Advanced Architectural Metals, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 2006

347 N.L.R.B. 1279 (N.L.R.B. 2006)

ADVANCED ARCHITECTURAL METALS
347 NLRB No. 111
1279
Advanced Architectural Metals, Inc., and United
Brotherhood of Carpenters Local #1780. Case
28–UC–231
August 31, 2006
DECISION ON REVIEW AND ORDER REMANDING
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On January 27, 2004, the Regional Director for Region
28 administratively dismissed the Employer’s unit clari-
fication petition, finding it appropriate to defer to an arbi-
trator’s award. Thereafter, in accordance with Section
102.67 of the Board’s Rules and Regulations, the Em-
ployer filed a timely request for review of the Regional
Director’s administrative dismissal. On March 25, 2004,
a three-member panel of the Board1 granted the Em-
ployer’s request for review.
Having carefully considered the matter, we find, con-
trary to the Regional Director, that this case involves
questions of statutory policy. Because questions of statu-
tory policy are within the province of the Board and not
an arbitrator, we find that the Regional Director erred in
dismissing the petition. Accordingly, we reinstate the
petition and remand this case to the Regional Director for
further processing of the petition, including conducting a
hearing.
The Employer is a fabricator and installer of ornamen-
tal metals. On May 30, 1997, the Employer signed a
Memorandum of Agreement recognizing the Union as
the exclusive bargaining representative of a unit of car-
penters, fabricators, machine operators, and laborers at
the Employer’s Nevada facilities. Shortly thereafter, the
Employer became a signatory to the 1995–1998 Master
Labor Agreement (MLA), a multiemployer agreement
with the Union. That agreement included language that
the agreement covered “all work” in the Employer’s
“warehouses, shops, or yards.” In 1997, the Employer
and the Union also signed an agreement that became
known as the “shop agreement.” Under the shop agree-
ment, shop employees and employees working outside of
the shop received different wages and benefits—the shop
employees were paid under the shop agreement while the
employees working outside of the shop were paid under
MLA. The MLA and the shop agreement were renegoti-
ated and extended. The last shop agreement expired on
March 15, 2003, but the MLA continued to exist through
June 2004.
In June 2003, the Union filed grievances contending
that the Employer had violated the MLA by not paying
the MLA wages and benefits to the shop employees after

1 Members Schaumber, Walsh, and Meisburg.
the March 2003 expiration of the shop agreement. The
Union took the position that, upon expiration of the shop
agreement, the wages and benefits of the shop employees
no longer were governed by the shop agreement, but
rather by the MLA, which was not due to expire until
June 2004. Shortly thereafter, the Employer filed this
unit clarification petition seeking to clarify that there is a
separate unit of its shop employees which excludes its
other employees working for the Employer under the
MLA. On June 19, 2003, the Regional Director dis-
missed the petition, finding that the issue of “whether the
[shop employees] unit should be clarified to exclude all
work covered by the [MLA]” is an issue of contract in-
terpretation. The Regional Director emphasized that
while the Board generally declines to defer to arbitration
awards in representation cases, it will defer when the
issue turns solely on contract interpretation. See St.
Mary’s Medical Center, 322 NLRB 954 (1997). The
Regional Director concluded that resolution of the con-
tractual dispute between the parties would resolve the
issue raised by the petition. He, therefore, deferred the
matter to the parties’ grievance-arbitration process.
On December 23, 2003, an arbitrator issued an award
finding that the shop employees were covered by the
MLA upon expiration of the shop agreement. The Re-
gional Director then revoked his June 19, 2003 deferral
letter and dismissed the petition, finding “no basis for not
deferring to the arbitrator’s award.”
In arguing for reinstatement of the petition, the Em-
ployer contends that deferral to the arbitral award is not
appropriate because the findings of the arbitrator impli-
cate Board law and policy. In arguing that the Board
should affirm the Regional Director’s dismissal of the
petition, the Union emphasizes that even before any col-
lective-bargaining agreement was entered into, the par-
ties agreed that all the employees—inside the shop and
outside of the shop—should be in the same unit, and that
they remain in the same unit. We find merit in the Em-
ployer’s contention.
The Board’s long-held view is that it generally does
not defer to arbitration in representation proceedings
except in the narrow class of cases where the sole and
dispositive issue is one of contract interpretation. See
Hershey Foods Corp., 208 NLRB 452, 457 (1974), rely-
ing on Hotel Employers Assn. of San Francisco, 159
NLRB 143, 147–148 (1966); Marion Power Shovel, 230
NLRB 576 (1977); St. Mary’s Medical Center, supra;
Verizon Information Systems, 335 NLRB 558, 560 fn. 9
(2001); see also McDonnell Douglas Corp., 324 NLRB
1202, 1204 (1997), on remand from McDonnell Douglas
Corp. v. NLRB, 59 F.3d 230 (D.C. Cir. 1995).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1280
Where resolution of the dispute turns on statutory pol-
icy, the Board will not defer to arbitration. In Marion
Power Shovel, 230 NLRB at 577–578, the Board empha-
sized the policy issues in these kinds of situations that are
appropriate for the Board’s determination:
The determination of questions of representation, ac-
cretion, and appropriate unit do not depend upon con-
tract interpretation but involve the application of statu-
tory policy, standards, and criteria. These are matters
for decision of the Board rather than an arbitrator.
Applying the above extant precedent, we find, contrary
to the Regional Director, that deferral to the arbitrator’s
award in the instant case is inappropriate because the
issues presented turn, at least in part, on statutory issues
and not solely on the interpretation of the parties’ con-
tract. The principal issue presented in this case is
whether the shop unit constitutes a separate appropriate
unit from employees outside of the shop who are covered
by the MLA. This issue actually involves several over-
lapping statutory questions. The MLA is a multiem-
ployer contract, while the shop agreement encompasses a
single employer unit. Thus, to place the Employer’s
shop employees in a multiemployer unit raises statutory
issues concerning the well-established difference be-
tween single-employer and multiemployer units. In addi-
tion, when the MLA was signed by the Employer in
1997, were the shop employees a part of a single unit
with employees outside of the shop or were they a part of
the MLA multiemployer unit? Assuming they were in-
cluded in the single unit described above, did the execu-
tion of the shop agreement in 1997 create a separate
smaller appropriate unit of shop employees, or was the
shop agreement a temporary “carve-out” agreement from
the MLA only for the life of the shop agreement? If the
shop agreement did create a separate appropriate unit of
shop employees, then upon expiration of the shop
agreement: (a) did the shop employees and the employ-
ees outside the shop remain in two separate units, with
the shop employees covered by the shop agreement, and
the employees outside of the shop covered by the MLA;
or (b) did the shop employees revert to, or accrete into, a
single unit with the employees outside of the shop and
become covered by the MLA?2

2 The Employer argues that this unit clarification petition raises is-
sues of accretion. The Union and the dissent argue that it does not. We
need not resolve that issue at this time. Suffice it to say that the issue
of whether accretion is involved and, if so, whether a lawful accretion
has occurred, are themselves questions of statutory policy for the Board
to resolve. Contrary to the dissent, our conclusion that these issues
involve questions of statutory policy is based on the application of
extant Board precedent to the facts presented to us, and not solely on
the assertions of any party.
Resolving these issues involves application of the
Board’s appropriate unit principles, community of inter-
est criteria, and accretion standards. These are the very
issues involving “determination of questions of represen-
tation, accretion, and appropriate unit” emphasized in
Marion Power Shovel, supra, that depend on the applica-
tion of “statutory policy, standards, and criteria.”3 The
issue of whether to clarify the shop employees unit as
requested in the Employer’s petition therefore is a deter-
mination that is “solely one for the Board to make.” See
Super Valu Stores, 283 NLRB 134, 135 (1987).
Unlike the dissent, we do not view this case as solely a
matter of contract interpretation to determine whether the
MLA covered the shop employees. Our dissenting col-
league’s argument that statutory issues are not implicated
is premised on his conclusion that the “unit includes all
the Employer’s metalworkers,” including the shop em-
ployees, and this conclusion in turn is based on the arbi-
trator’s analysis of the shop and MLA agreements be-
tween the parties. The threshold question to be ad-
dressed in this case is not whether the arbitrator’s analy-
sis of the unit issues is correct, but whether the issues
raised by the Employer’s petition turn, at least in part, on
the statute. Unquestionably they do. While the dissent
would rely on the arbitrator’s analysis in deciding this
unit issue, we adhere to the general rule that determina-
tions of questions of an appropriate unit are statutory
matters that only the Board can resolve. Accordingly,
we find the issues arising in this case are statutory mat-
ters for the Board’s determination and are not appropriate
for deferral to an arbitrator for resolution.
We therefore reverse the Regional Director’s dismissal
of the petition and remand this case to the Regional Di-
rector for reinstatement and processing of the petition.

3 In addition to these issues, the Employer argues that the shop
agreement is a collective-bargaining agreement under Sec. 9(a) of the
Act while the MLA is a prehire agreement under Sec. 8(f) of the Act.
The resolution of this matter depends on the application of statutory
policy, standards, and criteria, a task within the exclusive responsibility
of the Board. The dissent questions whether the 9(a) agreement vs. 8(f)
agreement issue bears on the ultimate issue before us. We shall leave
the 9(a) agreement vs. 8(f) agreement issue for the Regional Director’s
consideration and resolution on remand.
ADVANCED ARCHITECTURAL METALS 1281
ORDER
The Regional Director’s dismissal of the petition is re-
versed, the petition is reinstated, and the case is re-
manded to the Regional Director for further appropriate
action consistent with this Decision on Review.
MEMBER WALSH, dissenting.
This case fits squarely within the Board’s policy of de-
ferring to arbitration awards in representation proceed-
ings where the issue is solely one of contract interpreta-
tion. The Regional Director properly deferred to the ar-
bitrator’s award and dismissed the petition. Accordingly,
I dissent.
I.
The Employer fabricates and installs ornamental met-
als. The metals are fabricated in the Employer’s shop
and installed by the Employer’s employees at various
sites. About 60 percent of the Employer’s employees
work exclusively in the shop, while many of the rest
work both inside and outside the shop.
On May 30, 1997, the Employer recognized the Union
as the exclusive bargaining representative of the follow-
ing unit:
Included: All regular full-time and part-time journey-
man carpenters and apprentice carpenters, journeyman
and apprentice fabricators, machine operators, and all
laborers employed at the Employer’s Nevada facilities.
Excluded: Office clerical employees, guards, supervi-
sor [sic], and truck drivers.
Shortly thereafter, the Employer became a signatory to
the 1995–1998 Master Labor Agreement (MLA), a mul-
tiemployer agreement with the Union. Many of the or-
namental metals fabricated in the Employer’s shop are
installed on construction projects covered by the MLA.
By its express terms, the MLA “appl[ies] to all work
performed in the Employer’s warehouses, shops or yards
which have been particularly provided or set up to handle
work in connection with a job or project, covered by the
terms of this Agreement, and all of the production or
fabrication of materials by the Employer for use on the
projects will be subject to the terms and conditions of
this Agreement.” Section XV of the MLA sets forth a
grievance and arbitration procedure and states:

It is the purpose and the intent of the parties hereto that
all grievances or disputes arising between them over
the interpretation or application of the terms of this
Agreement shall be settled by the procedure set forth in
this section . . . .
About 30 days after becoming a signatory to the MLA,
the Employer and Union entered into an agreement
known as the “shop agreement,” which provided lower
wages and different benefits for employees while they
worked in the shop. The shop agreement covered “all
production and maintenance work in the plant or plants
of the Employer in the jurisdiction of the Southern Cali-
fornia Nevada Regional Council of Carpenters and its
affiliated Local Union #1780.” The agreement also con-
tained a section entitled “Outside the Shop,” which
stated:
When construction work is performed by the Employer
with employees covered by this agreement, the follow-
ing conditions will be observed: The current hourly
rate of the [MLA] shall include any and all contribution
for fringe benefits required to be made under [MLA] to
jointly administrated trust funds.
The net effect of the two agreements was that, when em-
ployees worked in the shop, they were paid according to the
shop agreement; when they worked outside the shop, they
were paid according to the MLA.
Both the MLA and the shop agreement were eventu-
ally renegotiated. The MLA was extended through 2001
and later through June 2004, and the shop agreement was
extended until March 2003.
In December 2002, the Union gave notice to the Em-
ployer that it intended to terminate the shop agreement
and to negotiate a new agreement. During the negotia-
tions that followed, the Union stated that if a new shop
agreement were not reached, the MLA would cover the
shop employees. Ultimately, the parties failed to reach a
new agreement, and the shop agreement expired on
March 15, 2003.
After the shop agreement expired, the Employer con-
tinued to apply the wage and benefit provisions of the
expired agreement to work performed in the shop. In
June 2003, the Union filed several grievances contending
that the Employer had violated the MLA by not paying
MLA wages and benefits to shop employees.
On June 9, 2003, the Employer filed the instant peti-
tion, seeking to clarify the unit to include all production
and maintenance work but to exclude all work covered
by the MLA. In other words, the Employer seeks to ex-
clude the shop employees from the MLA unit.
On June 19, 2003, the Regional Director deferred reso-
lution of the issues raised in the petition to the contrac-
tual grievance-arbitration procedure. The Regional Di-
rector stated: “The issue presented, whether the unit
should be clarified to exclude all work covered by the
[MLA], is one of contract interpretation. Resolution of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1282
the contractual dispute will resolve the issues raised by
the petition filed herein.”
On December 23, 2003, after a hearing at which both
the Employer and the Union participated, Arbitrator
Lawrence Zigman issued an award finding that the MLA
covered the shop employees. The arbitrator reached this
conclusion after examining the language of the MLA and
extrinsic evidence of the parties’ intent. Essentially, the
arbitrator found that when the shop agreement expired,
“the parties reverted back to their status as before,” and
therefore the shop employees were covered by the
MLA.1
The Regional Director deferred to the arbitration
award and dismissed the Employer’s petition. The Re-
gional Director noted that the arbitrator “rejected accre-
tion” as a basis for resolving the dispute and “instead
relied upon his interpretation of the contract.” The Em-
ployer filed a request for review, which the Board
granted.
II.
Although deferral to arbitration in representation pro-
ceedings is infrequent, the Board has plainly stated that it
“will find deferral appropriate when the resolution of the
issues ‘turns solely on the proper interpretation of the
parties’ contract.’” Central Parking System, 335 NLRB
390, 391 (2001), quoting St. Mary’s Medical Center, 322
NLRB 954 (1997); see also McDonnell Douglas Corp.,
324 NLRB 1202, 1204–1205 (1997). In such cases,
statutory policy is not implicated, and therefore the
Board will honor the parties’ agreed-upon procedures for
resolving contractual disputes. This is such a case.
The Employer’s petition seeks to have the shop em-
ployees excluded from coverage by the MLA. That issue
can and should be resolved by examining and interpret-
ing the MLA, which is precisely what the arbitrator did.
First, he considered the language of the agreement. He
noted that section II of the MLA, entitled “Coverage,”
states that the agreement “shall apply to all work per-
formed in Employer’s . . . shops . . . .” However, in the
2001–2004 MLA, the “Recognition” section of the
agreement states that, upon a showing that a majority of
an employer’s shop employees have designated the Un-
ion as their collective-bargaining representative, the indi-
vidual employer shall agree to negotiate all terms and

1 The arbitrator also noted “the Employer’s contention that I must
consider” whether applying the MLA to the shop employees would
effectively “accrete” the shop employees to the unit. The arbitrator
stated that he “did not find the employer’s characterization of the un-
ion’s action as constituting an accretion [to be] persuasive.” He then
stated that “even [assuming] arguendo, that the employer has raised an
issue of accretion,” a bargaining unit including both the field and shop
employees would not be repugnant to the Act.
conditions of employment appropriate for their shop.
Based on that conflict in the language, the arbitrator con-
cluded that the MLA was not clear and unambiguous as
to whether the parties intended the MLA to cover the
shop employees.
Applying established rules of contract interpretation,
the arbitrator then considered extrinsic evidence of the
parties’ intent.2 The arbitrator observed that the MLA
covers shop employees of other employers in the mul-
tiemployer unit and that the shop work is “within the
description of the jurisdiction of the MLA.” He further
observed that the “Recognition” language quoted above
was not added to the MLA until 2001, well after the Em-
ployer became a signatory. Finally, the arbitrator relied
on the testimony of the chief negotiators of the MLA,
both labor and management, who testified that the Rec-
ognition language was intended to apply prospectively
only, to new employers and not to existing signatories.
The arbitrator concluded that the evidence demonstrated
that the parties intended the Employer’s shop employees
to be covered by the MLA. I would defer to that deci-
sion.
My colleagues state that the “principal issue” in this
case is “whether the shop unit constitutes a separate ap-
propriate unit.” They conclude that resolving that issue
requires application of accretion and community-of-
interest principles. I disagree.
First, although the Employer argues that the arbitrator
effectively accreted the shop employees to the MLA unit
and that accretion here would be repugnant to the Act,
the Employer’s assertion that the case involves accretion
does not make it so. The arbitrator found that here,
unlike in accretion cases, the Employer recognized the
Union in May 1997—before the shop agreement was
negotiated—as the representative of “all” the Employer’s
employees. The arbitrator therefore rejected the Em-
ployer’s assertion that the shop employees were being
“added” to the unit upon the expiration of the shop
agreement.
Contrary to the Employer’s argument, the arbitrator’s
statement that including the shop employees in the unit
would not be repugnant to the Act “even [assuming] ar-
guendo” an accretion issue does not show that his award
turns on accretion principles. The award makes plain
that the arbitrator did not resolve the case based on accre-
tion, but addressed accretion simply because the Em-
ployer raised it.3 The dispositive issue in the case, and

2 See, e.g., Diplomat Envelope Corp., 263 NLRB 525, 536 (1982),
enfd. mem. 760 F.2d 253 (2d Cir. 1985).
3 See award, p. 19 (noting “the employer’s contention that I must
consider the ‘accretion issue’”), and p. 20 (“it is the employer and no
one else who has characterized this issue as an accretion”). My col-
ADVANCED ARCHITECTURAL METALS 1283
the one on which the arbitrator based his decision, was
one of contract interpretation.4
Second, although my colleagues characterize this case
as turning on community-of-interest and appropriate unit
principles, there is no basis here for questioning the ap-
propriateness of a unit that includes the shop employees.
The unit includes all of the Employer’s metal workers, as
it did before the parties entered into the shop agreement.5
The shop employees are not part of a newly established

leagues hold that the Board is presented with a “question of statutory
policy,” namely “whether accretion is involved,” because the parties
are at odds over the issue. I strongly disagree. I would not allow the
Employer to turn a contractual issue into a statutory one and supplant
the parties’ dispute resolution procedures simply by asserting, colorably
or not, that the case involves accretion.
4 My colleagues cite several cases in which the Board declined to
defer to arbitration in representation cases. In those cases, deferral was
inappropriate because the arbitrator’s findings were tantamount to
applications of statutory policy or because the case could not be re-
solved by applying contract principles alone. See, e.g., Hershey Foods
Corp., 208 NLRB 452, 457 (1974), enfd. 506 F.2d 1052 (3d Cir. 1974)
(arbitrator’s award, which directed the employer to recognize the union
as the representative of certain employees, was predicated on a finding
that those employees were accreted to an existing unit); Marion Power
Shovel, 230 NLRB 576 (1977) (employer was faced with two unions’
conflicting claims to represent the same employees at employer’s ex-
panded facilities); Hotel Employers Assn. of San Francisco, 159 NLRB
143, 148 (1966) (question concerning representation raised by unions’
competing claims); compare St. Mary’s, supra at 954 (where resolution
of the case required both contract interpretation and accretion analysis,
the Regional Director properly deferred to arbitrator’s interpretation of
the contract but conducted an independent accretion analysis). This
case, by contrast, is purely one of contract.
5 Contrary to my colleagues’ assertion, this finding is not based on
the arbitrator’s analysis of a statutory “unit issue.” The arbitrator did
not perform a statutory analysis, and there was no need to do so. He
properly confined his analysis to interpreting the contract.
job classification, nor is there any allegation that their
duties and responsibilities have changed. See, e.g., Un-
ion Electric Co., 217 NLRB 666, 667 (1975) (describing
circumstances under which unit clarification is appropri-
ate).6 In sum, this case does not turn on principles of
accretion or community of interest, and deferral is there-
fore appropriate.
III.
The parties have agreed on a grievance and arbitration
process to resolve their contractual disputes. They util-
ized that process in the present case to determine whether
the MLA covered the shop employees—the issue that is
now before the Board. Where, as here, resolution of the
issue does not implicate statutory policy, the Board’s
procedures need not and should not supplant the parties’
contractual dispute resolution procedure. The Regional
Director correctly deferred to the arbitrator’s award and
dismissed the petition.

6 My colleagues correctly observe that the MLA is a multiemployer
agreement but that the expired shop agreement is not. That difference,
however, does not lead to the conclusion that there are “statutory is-
sues” involved in determining whether the MLA covers the shop em-
ployees. As stated above, there is no basis for questioning the appro-
priateness of a multiemployer unit that includes all of the Employer’s
metalworkers.
The Employer also argues that the shop agreement was a 9(a) agree-
ment, while the MLA is a 8(f) agreement. My colleagues state that
resolving this matter depends on the application of statutory policy.
However, the issue here is whether the shop employees are covered by
the MLA. Whether the MLA was a 9(a) or a 8(f) agreement does not
bear on that issue. The Respondent’s conclusory statement that the
MLA was a 8(f) agreement is insufficient to inject a genuine issue of
statutory policy into the case.