requesting arbitration takes all necessary steps to have the Arbitration Board formed within thirty (30) days from the date of the request of either party in accordance with the provisions hereinafter provided.

In 1970 the union's three-year contract with the company was scheduled to expire on August 31. The company bargained with the union beyond the expiration date, and on September 29 the only unresolved issue was the retention or deletion of the contract arbitration clause, the company insisting on its deletion. After deadlock, the union submitted the dispute to the arbitration procedure. In March, 1972, Professor Charles O. Gregory issued an award directing that the contract arbitration clause be carried over into the parties' new contract.

On June 27, 1973, the union submitted the draft of a new contract to run from 1973 to 1976. The union proposed inclusion of a new contract arbitration clause. By October 29 three issues remained unresolved: wages, the manning schedule for the "color hump" (the color-producing process), and the contract arbitration clause. The following day the employees rejected the company's last offer. Negotiations continued, with the company offering a further wage increase in exchange for the union's "backing off on (requiring) the excess color man on the hump." The union opposed the contract proposal because it lacked the contract arbitration clause, but submitted it to the employees. A few days later the union reported that the employees would accept the company's latest proposal if the contract arbitration clause were carried forward.

During the succeeding weeks the parties exchanged letters in which they maintained their positions on the clause. The company's last letter contended that the parties had agreed on all other issues, that contract arbitration was not a mandatory subject of bargaining, and that the union was therefore obligated to sign a contract. In February, 1974, when the union wrote to the company seeking to invoke the contract arbitration clause of the 1970-73 contract to obtain inclusion of such a clause in the new contract, the company filed an unfair labor practice charge against it. A majority of the Board (Members Fanning and Jenkins concurring, Chairman Murphy dissenting) agreed with the administrative law judge that contract arbitration is not a mandatory subject of bargaining and that the union violated section 8(b)(3) of the Act by insisting to impasse that the company agree to its inclusion in a new contract. The Board's order requires the union to cease and desist from the unfair labor practice and to bargain with the company over "wages, hours, and other terms and conditions of employment."

II. Contract Arbitration as a Mandatory Subject of Bargaining.

Under section one of the Act, the policy of the United States is to protect the right of employees to designate their representatives and encourage to collective bargaining between employers and those representatives. 29 U.S.C. § 151. To this end section 8(b)(3) provides that it is an unfair labor practice for a labor organization "to refuse to bargain collectively with an employer." Id. § 158(b)(3). Further, section 8(d) provides that

to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement . . . and the execution of a written contract incorporating any agreement reached if requested by either party . . . . Id. § 158(d).

Wages, hours, and other terms and conditions of employment are considered mandatory subjects of collective bargaining, and either party may insist upon inclusion of a clause relating to those subjects. Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 210, 85 S.Ct. 398, 13 L.Ed.2d 233, 238 (1964). By the same token it is unlawful to insist upon the inclusion of a clause relating to matters as to which collective bargaining is not mandatory. NLRB v. Wooster Division of Borg-Warner Corp., 356 U.S. 342, 349, 78 S.Ct. 718, 2 L.Ed.2d 823, 829 (1958); Philip Carey Manufacturing Co. v. NLRB, 331 F.2d 720, 726 (6th Cir.), cert. denied, 379 U.S. 888, 85 S.Ct. 159, 13 L.Ed.2d 92 (1964). Thus, it is incumbent upon us to determine whether the Board correctly concluded that contract arbitration is not a mandatory subject of bargaining.

In assessing the Board's conclusion, we must keep in mind the Supreme Court's dictum that "classification of bargaining subjects as 'terms (and) conditions of employment' is a matter concerning which the Board has special expertise." Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 182, 92 S.Ct. 383, 399, 30 L.Ed.2d 341, 359 (1971); Local Union No. 189, Amalgamated Meat Cutters v. Jewel Tea Co., 381 U.S. 676, 685-86, 85 S.Ct. 1596, 14 L.Ed.2d 640, 646-47 (1965). The Board contends that contract arbitration is a nonmandatory subject because it can have no impact upon the unit employees' working conditions during the term of the contract being negotiated. The union argues, however, that contract arbitration, as a procedure for determining "wages, hours, and other conditions of employment," is so intertwined with working conditions in the contract being negotiated as to render it a mandatory subject. Further, the union contends that employees derive a benefit from such a clause during the term of the contract: they are assured of continuing employment during any dispute that might arise over new contract provisions. Finally, the union insists that a contract arbitration clause is indistinguishable from a cost-of-living escalation clause.

The union's arguments are unpersuasive. First, the analogy to cost-of-living clauses is not apt. Such clauses are in the nature of aleatory contracts; they safeguard employees' interests against certain contingencies which will occur and affect wages, if at all, only during the existence of the contract. In contrast, contract arbitration clauses only affect wages and working conditions during the time periods covered by future contracts. Similarly, there is an "intertwining" between the arbitration clause and terms and conditions of employment only as to the term of a future contract.

The only benefit said to accrue to employees during the term of the contract being negotiated is the "peace of mind" they derive from knowing that disputes over new contract terms will not be resolved by the application of economic pressure. This asserted benefit, however, is too speculative to be considered a term or condition of employment in light of Allied Chemical & Alkali Workers, supra. The Board in that case held that the employer had refused to bargain by unilaterally offering retired employees an alternative to the method of payment of group health insurance premiums prescribed by the collective bargaining agreement. The Sixth Circuit...