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Robert S. Bortner, Inc. v. Sheet Metal Workers International Association Local Union No. 19

April 13, 2006


The opinion of the court was delivered by: Judge Sylvia H. Rambo


Before the court is Defendant's Motion to Confirm Arbitration Award and in the Alternative Motion for Summary Judgment (Doc. 17). The parties have briefed the issues and the motion is ripe for disposition. For the following reasons, the court will grant the motion.

I. Introduction

A. Factual Background

This dispute arises out of a collective bargaining agreement between the parties. Plaintiff Robert S. Bortner, Inc. (hereinafter "Bortner") is a York, Pennsylvania contractor. Defendant Sheet Metal Workers' International Association, Local Union No. 19 (hereinafter "the Union") is an unincorporated labor organization located in Philadelphia, Pennsylvania. The following facts are undisputed except where noted.

On or about September 2, 1987, Bortner signed its first collective bargaining agreement with the Union. Bortner later joined the Sheet Metal Contractors' Association (hereinafter "SMCA") and authorized SMCA to bargain for and bind Bortner to a series of subsequent collective bargaining agreements with the Union. Bortner was still a member of SMCA when it negotiated the 2001/2004 collective bargaining agreement with the Union. The 2001/2004 collective bargaining agreement contained a Term of Agreement provision, Article XX, Section 1, that stated that the agreement covered the period from June 1, 2001 through May 31, 2004, "and shall continue in force from year to year after unless written notice of reopening is given not less than ninety (90) days prior to the expiration date."

Article II, Section 12 of the 2001/2004 collective bargaining agreement contained an authorization provision indicating that the employer recognized the Union as the exclusive bargaining representative of the majority of the employer's employees, "unless and until such time as the Union loses its status as the Employee's exclusive representative as a result of an N.L.R.B. election requested by the Employees." The agreement also set forth grievance procedures in Article XVIII, Section 8, providing in relevant part that:

[i]n addition to the settlement of grievances arising out of interpretation or enforcement of this Agreement . . . any controversy or dispute arising out of the failure of the parties to negotiate a renewal of this Agreement shall be settled as hereinafter provided:

(a) Should the negotiations for a renewal of this Agreement or negotiations regarding a wage/fringe reopener become deadlocked in the opinion of the Union representative(s) or of the Employer(s') representative(s), or both, notice to that effect shall be given to the National Joint Adjustment Board.

The provision then described the procedure for mediation, which provided ultimately that either party "may submit the dispute to the National Joint Adjustment Board," if initial efforts at conciliation fail. The grievance procedures provision then stated that "[t]he unanimous decision of [the National Joint Adjustment Board] shall be final and binding upon the parties."

In a letter dated February 16, 2004, Jeffrey W. Bortner, the President of Bortner, advised the Union that it no longer authorized SMCA to negotiate on its behalf and that it did not intend to renew the collective bargaining agreement with the Union. The Union and Mr. Bortner exchanged a series of letters from February 2004 through September of 2004 disputing whether Bortner had an obligation to renegotiate a new agreement with the Union.

On November 30, 2004, the Union filed an unfair labor practice charge with the National Labor Relations Board (hereinafter "NLRB") claiming that Bortner was refusing to bargain in good faith in violation of section 8(a)(5) of the National Labor Relations Act (hereinafter "NLRA").*fn1 An NLRB agent interviewed Mr. Bortner and told him that Bortner had an obligation to bargain with the Union. Mr. Bortner's counsel was present during the course of the NLRB interview. Bortner subsequently entered into negotiations with the Union; however, the parties dispute whether Bortner intended to bargain in good faith to form an agreement or only until he could walk away from such bargaining without reaching an agreement.

The first negotiation meeting between the parties was on January 21, 2005. The Union was represented by William Dorward, the Business Representative in charge of Bortner's geographic area, and Walter Fredericks, the Union's organizer for that area. Jeffrey Bortner, his wife, Donna Bortner, and his attorney, Charles Calkins, represented Bortner. The Union presented a proposed 2004/2007 collective bargaining agreement but the parties reached no agreement at that meeting. Although the parties agree that Bortner requested a non-competition clause, they dispute whether Bortner made an additional proposal regarding reduced wage rates and whether the Union was willing to discuss either request at that time.

The parties met for a second time on March 10, 2005 at Bortner's offices. The Union's legal counsel, Bruce Endy, and President Joseph Sellers, Jr., William Dorward, and Walter Fredericks represented the Union. Jeffrey Bortner, Donna Bortner, and attorney Charles Calkins represented Bortner. Bortner made the following proposals to the Union: 1) limit the collective bargaining agreement to York County only; 2) reduce the job reporting requirement from $5,000 jobs to $10,000 jobs; 3) eliminate the Market Recovery portion of the contract in its entirety; 4) change those references to the Association in the contract for Bortner; 5) prevent employees from requesting layoffs if they go to work for other employers; 6) insert the company hours for work of 7 to 3:30; 7) eliminate overtime except for over 40 hours per week; 8) eliminate bonus wages for forepersons; 9) eliminate clause dealing with shift work; 10) provide a $.50/hour raise; 11) establish Wednesday as payday; 12) change contract to provide for time worked as opposed to time paid; 13) eliminate severance pay provision on layoff; and 14) agree to a trade secrets clause that would prohibit employees who leave from stealing the company's customers.

In response, the Union indicated that it could strike any reference to the SMCA because the new agreement would be a single-employer agreement between the Union and Bortner and that the grievance/arbitration procedure could be a single employer procedure. Mr. Dorward acknowledged that the proposed hours were acceptable and would fit within the existing contract language. Mr. Sellers tendered to Bortner a Residential/Light Commercial addendum in response to Bortner's wage rates concerns. The addendum provided for reduced rates of pay and other concessions to the basic labor agreement for sheet metal workers who worked on residential and light commercial construction. Although the Union indicated it would not agree to a trade secrets clause, it noted that the Pennsylvania Legislature had adopted the Uniform Trade Secrets Act the previous year.

No agreement was reached with respect to any aspect of the Union's proposed agreement from the first meeting. The Union maintains that Bortner did not attempt to discuss that proposal, while Bortner indicates that he was prepared to agree to certain provisions but that the Union terminated the meeting before he could do so. The parties adjourned the meeting and planned to meet again after Bortner had an opportunity to review the Residential/Light Commercial addendum.

The parties met for the third time on May 24, 2005. Mr. Sellers, Mr. Dorward, and Mr. Freidrich attended for the Union and Jeffrey and Donna Bortner and attorney Charles Calkins represented Bortner. Bortner indicated that it was not interested in the Residential/Light Commercial addendum and that it wanted to discuss a number of items that had been discussed at the second meeting. Bortner also wished to discuss a proposed non-competition clause where the Union would pay Bortner liquidated damages for employee violations and other major modifications to language that had been in the 2001/2004 collective bargaining agreement. Again the Union maintains that Bortner failed to express agreement to any provisions, while Bortner avers that it intended to, but the Union terminated the meeting before it could do so. The parties dispute whether the Union asked for a written copy of Bortner's additional proposals, but agree that Bortner did not give a written copy to the Union. Although the parties also characterize some other details from that meeting differently, they agree that Mr. Sellers terminated the meeting and that the parties had not reached an agreement.

Mr. Calkins subsequently wrote to Mr. Endy and asked the Union to consider four items: 1) a one year contract; 2) a non-disclosure agreement to be signed by all employees; 3) a 90-day probationary period for all employees during which employees would receive no benefits; and 4) working hours of 7 to 3:30 Monday through Friday. Mr. Endy responded on June 2, 2005 that the hours proposal was acceptable. However, Mr. Endy also advised Mr. Calkins that the Union intended to initiate the grievance procedure set forth in ...

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