Des Moines Mailers Union, Teamsters Local No. 358 v. NLRB

Des Moines Mailers Union, Teamsters Local No. 358 v. NLRB

Opinion

 [*768]  COLLOTON, Circuit Judge.

The Des Moines Mailers Union, Teamsters Local No. 358 ("the Union"), petitions for review of an order of the National Labor Relations Board ("Board") dismissing an unfair labor practice complaint against the Des Moines Register and Tribune Company ("the Register"). We deny the petition for review.

This dispute concerns negotiations over a new collective-bargaining agreement [**2]  between the Register and the Union to succeed an agreement that covered a period from July 19, 1998, through July 18, 2001. The expired agreement included a provision that the Union says guaranteed lifetime employment for 40 journeyman situation holders in the Register's mailroom. A journeyman "situation" is a full-time position with regular working days, regular off-days, and a workweek of 37= hours. The Register contends that the job guarantee expired with the old collectivebargaining agreement in July 2001. Given its view of the agreement, the Register insisted, as a condition of continued negotiations for a new collective-bargaining agreement, that the Union bargain about the number of full-time journeyman positions. The  [*769]  Union disagreed, and as of October 2001, the parties reached an impasse.

The General Counsel of the Board brought an unfair labor practice complaint, alleging that the Register violated Sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act as amended, 29 U.S.C. §§ 158(a)(1), (5), by bargaining to impasse on a "permissive" subject of bargaining. ] Parties are obliged to negotiate about "mandatory" subjects listed in § 9(a) of the [**3]  Act, that is, "rates of pay, wages, hours of employment, or other conditions of employment," 29 U.S.C. § 159(a), but they are not required to consider other subjects (labeled "permissive") during collective bargaining. E.g., NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342, 349, 2 L. Ed. 2d 823, 78 S. Ct. 718 (1958); Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 509 (2d Cir. 2002). In this case, if the number of journeyman situations constituted an accrued benefit under the expired agreement, and could not be changed in the future without the Union's consent, then the subject would be a "permissive" one about which the Union was not required to bargain. If, on the other hand, the number of situations guaranteed after July 2001 was unresolved by the expired agreement, then it would constitute a mandatory subject of bargaining. See 29 U.S.C. § 158(d); Pepsi-Cola Bottling Co. of Fayetteville, Inc., 330 N.L.R.B. 900, 902 n.19 (2000).

The General Counsel argued that Section 3.02(E) of the 1998-2001 collective bargaining agreement unambiguously guaranteed the number of full-time journeyman [**4]  situations in the Register's mailroom beyond the expiration of the agreement. An administrative law judge agreed, and issued a bench decision finding that the Register engaged in unfair labor practices. The Register filed exceptions to the initial decision, and the Board rejected the decision of the administrative law judge. The Board concluded that the General Counsel had failed to show that the number of journeyman situations was a permissive subject of bargaining, and it dismissed the complaint. Des Moines Register & Tribune Co., 339 N.L.R.B. 1035, 2003 N.L.R.B. LEXIS 474, 339 N.L.R.B. No. 130, No. 18-CA-16243-1, 2003 WL 22002145, at *4-5 (N.L.R.B. August 20, 2003).

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