Electrical Workers Ibew Local 113 (Collier Electric)

National Labor Relations Board - Board Decisions

Oct 4, 1989

296 N.L.R.B. 1095 (N.L.R.B. 1989)

ELECTRICAL WORKERS IBEW LOCAL 113 (COLLIER ELECTRIC) 1095
International Brotherhood of Electrical Workers,
Local No. 113 and Collier Electric Company.
Case 27-CB-2340
October 4, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT , HIGGINS , AND DEVANEY
On March 11 , 1987 , Administrative Law Judge
Clifford H. Anderson issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent and Amici
Curiae International Brotherhood of Electrical
Workers, AFL-CIO and National Electrical Con-
tractors Association filed answering briefs.'
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings, and
conclusions as modified and to adopt the recom-
mended Order.
1. FACTUAL FINDINGS
The complaint alleges that the Respondent vio-
lated Section 8(b)(1)(B ) and (3) of the National
Labor Relations Act by unilaterally submitting un-
resolved bargaining issues between itself and the
Employer, Collier Electric Company (Collier), to
the Council on Industrial Relations (CIR) for the
Electrical Industry at a time when that body had
not been selected by Collier as its representative
for the purposes of collective bargaining or griev-
ance adjustment.2
The operative facts, which are set forth in fur-
ther detail in the judge 's decision , are essentially
undisputed . Collier, an electrical contractor in the
building and construction industry , 3 has been a
member of the Southern Colorado Chapter of the
National Electrical Contractors Association
(NECA) for many years and, pursuant to a signed
Letter of Assent, has since 1977 authorized the
Southern Colorado Chapter of NECA to be its
bargaining representative .4 The last contract to
which Collier was bound under this Letter of
Assent was effective from June 1, 1985, to May 31,
1986.
The NECA contract provides in article I that
either party desiring to change or terminate the
agreement must notify the other party in writing at
least 90 days prior to the anniversary date of the
contract . Article I further provides that any unre-
solved issues in negotiations over proposed changes
may be submitted either jointly or unilaterally to
the CIR by the parties for interest arbitration.5 The
CIR is an interest arbitration panel composed of 12
members, 6 appointed by NECA and 6 appointed
by the IBEW . CIR rulings are made only by unani-
mous decision . The CIR's rules for submitting
cases for adjudication provide that unilateral sub-
mission will be accepted by the CIR only when
"[t]he collective bargaining agreement between the
parties contains `Council Clauses,"' the submitting
party has engaged in bargaining , and the submitting
party has notified the other party of its intent to
submit the case to the CIR. The CIR's rules fur-
ther provide that "where no multi-employer bar-
gaming agent exists, the Council may elect to
accept, upon receipt of a written stipulation, a case
involving an individual Employer and a Local
Union of the IBEW."
On December 23, 1985, Collier timely revoked
the bargaining authority it had granted NECA and
notified the Respondent that it had done so. In its
letter to the Respondent , Collier also stated, "this
letter will serve as notice . . . that [Collier] hereby
terminates any and all of its obligations under the
Agreement , effective the earliest possible appropri-
ate date."
In early January 1986,6 Collier's president, Rich-
ard Collier, and marketing manager , Ralph Lufen,
met with the Respondent 's business manager, Mar-
shall Johnson. At that time , Collier informed John-
son that Collier's withdrawal from multiemployer
bargaining was not intended to eliminate union rep-
resentation of employees but rather to facilitate in-
dependent bargaining . Johnson responded that indi-
i The Respondent 's motion to consolidate this case with several other
pending Board cases is denied
2 The complaint also alleges that certain other bargaining conduct by
the Respondent violated Sec 8(b)(3) The judge, however, dismissed
those allegations and the General Counsel has not excepted to the judge's
dismissal
a Although this case arises in the construction industry, the complaint
alleges, and the answer admits , that the Respondent is a Sec. 9(a) bargain-
ing representative of Collier 's employees
4 The Letter of Assent states.
In signing this Letter of Assent , the undersigned does hereby authorize
Southern Colorado Chapter , NECA as its collective bargaining repre-
sentative for all matters contained in or pertaining to the current ap-
proved inside labor agreement between the Southern Colorado Chapter,
NECA and Local 113, IBEW . This authorization , in compliance with the
current approved labor agreement , shall become effective on the Ilth
day of July , 1977 Shall [sic ] remain in effect until terminated by the un-
dersigned employer giving written notice to the Southern Colorado
Chapter , NECA and to the Local Union at least one hundred fifty (150)
days prior to the then current anniversary date of the aforementioned ap-
proved labor agreement
s Specifically, art I provides , inter alia-
Section 1.2 (a) Either party desiring to change or terminate this
Agreement must notify the other, in writing, at least 90 days prior to
the anniversary date
d) Unresolved issues in negotiations that remain on the 20th of the
month preceding the next regular meeting of the Council on Indus-
trial Relations , may be submitted jointly or unilaterally by the parties
to this Agreement to the Council for adjudication prior to the anni-
versary date of the Agreement. . .
B All dates refer to 1986 unless otherwise stated.
296 NLRB No. 144
1096 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
vidual employers would not receive better terms
than those in the NECA contract.
In February, the Respondent sent Collier a letter
proposing various amendments to the contract. The
parties met on March 20 and, at that time, estab-
lished bargaining procedures and discussed the Re-
spondent's proposed amendments . After that meet-
ing, Collier sent the Respondent a copy of its pro-
posed contract. The parties met on April 9 and dis-
cussed Collier's proposals. At that meeting, John-
son informed Collier that the Respondent intended
to submit unresolved bargaining issues to the CIR.
Collier responded by giving the Respondent a writ-
ten statement of position opposing any submission
to the CIR on the grounds that, since the agree-
ment was being terminated, the CIR did not have
"jurisdiction or authority to prescribe the terms of
any future agreement between Collier and Local
113." The statement also provided that "Collier
will not participate in any submission to the Coun-
cil and will not recognize or be bound by any deci-
sion issued by the Council."
By letter dated April 14, Collier notified the CIR
of its opposition to the submission of any dispute
by the Respondent. On April 17, the Respondent
sent Collier a letter stating that it intended to
submit issues to the May session of the CIR and in-
vited Collier to join in the submission. The third
bargaining session was held on April 23. At that
meeting , substantive contract proposals were dis-
cussed as well as the parties' positions with respect
to the CIR submission . The Respondent continued
to assert its right to submit unresolved issues to the
CIR and Collier reiterated its position that the CIR
had no authority to resolve such issues . On May 1,
the Respondent unilaterally submitted five "items
in dispute" to the CIR.7
The fourth and final bargaining session was held
on May 8. At that meeting, the parties discussed
the Respondent's submission to the CIR. In light of
the differing positions taken regarding the CIR, the
parties agreed that it would be unprofitable to con-
tinue bargaining. By letter dated May 13, Collier
notified the Respondent that "in the event that
Local No. 113 becomes amenable to further negoti-
ations, we stand ready to meet with you."
The CIR considered the Respondent's submis-
sion at its May meeting. The Respondent presented
evidence at the CIR proceedings; however, Collier
did not participate. Instead , Collier notified the
CIR that it objected to the Respondent' s unilateral
submission and stated that it would not be bound
by any CIR decision. On May 22, the CIR issued a
7 The five items were . ( 1) wage increase ; (2) apprenticeship training
contributions, (3) safety language ; (4) deletion of a "favored nations"
clause ; and (5) contract length
ruling providing for a 1-year renewal of the cur-
rent contract with the following changes: the "fa-
vored nations" clause deleted; the wage increase
granted; the interest arbitration language modified
so that a submission could be made "by mutual
agreement only"; and the grievance arbitration lan-
guage modified so that grievances unresolved by
Collier and the union representatives "may be sub-
mitted jointly or unilaterally by the parties" to the
CIR. The Respondent's proposed changes in ap-
prenticeship training contributions and safety lan-
guage were rejected.
On June 4, Collier wrote the Respondent indicat-
ing that it had "unofficially" heard of the CIR's
ruling and that it did not consider itself bound by
the decision. The letter requested further negotia-
tions. No further negotiations were held, however,
and apparently Collier has not implemented the
contract imposed by the CIR decision. There is no
evidence that the Respondent has taken any action
to enforce the CIR decision.
II. THE JUDGE'S DECISION
The judge, in considering the complaint allega-
tions, concluded that the Respondent did not vio-
late the Act by submitting the unresolved bargain-
ing issues to the CIR for determination because
Collier, despite its timely withdrawal from NECA,
was bound to the most recent contract which pro-
vided for submitting unresolved bargaining issues
to the CIR. In so finding, the judge relied on the
Eleventh Circuit's decision in Sheet Metal Workers
Local 57 Welfare Fund v. Tampa Sheet Metal, 786
F.2d 1459 (11th Cir. 1986), in which the court held
that an individual employer's withdrawal of bar-
gaining authority from a multiemployer representa-
tive does not relieve the employer of its contrac-
tual responsibilities under an existing interest arbi-
tration clause.8 The General Counsel, relying on
Sheet Metal Workers Local 59 (Employers Assn. of
Roofers), 227 NLRB 520 (1976), had argued that
there had to be a finding of a "clear and unmistak-
able waiver" of bargaining authority before Collier
could be bound to the interest arbitration provision.
The judge rejected that argument, noting that the
Eleventh Circuit did not apply a clear and unmis-
takable waiver standard in Tampa Sheet, supra. The
judge further found Sheet Metal Workers Local 59,
supra, inapposite because there the union was at-
tempting to invoke dispute resolution procedures in
9 The judge also relied on Sheet Metal Workers Local 420 v. Huggins
Sheet Metal, 752 F.2d 1473 (9th Or 1985), in which the court held that
an interest arbitration clause survived the expiration of a collective-bar-
gaining agreement and thus required a single employer who had with-
drawn from the multiemployer association to arbitrate the terms and con-
ditions of a subsequent agreement after the parties reached an impasse
ELECTRICAL WORKERS IBEW LOCAL 13 (COLLIER ELECTRIC)
order to perpetuate, against an employer's will,
new contract dispute resolution procedures. He
found that here, in contrast , the Union was not at-
tempting to obtain new contract dispute resolution
procedures,9 but rather to use an arbitration proce-
dure already provided for in the current contract.
Because the contract language did not by its terms
relieve Collier of its obligations contained in the in-
terest arbitration provision , the judge found that
the Respondent did not violate the Act by submit-
ting the unresolved bargaining issue to the CIR. He
accordingly recommended dismissal of the com-
plaint.
III. CONTENTIONS OF THE PARTIES
The General Counsel excepts to the judge's deci-
sion, asserting that the interest arbitration clause
here provides that the CIR serves as the collective-
bargaining representative of the employers who are
bound to the clause . Because the right to choose
one's bargaining representative is a fundamental
right that can be relinquished only by clear and un-
mistakable waiver , the General Counsel asserts that
in order to bind Collier to the interest arbitration
provision , there must be a clear and unmistakable
expression by Collier of willingness to accept the
CIR as its collective-bargaining representative, i.e.,
a clear and unmistakable waiver of its right to
select its own bargaining representative to negoti-
ate terms of a new collective -bargaining agreement.
The General Counsel asserts that the 1985-1986
collective -bargaining agreement does not evidence
such a waiver , however , because the interest arbi-
tration provision applies to "the parties to this
Agreement." The General Counsel argues that this
language does not clearly and unmistakably cover
a withdrawn employer because the parties to the
agreement were the Respondent and the Southern
Colorado Chapter of NECA. If the drafters of the
provision intended the interest arbitration provision
to apply to withdrawn employers , the General
Counsel asserts , they would have used more pre-
cise language to evidence such an intent . Because
the contract language does not support a clear and
unmistakable waiver, and no extrinsic evidence was
presented to support a finding of clear and unmis-
takable waiver , no such waiver exists . Further-
more, the General Counsel asserts that , even if
IBEW and NECA , the parties to the agreement,
contend that the interest arbitration language was
intended to cover individual employers who have
withdrawn from NECA, their expression of intent
is ineffective because NECA did not have author-
9 The decision of the CIR provides for future interest arbitration only
at the parties ' mutual consent . Thus, the decision does not saddle the par-
ties with a perpetual cycle of binding interest arbitration
1097
ity to waive Collier's choice of collective- bargain-
ing representative for any terms of a successor
agreement which Collier would be negotiating as
an individual employer after timely withdrawal
from NECA. The General Counsel finally asserts
that the court cases relied on by the judge offer
little guidance here, because determining whether
Collier was bound to the interest arbitration provi-
sion turns on the specific contract language here,
which was not before the courts in either Tampa
Sheet, supra, or Huggins, supra.
The Respondent asserts that Collier was a party
to the collective-bargaining agreement and that nei-
ther its withdrawal from the multiemployer bar-
gaining unit nor its termination of the agreement
relieves Collier of its obligations under the existing
contract. The Respondent further asserts that the
CIR acts as an arbiter of disputes and not as a col-
lective-bargaining representative for any party and
that therefore submission of a dispute to the CIR
does not coerce any party in its selection of a col-
lective-bargaining representative . The Respondent
finally asserts that interest arbitration enjoys the
same presumption of validity that rights arbitration
does under the Steelworkers trilogy' ° and that
therefore the interest arbitration provision provided
for in the contract should be favored.
The International Brotherhood of Electrical
Workers, AFL-CIO and the National Electrical
Contractors Association, joint Amici Curiae in this
case in light of their interest in the legal status of
decisions issued by their joint body, the CIR, assert
that interest arbitration provisions are proper and
enforceable under Section 301 of the Labor Man-
agement Relations Act. In this regard , they assert
that under the Steelworkers trilogy arbitration is the
preferred method of settling disputes . Furthermore,
the amici point out, while interest arbitration provi-
sions may be permissive subjects of bargaining,
they are, nevertheless , contractual obligations that
are enforceable in court . Finally, the amici assert
that the interest arbitration clause here was intend-
ed by the parties to the agreement to survive an in-
dividual employer's withdrawal from multiemploy-
er bargaining.
IV. ANALYSIS AND CONCLUSIONS
For the following reasons , we agree with the
judge's dismissal of the complaint allegations.
This case presents us with the novel question of
whether a union violates Section 8 (b)(1)(B) and (3)
of the Act by submitting unresolved bargaining
10 Steelworkers Y. American Mfg. Co., 363 U S . 564 (1960); Steelworkers
v. Warrior & Gulf Navigation , 363 U.S. 574 (1960); Steelworkers v. Enter-
prise Corp, 363 U S . 593 (1960).
1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
issues to interest arbitration pursuant to a multiem-
ployer contract after an employer has timely with-
drawn from the multiemployer bargaining associa-
tion . In resolving this question , we are mindful that
the purpose of the Act is to foster collective bar-
gaining between employers and employees ' collec-
tive-bargaining representatives . Parties are expected
and encouraged to abide by the agreements
reached through the bargaining process . However,
employers as well as employees also have an im-
portant statutory right to select their own collec-
tive-bargaining representatives . To accommodate
these interests , we have developed the following
framework for analysis to determine whether a
union violates the Act by submitting unresolved
bargaining issues to interest arbitration pursuant to
the terms of a multiemployer contract after an em-
ployer has timely withdrawn from the multiem-
ployer bargaining association that negotiated the
contract on behalf of the employer.
First , we shall consider whether there is a rea-
sonable basis in fact and law for the union's submis-
sion of unresolved bargaining issues to interest arbi-
tration . In determining whether there is, we will
decide whether the parties' collective-bargaining
agreement arguably still binds a single employer,
who has timely withdrawn from the multiemployer
association , to the interest arbitration provision. If
the collective-bargaining agreement at least argu-
ably binds the employer to the arbitration provi-
sion, the union will be free to seek enforcement of
its contractual rights by submitting the unresolved
bargaining issues to interest arbitration, and by pur-
suing a Section 301 suit in court , without violating
Section 8(b)(3) or Section 8(b)(1)(B) of the Act. On
the other hand , if the agreement does not even ar-
guably bind the employer to the arbitration provi-
sion , i.e., the contract contains language explicitly
stating that an employer who has withdrawn from
the multiemployer association is not bound to inter-
est arbitration , then the union's submission of the
unresolved bargaining issues to interest arbitration
would constitute bad-faith bargaining and coercion
of the employer in the selection of its collective-
bargaining representative , in violation of Section
8(b)(3) and Section 8(b)(1)(B).11
i i This is the point of primary disagreement between our dissenting
colleague and us The Chairman , in promoting the statutory right of an
employer to select its collective-bargaining representative , would prohibit
a union from pursuing interest arbitration unless the employer is found to
have clearly and unmistakably waived its statutory right in agreeing to
interest arbitration provisions On the other hand , to promote a funda-
mental purpose of the Act , that is, to foster stability in collective bargain-
ing and , toward that end, to encourage parties to collective -bargaining
agreements to fulfill their contractual obligations , we will not prohibit a
union from pursuing interest arbitration, including instituting court action
to enforce an interest arbitration provision , if the employer is at least ar-
guably bound by the terms of the contract to its interest arbitration pro-
vision Thus , in light of our decision that the Board should stay its hand
In adopting this framework for analysis, our
premise is that collective bargaining should be fos-
tered and that when parties have bargained for and
reached an agreement , fairness requires that they
be allowed to enforce it . Consequently , when par-
ties have agreed on an interest arbitration provi-
sion , even though that provision is a nonmandatory
subject of bargaining that , under Tampa Sheet
Metal Co., 12 can lawfully be repudiated by either
party , the parties nevertheless retain their right to
seek court enforcement of the provision in a Sec-
tion 301 suit , without violating Section 8 (b)(3) or
Section 8(b)(1)(B).13
The presence of an interest arbitration provision
in a contract does not, however , relieve employers
and unions of their responsibilities to engage in
good-faith collective bargaining under Section
8(a)(5) and Section 8(b)(3). On the filing of an ap-
propriate charge , the Board , at all times , has the
authority to review the bargaining process and de-
termine whether the parties have bargained in good
faith . Consequently , when parties to a contract
containing an interest arbitration provision bargain
for a renewal agreement , the Board will still
review their bargaining to ensure that both parties
have negotiated in good faith prior to the submis-
sion of the unresolved issues to arbitration . If, how-
ever , after good -faith but ultimately unsuccessful
bargaining , a party chooses to pursue its contrac-
tual rights and submit the matter to interest arbitra-
tion (either because the parties have reached an im-
passe or because the contract provides for submis-
sion of the dispute to interest arbitration at that
time), the party will not violate Section 8 (b)(3) or
Section 8(a)(5) by submitting the matter to interest
arbitration.
By applying this framework for analysis, we
leave to the courts' determination the question of
whether an employer is bound to the interest arbi-
tration provision. In doing so, we recognize that
we leave a potential unfair labor practice question
unresolved, because, if the employer is found by
the court not to be bound to the provision , in ret-
rospect the union 's pursuit of the matter to interest
arbitration might have been found by the Board to
have been an unfair labor practice . The Board,
however , has the discretion to withhold its author-
ity to adjudicate alleged unfair labor practices
when doing so effectuates national labor policy.
Indeed , under appropriate circumstances it is the
Board 's established policy to defer unfair labor
practice issues to the dispute resolution machinery
from resolving disputes under such circumstances , unlike our colleague,
we do not reach the merits of this case.
12 288 NLRB 322 (1988).
18 Id at 322.
ELECTRICAL WORKERS IBEW LOCAL 13 (COLLIER ELECTRIC)
provided for in a collective -bargaining agreement
voluntarily entered into by an employer and a
union . Allowing parties to seek resolution of dis-
putes under the provisions of their collective-bar-
gaining agreements furthers the policy of collective
bargaining under the Act.14
Deferring here , and leaving to the courts the
question of whether an employer is bound to the
contract, effectuates the purposes and policies of
the Act. In finding that policy reasons support not
exercising our authority here and deferring instead
to the courts as the appropriate forum for deter-
mining whether the employer is bound to the inter-
est arbitration provision , it is important to observe
that interest arbitration has, at most , an attenuated
connection to the purposes and policies of the Act.
Accordingly, interest arbitration has been found to
be a permissive subject of bargaining,15 and thus it
is not an unfair labor practice to repudiate such a
provision . 16 The Board has specifically found that
the remedy for such a repudiation lies with the
courts, not with the Board.'' Thus, if a union
charges an employer with violating the Act by re-
fusing to abide by an interest arbitration provision,
the Board will stay its hand . In the same way, we
believe it should not be an unfair labor practice for
a union to pursue adherence to such a provision
provided that the employer is arguably bound to it.
Thus, under appropriate circumstances , where an
employer charges a union with violating the Act
by pursuing adherence to an interest arbitration
provision, we will again stay our hand . Further-
more , courts are particularly well suited for decid-
ing whether an employer is contractually bound to
an interest arbitration provision .' 8 As the Supreme
14 United Technologies Corp., 268 NLRB 557 (1984), Collyer Insulated
Wire, 192 NLRB 837 (1971). See also Spielberg Mfg. Co, 112 NLRB 1080
(1955)
's NLRB v Columbus Printing Pressmen, 543 F 2d 1161 (5th Cir 1976)
° Tampa Sheet Metal Co, supra
7 Id
18 Indeed , several courts have already made such determinations See
Sheet Metal Workers Local 57 Welfare Fund v Tampa Sheet Metal Co,
786 F 2d 1459 (11th Cir 1986); Sheet Metal WorAers Local 420 v. Huggins
Sheet Metal, 752 F 2d 1473 (9th Cir 1985)
Our dissenting colleague expresses concern that if a court binds an
employer to an interest arbitration provision where the Board itself
might have come to a different result , then the court will in effect
have imposed a result that the Board might have found to be a viola-
tion of the employer 's right to select its collective-bargaining repre-
sentative But the risk of a "wrong" result is inherent in any dispute
resolution procedure-judicial, administrative , or arbitral While we
do not mean to minimize that risk , it is nevertheless one that seems
to us to be worth taking in the interest of stability in collective bar-
gaining , adherence to contracts freely entered into, and avoiding
multiple and possibly inconsistent adjudications of the same issue As
our dissenting colleague concedes , courts have applied the "clear
and unmistakable" waiver standard in cases arising under Sec 301
The parties are free to present to the courts their arguments over the
applicability of that standard in cases of this kind In any event, we
are not reluctant to put issues of contract interpretation in the capa-
ble hands of a court
1099
Court stated in interpreting the Steelworkers trilogy,
"whether a collective-bargaining agreement creates
a duty for the parties to arbitrate the particular
grievance . . . is undeniably an issue for judicial
determination ." AT&T Technologies v. Communica-
tions Workers, 475 U.S. 643 , 649 (1986).19
Our decision to defer in this case does not imply
broad deferral to the courts to adjudicate unfair
labor practices . Rather, we defer here because the
underlying controversy is primarily contractual.
Sheet Metal Workers Local 20 v. Baylor Heating,
supra . The clause in question is clearly the result of
collective bargaining and it is reasonable to assume
that , by agreeing to that clause , the multiemployer
association (and consequently the Charging Party
Employer) may have in return secured a contrac-
tual provision beneficial to it . In this case, it would
be inequitable to the parties to the contract to view
the contract clause disputed herein in isolation, es-
pecially when this single provision of the contract
does not directly involve a mandatory subject of
bargaining . To do so would ignore the realities of
what goes into the consummation of an entire col-
lective-bargaining agreement . In short , the issue
here is primarily a contractual one; it is the courts,
not the Board, that are charged with determining
the enforcement of provisions of contracts that do
not involve mandatory subjects of bargaining.
Allied Chemical Workers Local 1 v. Pittsburgh Plate
Glass Co., 404 U.S. 157, 184-188 (1971).
As indicated , deferral might not be appropriate
in every case . It would be limited to circumstances
where there is a reasonable basis in fact and law
for the union 's submission of the unresolved issues
to interest arbitration . Deferring to the courts in
the limited circumstances where a contract argu-
ably binds an employer to an interest arbitration
provision will obviate the problem of conflicting
Board and court decisions and will instead lead to
uniformity of results.20
19 See also Sheet Metal Workers Local 20 v Baylor Heating, 877 F.2d
547 (7th Cir 1989), in which the court, in denying the Board 's request
for a stay of the appeal , noted that the case involved the company's con-
tractual duty to interest arbitrate The court stated that "when the under-
lying controversy is primarily contractual, the Board should defer to the
courts " Id at 551
20 We do not intend to suggest that the Board is not competent to
decide the contract matters at issue here We simply believe that, where
the issue is primarily contractual concerning a single provision of the
contract and does not involve a mandatory subject of bargaining, and the
totality of the union 's conduct is seeking to enforce its contractual rights
in an arbitral or judicial forum , it effectuates the policies of the Act for
us to stay our hand . We thus distinguish this situation from those involv-
ing, for example , an alleged violation of a no -strike clause or a unilateral
change , where the issues directly involve mandatory subjects of bargain-
ing or alleged interference with individual employees ' basic Sec. 7 rights
Finally , we do not intend to minimize the importance of the statutory
right of a party to select its own representatives Rather , we believe our
decision acknowledges and accommodates this right In this connection,
Continued
1100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Supreme Court's decision in Bill Johnson's
Restaurants v. NLRB, 461 U.S. 731 (1983), supports
our decision that the Union should be allowed to
pursue its contractual remedies in court. In Bill
Johnson's, the Court held, inter alia, that if a law-
suit has a reasonable basis in fact or law, the Board
may not enjoin the suit, but must allow it to pro-
ceed. Here, the Union has an arguably meritorious
claim in both fact and law that Collier is bound to
the interest arbitration provision. Thus, we will not
interfere with the Union's right to pursue its
claim.21
We find that the instant contract provision,
which allows for submission of unresolved bargain-
ing issues to interest arbitration by the "parties to
this Agreement" could, arguably, be interpreted as
binding Collier to that provision, as a single em-
ployer on whose behalf that provision was negoti-
ated and agreed to. Thus, we find that there was a
reasonable basis in fact and law for the Union to
submit the unresolved bargaining issues to interest
arbitration. Furthermore, the record does not show
that the interest arbitration mechanism was used by
the Union to relieve it of its duty to bargain with
Collier for a new contract. Rather, the evidence
shows that the parties met to bargain prior to the
the first step of our analysis is a determination that the parties ' agreement
arguably binds the employer In this way, we address the concern allud-
ed to by the Chairman that the ultimate resolution might be repugnant to
the Act . That is, whatever result is ultimately reached by a court, it will
be susceptible to an interpretation consistent with the Act See Olin
Corp, 268 NLRB 573 (1984)
21 The Chairman 's view that the principles of Bill Johnson's are not ap-
plicable to this case is premised on his preliminary conclusion that the
Employer is not bound to the interest arbitration provision at issue. Based
on that conclusion , he finds that a union suit to enforce the CIR decision
would have an illegal objective and would presumably be enjoinable by
the Board , notwithstanding the fact that "Congress intended the judiciary
to be the appropriate forum for resolving contractual disputes " Electrical
Workers IBEW Local 532 (Brink Construction), 291 NLRB 437, 439
(1988)
Under our approach , we have determined that there is a reasona-
ble basis in fact and law for finding that the Employer is bound to
the contractual interest arbitration provisions Thus, consistent with
Bill Johnson 's, we would not interfere with the Union 's right to
pursue its claim We do not believe that a union suit to enforce the
CIR decision would fall within the illegal objective exception in Bill
Johnson 's because the Union 's actions would be consistent with the
legitimate goal of obtaining an adjudication of a bona fide contrac-
tual issue that had not been previously resolved by the Board,
namely , whether the Employer remained bound to the interest arbi-
tration provision after its withdrawal from the multiemployer asso-
ciation . In this regard , we find Longshoremen ILWU Local 13 (Sea-
Land Service) Y. NLRB, 824 F.2d 1407 (D C Cir . 1989), enfg 290
NLRB 686 ( 1988), cited by our dissenting colleague, to be clearly
distinguishable . In that case, the union pursued grievances that were
contrary to a prior Board 10(k) award , whereas in the scenario posit-
ed above the union lawsuit would not be in conflict with any Board
decisions , as none has issued . Instead, we find relevant our recent de-
cision in Brink Construction , supra . There we found that , under Bill
Johnson 's, a union did not violate the Act when it filed a Sec. 301
suit seeking a determination of the unresolved issue of whether it had
a collective-bargaining agreement with the employer, even though
the suit proved to be without merit, because the union 's object was
not illegal , but was legitimate and in harmony with Congressional
intent underlying Sec 301
submission of the unresolved issues to the arbitra-
tion panel, and there is no evidence that the Union
engaged in bad-faith bargaining . Thus, we conclude
that the Union did not violate Section 8(b)(1)(B)
and (3) of the Act by submitting unresolved bar-
gaining issues to interest arbitration pursuant to the
collective bargaining agreement between the Union
and the Southern Colorado Chapter of NECA
after Collier had withdrawn from NECA.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
CHAIRMAN STEPHENS, dissenting.
I. INTRODUCTION
At the heart of this case is the question whether
there has been a sufficiently clear waiver of a
party's right to chose its own representatives for
collective bargaining . For reasons set forth in sec-
tion IV, below, I believe that the waiver alleged
here is not sufficiently clear to satisfy policies of
the Act. For reasons set forth in section V, below,
I do not agree with my colleagues that we should
abdicate our function of adjudicating the unfair
labor practices alleged in this case simply because a
court would be willing to resolve the matter as a
simple contractual dispute , whether or not it would
apply the statutory standard for waiver.
II. FACTS
As the fact statement of the majority opinion
makes clear , after Collier Electric Company prop-
erly terminated the bargaining authority it had
given to the Southern Colorado Chapter of the Na-
tional Electrical Contractors Association (NECA)
in its Letter of Assent, Collier opted to bargain on
its own behalf through its management officers for
a successor agreement . Although the Respondent
Union initially met with these designated represent-
atives, it determined after two meetings that it
would submit unresolved issues to the Council on
Industrial Relations (CIR) pursuant to the interest
arbitration provision (Council Clauses) in the 1985-
1986 contract to which Collier was bound pursuant
to its Letter of Assent. Collier objected to this sub-
mission because in its view it had not, by signing
that Letter of Assent, agreed to have members of
the CIR take the place of its own chosen represent-
atives in determining what it would agree to in the
successor bargaining agreement , once Collier had
removed itself from the multiemployer bargaining
framework. Accordingly, Collier offered to contin-
ue meeting with the Respondent through its own
ELECTRICAL WORKERS IBEW LOCAL 13 (COLLIER ELECTRIC)
management representatives to negotiate a final
agreement . The Respondent refused to meet , insist-
ing that the remaining contractual issues should be
decided for the parties by the CIR.
III. APPLICABLE LEGAL PRINCIPLE
It is settled that each party to a collective-bar-
gaining relationship-whether the unit of employ-
ees or the employer-has a statutory right to select
its own collective -bargaining representatives and
that the other party may not, absent certain cir-
cumstances not here relevant , refuse to meet with
those representatives or otherwise insist to impasse
on their replacement by persons not of the party's
own choosing . For employees right is embodied in
Section 7 of the Act.I For employees the right is
protected against union restraint in Section
8(b)(1)(B), which Congress enacted in part to pre-
vent employers from being forced by unions or
their agents into bargaining through multiemployer
associations when they wish to bargain individual-
ly.2
When an employer refuses to meet or otherwise
recognize the unit employees ' bargaining represent-
atives, it violates Section 8(a)(1) of the Act because
this conduct interferes with the employees' Section
7 right to choose their representatives; and it vio-
lates Section 8(a)(5) of the Act because the conduct
constitutes a refusal to bargain in good faith with
those representatives .3 When a union engages in
analogous conduct with respect to employer repre-
sentatives, it violates Section 8 (b)(1)(B) because of
the restraint on the employer's selection of its rep-
resentatives, and it violates Section 8 (b)(3) because
such conduct does not meet the requirements for
good-faith bargainings.4 An underlying theory of
the 8(a)(5) and 8 (b)(3) violations in many cases is
that insistence on the other party 's being represent-
ed by someone other than its chosen representa-
tives amounts to an insistence on a nonmandatory,
i.e., permissive , subject of bargaining. Under
NLRB v. Borg-Wagner Corp., 356 U.S. 342, 349
(1958), conditioning bargaining over mandatory
' Fronklme. Inc, 287 NLRB 263, 264-265 (1987), and cases there cited
2 Asbestos Workers Local 27 (Master Insulators), 269 NLRB 719, 721
(1984); Asbestos Workers Local 27 (Master Insulators), 263 NLRB 922, 923
(1982). See also Electrical Workers IBEW Local 428 (Kern County Chapter
NECA), 277 NLRB 397, 410-412 ( 1985).
a Franklme, Inc, supra
4 See fn . 2, supra, regarding Sec 8 (b)(1)(B) With respect to violations
of Sec . 8(b)(3), se Ladies Garment Workers (West Side Sportswear), 286
NLRB 226 (1987), enfd mem 853 F 2d 918 (3d Cir. 1988), Asbestos
Workers Local 27 (Masier Insulators), supra, 269 NLRB 719, Asbestos
Workers Local 27, supra , 263 NLRB 922; Carpenters Local 743 (Armstrong
& Smith Construction). 261 NLRB 425, 428 (1982 ), enfd . mem. 718 F 2d
Ill (9th Cir. 1983)
Sec. 8(b)(3) makes it an unfair labor practice for a labor organiza-
tion or its agents "to refuse to bargain collectively with an employer,
provided it is the representative of his employees subject to the pro-
visions of section 9(a) "
1101
subjects on the other party's acquiescence on a
nonmandatory subject is a failure to bargain in
good faith. Because the Board has held that interest
arbitration is a nonmandatory subject of bargain-
ing,5 insistence that another party be bound against
its will to determination of bargaining agreement
provisions by an interest arbitration panel is an
unfair labor practice under Borg-Wagner and its
progency.
Of the course the right of a union or an employ-
er to choose its own representatives, like most stat-
utory rights, can be waived, but the waiver must
be clear and unmistakable .6 The rule that an em-
ployer is not bound to a contract negotiated by a
multiemployer association unless it has manifested
from the outset an unequivocal intent to be bound
by group action reflects that policy.7 That same
rule logically applies in construing a waiver with
respect to having terms of a contract drawn up for
a party by an interest arbitration panel.
Under the foregoing principles, if, as I would
find , Collier has not clearly and unmistakably des-
ignated the CIR as a body that may resolve terms
5 Tampa Sheet Metal Co., 288 NLRB 322 (1988), NLRB V. Columbus
Printing Pressmen Local 252 (R. W. Page Corp.), 543 F 2d 1161, 1166 (5th
Cir Cir 1976), Electrical Workers IBEW Local 135 (LaCrosse Electrical),
271 NLRB 250, 251 (1984), Sheet Metal Workers Local 59 (Employers
Assn.), 227 NLRB 520 (1976).
6 Missouri Portland Cement Co., 284 NLRB 432, 434 (1987) (applying
clear and unmistakable standard for waiver of employee choice of griev-
ance representatives); Asbestos Workers Local 27 (Master Insulators),
supra, 269 NLRB at 721 (applying standard to waiver of employer's
choice of grievance panel representatives ), Sheet Metal Workers Local 59
(Employers Assn), 227 NLRB 520, 521 (1976) (applying standard to issue
whether employers had agreed that dispute over inclusion of interest ar-
bitration clause in future contract could itself be referred to an interest
arbitration panel ). See generally Metropolitan Edison Co v NLRB, 460
U S 693, 708 (1983 ) (waivers of protected rights must meet clear and un-
mistakable standard).
I am aware that in Asbestos Workers Local 27, supra, the panel ma-
jority found it unnecessary to decide whether the right to select
prearbitration grievance representatives could be waived , and only
Member Dennis expressed the view that both union and employers
could waive such a right I agree with Member Dennis It is evident
that there is no unwaiveable right to change one 's bargaining repre-
sentative at will because the Board will find an employer in violation
of Sec 8(a)(5) if, after attempting an untimely withdrawal from a
multiemployer bargaining group , it refuses to execute a collective-
bargaining agreement negotiated by that group with the union that
represents its employees Bonanno Linen Service Y NLRB, 454 U S
404, 412 (1982)
1 would add one caveat , however, based on the policy consider-
ations underlying the holding in NLRB v. Magnavox Co, 415 U S
322, 325 ( 1974), that a union may not agree to broad restrictions on
employee in-plant solicitations on nonworking time The court noted
an incumbent union's natural self-interest in "perpetuating itself as
the bargaining representative" and agreed with the Board that union-
employer agreements that would have the effect of suppressing
workplace communication both for and against the union were not
consistent with the policies underlying Sec 7 of the Act. Id at 325
Because an employer association might have a similar self-interest in
perpetuating itself and related entities such as bipartite arbitration
panels , I believe that the clear and unmistakable standard must be
rigorously applied to determining whether an employer member has
knowingly waived rights as to negotiations occurring after it has
properly terminated its membership in the association
7 Acropolis Painting , 272 NLRB 150, 154 (1984), and cases there cited
1102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of a subsequent bargaining agreement between Col-
lier and the Respondent, then the Respondent has
violated Section 8(b)(3) and 8(b)(1)(B) of the Act
by refusing to meet with Collier' s management rep-
resentatives and insisting instead that provisions of
the collective-bargaining agreement relating to sub-
jects still dispute be settled in Washington, D.C.,
by members of the CIR.8
IV. COLLIER'S ALLEGED WAIVER OF THE RIGHT
TO CHOOSE ITS REPRESENTATIVES FOR
DETERMINING TERMS OF A SUCCESSOR
AGREEMENT AFTER TIMELY TERMINATION OF
NECA'S BARGAINING AUTHORITY
In concluding that Collier did not cleary and un-
mistakably waive its right to choose its representa-
tive for determining in NECA provisions of a suc-
cesssor agreement after it had terminated its mem-
bership in NECA pursuant to the requirements set
out in Letter of Assent A, I am in no way finding
that Collier was not bound to that agreement once
a timely termination notice was given.9 That does
not resolve the question in this case , however,
which is whether article I, section 1.2(d) of the
agreement, the interest arbitration clause, clearly
and unmistakably applies to a employer that has
timely terminated its relationship with NECA and
that will be bargaining for any successor agreement
outside the multiemployer bargaining framework.
Article I, section 1.2(d), reads as follows:
(d) unresolved issues in negotiations that
remain on the 20th of the month preceding the
next regular meeting of the Council on Indus-
trial Relations, may be submitted jointly or
unilaterally by the parties to this Agreement to
the Council for adjudication prior to the anni-
versary date of this Agreement [emphasis
added].
As the General Counsel points out, although all
employers who have authorized NECA as their
bargaining representative are bound by the agree-
ment , the agreement is signed only by the Re-
spondent and NECA. Further, the agreement gen-
erally uses the terms "Employer" when referring
to individual members of NECA such as Collier,
and in several provisions the term "party" or "par-
ties" can refer only to NECA and the Respondent.
This is so with respect to article I, section 1.3, re-
ferring to midterm changes or supplements, since
no one could reasonably contend that the one or
several employers, circumventing NECA, could
agree with the Respondent of make midterm
changes in the agreement. It is also true for article
I, section 1.6, referring to the adjustment of griev-
ances by "the duly authorized representatives of
each of the parties to this Agreement," with disputes
to be referred toa Labor-Management Committee
in the event "these two are unable to adjust any
matter in 48 hours" (emphasis added). That Collier
cited to a contract provision referring to "parties"
in giving its notice of termination does not, as the
Union Amici contend , make the meaning of the in-
terest arbitration provision unmistakably clear. The
fact is that the term "party" does not clearly, in all
provision, signify individual employers.10
I also note that in article I, section 1(e), the
agreement provides that when disputed issues in
negotiations have been submitted to the CIR, "it
shall be the responsibility of the negotiating com-
mittee to continue to meet weekly in an effort to
reach settlement on the local level prior to the
meeting of the [CIR]." Not all individual employ-
ers necessarily bargain through a "committee."
This section would appear to refer to multiemploy-
er negotiations.
I concede that there is a tenable agrument for
construing the clause as the Respondent urges. As
my colleagues point out, three courts of appeals
have read somewhat similar language as binding
employers in new negotiations even when they had
terminated the multiemployer associations ' bargain-
ing authority. 11 But as the judge in this case noted,
the court in the Eleventh Circuit case on which he
relied did not "use the `clear and unmistakable
waiver' analysis" urged by the General Counsel.
For the reasons stated in section II, above, I be-
lieve the policies of the Act require such an analy-
sis, and thus the court decision on which the judge
in part relied in no way assures that the policies of
the Act are being effectuated.
8 I would not find that ther mere submission of disputed issues to the
CIR constitutes a violation . If the Respondent had made the submission,
but had continued to bargain with Collier's designated management rep-
resentatives , using the CIR determination only as a model for its own
bargaining position, there would be no violation, so long as the Respond-
ent showed sufficient flexibility in negotiations to meet the good-faith
test . Compare, e g., Teamsters Local 418 (Seigle's Express), 254 NLRB 953
(1981), with Teamsters Local 301 (Merchants Moving & Storage), 210
NLRB 789 (1974)
9 As the Respondent points out, any such conclusion would be incon-
sistent with Watson-Rummell Electric Co, 277 NLRB 1401, 1402 ( 1985).
10 Neither do I see much force to the contention of the Union Amici
that the interest arbitration provision clearly applies to employers bar-
gaining individually for new agreements because the CIR in fact took ju-
risdiction of the dispute over Collier's objection Such an after-the-fact
decision by the CIT to assert its jurisdiction cannot make clear in the
contract what is not entirely clear. In any event , as noted below , an arbi-
tration panel cannot create its own jurisdiction.
i i Sheet Metal Workers Local 20 Y. Baylor Heating, 877 F 2d 547 (7th
Cir 1989); Sheet Metal Workers Local 57 Welfare Fund v. Tampa Sheet
Metal Co, 786 F 2d 1459 (11th Cir. 1986), Sheet Metal Workers Local 420
Y. Huggins Sheet Metal, 752 F 2d 1473 (9th Cir 1985)
ELECTRICAL WORKERS IBEW LOCAL 13 (COLLIER ELECTRIC) 1103
V. THE QUESTION OF BOARD ABSTENTION IN
FAVOR OF THE COURTS
My colleagues agree that their dismissal of the
complaint leaves a "potential unfair labor practice
question unresolved ," 12 but they conclude that
"leaving to the courts" the question of the applica-
tion of the interest arbitration clause to Collier's
post-termination individual bargaining effectuates
the purposes of the Act . They emphasize that this
is "primarily a contractual " dispute , and that be-
cause the Board has found an interest arbitration
clause to be only a permissive subject of bargain-
ing, interest arbitration therefore has "at most an
attenuated connection to the purposes and policies
of the Act ." Without denying that the Board has
jurisdiction to decide whether unions or employers
are bound to arbitration provisions , they imply that
the courts are the preferable forum for such a ques-
tion, citing the Supreme Court 's holding in AT&T
Technologies v. Communications Workers, 475 U.S.
643, 649 ( 1986), that "whether a collective bargain-
ing agreement creates a duty for the parties to arbi-
trate the particular grievance . . . is undeniably an
issue for judicial determination."
With all due respect , I believe my colleagues'
analysis fails to focus on the statutory issue in this
case and overlooks the complexities of the Board's
proper relationship to courts exercising jurisdiction
under Section 301 of the Act in cases in which
issues relevant to determining claims under collec-
tive-bargaining agreements are also relevant to an
unfair labor practice determination. 13
As explained in section III, above , the statutory
right in question here is not the right to have inter-
est arbitration clauses enforced; it is the right-en-
joyed by both employees and employer-to choose
one's own representatives for the purpose of nego-
tiating the terms of a collective -bargaining agree-
ment . That right has more than an "attenuated con-
nection" to the Act 's policies and purposes; it is a
policy that Congress has expressly declared in the
Act. The fact that , as my colleagues observe , inter-
est arbitration is only a permissive subject of bar-
gaining merely signifies that it is a matter that the
12 In my view , of course , there is an unfair labor practice here whether
or not a court subsequently decides to read the interest arbitration provi-
sion as binding Collier in its post -termination negotiations for a new indi-
vidual agreement , because I would find that under the standard that must
be used in construing the agreement , Collier did not waive its right to
choose its own representatives for negotiating all the terms of a new
agreement
19 Sec 301 , 29 U.S.C § 301, grants to courts jurisdiction to decide
cases involving , inter alia , claims arising under collective-bargaining
agreements and, to the extent that such claims call for adjudication of
conduct that is or relates to an unfair labor practice , the courts enjoy
concurrent jurisdiction with the Board over such conduct . Smith Y.
Evening News Assn , 371 U S 195 , 197-198 (1962) As noted below, how-
ever, there are some issues as to which the Board 's determination would
take precedence
Respondent may not impose on Collier against its
will. If Collier did not clearly and unmistakably
waive its right to choose its own representatives
for the determination of terms of any successor
bargaining agreement negotiated subsequent to Col-
lier's withdrawal from NECA, then Collier 's statu-
tory rights will be impaired by imposition of the in-
terest arbitration process on it through court en-
forcement . In other words , if a court erroneously
binds Collier to the clause under the circumstances
here , the decision will in essence enforce a viola-
tion of Collier 's statutory rights . 14 It will presum-
ably entitle the Respondent to persist in its refusal
to meet with representatives who are indisputably
of Collier's choosing to negotiate terms on the
mandatory bargaining subjects that remained unre-
solved when the Respondent made its unilateral
submission to the CIR.
For similar reasons my colleagues ' observation
that this is "primarily a contractual dispute" misses
the mark. To be sure , under Collyer Insulated Wire,
192 NLRB 837 (1971), when it is a question of
rights under a contract to which the parties are un-
questionably bound , the Board customarily agrees
to defer the dispute to the contractual grievance-ar-
bitration mechanism and to retain jurisdiction only
for the purpose of assuring that the dispute is re-
solved through a fair and regular process and
reaches a result that is not repugnant to the policies
of the Act . Id. at 843 , citing Spielberg Mfg. Co., 112
NLRB 1080, 1082 (1955). But we cannot retain ju-
risdiction to review the outcome of any Section
301 action, so we have no way of assuring that the
ultimate resolution will not be "repugnant to the
14 For this reason I cannot agree that Bill Johnson 's Restaurants v
NLRB, 461 U.S 731 ( 1983), has any application here . Under my analysis,
a suit to enforce a determination of the CIR resolving the terms of man-
datory bargaining subjects in the new collective-bargaining agreement
would be a suit with "an objective that is illegal under federal law" and
thus a suit that the Court in Bill Johnson 's expressly excluded from the
reach of that decision . Id at 737 fn. 5 See also Longshoremen ILWU
Local 13 (Sea-Land Service) v. NLRB, 884 F.2d 1407 , 1414 (D C Cir.
1989) (Bill Johnson 's not applicable to suit to enforce arbitration award in
conflict with the Board 's 10(k) determination)
In view of the fact that we are presented with the unfair labor practice
issue here prior to the filing of any lawsuit , I regard Electrical Workers
IBEW Local 532 (Brink Construction), 291 NLRB 437 ( 1988), on which
my colleagues rely, as consistent with my position In Brink the Board
held that a Sec. 301 suit brought by a union to enforce a multiemployer
agreement against an individual employer who contended it had with-
drawn its bargaining authority from the multiemployer group was not a
lawsuit filed with an unlawful objective within the meaning of the excep-
tion to the Bill Johnson 's holding In so holding , the Board emphasized
that there had been no prior determination of the question id. at 438-
439. Here Collier is now seeking a determination of an unfair labor prac-
tice issue clearly within our jurisdiction , and should we find that unfair
labor practice , the unlawful objective of the lawsuit will be clear. Fur-
thermore , in Brink , the Board took it upon itself to determine that the
lawsuit there in fact had a lawful objective since , in the Board's view, the
employer was bound to an automatic renewal of an earlier multiemployer
agreement that contained provisions identical to those the union was
seeking to enforce in the contested agreement . Id. at 7
1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Act." Furthermore, the policy underlying Collyer
of fostering the statutory policy favoring grievance
arbitration by deferring contract disputes to the
mechanism established by the parties' "own volun-
tary agreement" (192 NLRB at 842), has little to
do with standing aside to allow courts to enforce
an interest arbitration clause that has "at most an
attenuated connection" to the Act's policies.15
It is true that in some cases involving very
narrow contractual issues, albeit ones involving
mandatory subjects, the Board has declined to
assert jurisdiction altogether, whether or not arbi-
tration of the dispute was assured . See, e.g., NCR
Corp., 271 NLRB 1212 (1984); Thermo Electron
Corp., 287 NLRB 820 (1987), affd. mem. sub nom.
Carpenters District Council v. NLRB, 884 F.2d 578
(6th Cir. 1989). But even assuming cases in the
latter category are correctly decided, those are not
cases in which the Board leaves potential unfair
labor practices unresolved. They are cases in
which the Board has determined that the dispute
over contract interpretation did not implicate con-
duct that truly rose to a refusal to bargain in good
faith, in violation of the Act. That is not the case
here, and in this regard, the remarks of former
Chairman Miller in Papercraft Corp., 212 NLRB
240 (1974), are pertinent . Dissenting from his col-
leagues' assertion of jurisdiction over a dispute in-
volving the proper construction of a contract's
wage rate provision, he observed (id. at 242 fn. 5;
emphasis added):
Contrary to the statement attributed to me
by my colleagues, I do not take the extreme
position that conduct constituting a breach of
contract may never constitute a violation of
this Act over which we ought to assert juris-
diction. Where the conduct involved has over-
tones beyond mere contract breach and which go
to areas where the policies of this Act are threat-
ened, of course we take jurisdiction. We may,
even then, defer in the first instance to an avail-
able arbitral forum if we are satisfied that the
parties' own voluntary machinery may resolve
the matter in a manner consistent with the
policies of this Act.
'S 1 also note that even in Sec . 301 actions interest arbitration clauses
do not enjoy the same favored status as grievance arbitration clauses
Indeed , in holding that interest arbitration mechanisms cannot be used to
perpetuate interest arbitration clauses in future contracts over the objec-
tion of one of the parties , the Eleventh Circuit has stated that "interest
arbitration is disfavored " Montgomery Mailers' Union Local 127 v. Adver-
tisers' Co, 827 F 2d 709, 716 (11th Cir . 1987) See also NLRB Y. Colum-
bus Printing Pressmen Local 252 (R. W. Page Corp.), 543 F 2d 1161, 1169-
1171 (5th Cir. 1976) (industrial peace not fostered when parties feel that
an interest arbitration award has been imposed on them against their
will).
As I have argued above, this case indisputably has
"overtones" going "beyond mere contract breach."
Therefore, I would no sooner defer the contractual
issue here to the courts than I would defer to the
courts in cases turning on disputes over the mean-
ing of a no-strike clause,16 disputes over whether a
contract requires grievances to be put into writing
before arbitration can be invoked,' 7 disputes over
whether a management-rights clause permits an
employer to make unilateral changes in policies
governing work assignments for disabled employ-
ees,18 disputes over whether an employer is com-
plying with contractual provisions determined in
an award issued by an arbitrator exercising author-
ity unquestionably given,19 or disputes over
whether a particular grievance and arbitration
clause should be read as providing for an "exclu-
sive, final, and binding" method of adjustment,
thereby giving rise to an implied duty on the part
of the union to avoid striking over grievances sub-
ject to the provision.20
Of course, we have no reason to assume that
courts will readily ignore the policies of the Act
that we are charged with administering . As Judge
Silberman pointed out in Electrical Workers IBEW
Local 1395 (Indianapolis Power & Light) v. NLRB,
797 F.2d 1027 (D.C. Cir. 1986 ), a case that could
just as easily as the present case be characterized as
"primarily a contractual dispute":
Precedents from these two forums [the Board
and courts exercising jurisdiction under Sec.
301] regarding interpretation of collective bar-
gaining agreements have typically been cited
interchangeably. Courts deciding cases arising
under Section 301 have relied upon Board de-
cisions about waiver of the right to strike .. .
and have applied the "clear and unmistakable"
standard . . . ; conversely, courts reviewing de-
cisions of the Board regarding waiver have
discussed the reasoning of Section 301 cases
Although this process of cross-fertilization
has taken place largely without analysis or
conscious approval, we think it follows quite
naturally from the policies of the labor laws. A
divergence of interpretive standards "would
inevitably exert a disruptive influence" on the
voluntary collective bargaining process central
to federal labor policy.
' e See, e.g, Metropolitan Edison Co. v NLRB, supra
14 Southwestern Electric, 274 NLRB 922 ( 1985), enfd 794 F 2d 276 (7th
Cir 1986).
"Southern California Edison Co., 284 NLRB 1205 (1987) enfd, mem
852 F . 2d 572 (9th Cir 1988)
'S VM Industries , 291 NLRB 5 (1988)
20 Atlas Plastering, 285 NLRB 185 (1987)
ELECTRICAL WORKERS IBEW LOCAL 13 (COLLIER ELECTRIC)
Id. at 1032 (citations omitted). Accord : Carpenters
Local Union No. 1846 v. Pratt-Farnsworth , 690 F.2d
489, 511 -512 (5th Cir . 1982). See also Jim McNeff,
Inc. v. Todd, 461 U.S . 260 (1983) (taking account of
then-current Board law in deciding question in Sec.
301 action).21
But the willingness of courts to apply appropri-
ate statutory standards should not be taken as an
invitation to us to refuse to develop and apply such
standards ourselves . First , we are at least as well
equipped as the courts to determine whether, under
all the circumstances , a party is bound by one or
more provisions of a collective -bargaining agree-
ment . When the Supreme Court in AT&T Technol-
ogies v. Communications Workers, supra, announced
that the question whether there was a duty to arbi-
trate under a collective -bargaining agreement "is
undeniably an issue for judicial determination" (475
U.S. at 649), it was saying only that this was a
question for courts as opposed to arbitrators-i.e.,
that arbitrators could not through the arbitration
process itself bootstrap their own jurisdiction; it
was not suggesting that the Board would not be
competent to decide such a question in an unfair
labor practice case.
Furthermore , there is good authority for the
proposition that when an issue in a Section 301
action touches on questions under the Board's juris-
diction, the courts should , at the least, give defer-
ence to the views of the Board . Thus a decision
that my colleagues cite for the proposition that,
"when the underlying controversy is primarily
contractual , the Board should defer to the
courts,"22 itself cites an earlier decision of the
same circuit involving interest arbitration in which
the court deferred to the Board 's view that it was
contrary to the policy of the Act to allow a union
to use the interest arbitration procedure to obtain
another interest arbitration clause over the objec-
tion of the employer . Milwaukee Newspaper &
Graphic Communications Union Local 23 v. Newspa-
2 i Under Carey v Westinghouse Electric Corp, 375 US 261 (1963),
however , when an arbitral decision involves a question concerning repre-
sentation of employees , a conflicting Board determination will take prece-
dence, whether it is a question of a contract 's asserted application to a
particular group of employees of the employer who is signatory to the
contract or a question of the contract's asserted application to the em-
ployees of an ostensibly different employer under an alter ego or single
employer theory . E.g., A. Dorian & Sons v. District Council of Painters
No 33, 869 F.2d 514, 517 (9th Or. 1989) (court cannot extend contract to
employees of an alleged alter ego employer where Board has implicitly
found this would constitute an accretion ), Teamsters Local 767 v Stand-
ard Brands, 579 172d 1282, 1291-1294 (5th Cir 1978) (court cannot
extend contract to a facility of an employer in which the Board has certi-
fied a different union as representative). The question , distinct from con-
tractual issues , whether a particular labor organization is the representa-
tive of a group of employees is committed solely to the Board's jurisdic-
tion and cannot be decided by either courts or arbitrators Charles S
Winner, Inc. Y Teamsters Local 115, 777 F.2d 861 , 863 (3d Cir 1985).
22 Sheet Metal Workers Local 20 v. Baylor Heating, 877 F.2d 547 (7th
Cir. 1989)
1105
pers, Inc., 586 F .2d 19 (1978). Taking note of four
Board unfair labor practice decisions holding it to
be a violation of Section 8(b)(3) to insist to impasse
on an interest arbitration clause , the court com-
mented (id. at 22):
Even though the Board has not ruled on the
specific facts before us , those facts are gov-
erned by a well -established Board doctrine,
and it cannot be plausibly argued that the doc-
trine is inapplicable . We owe great deference
to the Board 's determination in this area. See
Allied Chemical & Alkali Workers v. Pittsburgh
Plate Glass Co., 404 U.S. 157, 182 (1971). The
Board's policy as reflected in the four cited
unfair labor practice cases from other circuits
should not be flouted by a court in a Section
301 enforcement action.23
While our unfortunate delay in deciding the issue
in the present case has no doubt prompted courts
to disregard our motions for intervention and stay
of proceedings in Section 301 actions involving
such an issue , that is no reason for us to resign
from the field and refuse to decide the issue at all
in cases properly before us. It is only by our decid-
ing all the issues presented in such cases that the
"cross-fertilization" of which Judge Silberman
speaks can take place.
In sum, I would find : (1) that the proper stand-
ard for binding an employer to an interest arbitra-
tion clause is the same standard-clear and unmis-
takable-that is applied in determining whether
employees have waived their right to choose their
bargaining representative over a particular issue;
(2) that there was no such waiver of Collier 's right
with respect to bargaining for a new agreement
outside the multiemployer framework ; (3) that the
Respondent violated Section 8(b)(3) and 8(b)(1)(B)
of the Act by refusing to meet with Collier 's repre-
sentatives and, instead , insisting that the remaining
issues would be decided by the CIR on the basis of
the Respondent 's unilateral submission; and (4) that
we should not, in deference to some possible future
court decision, decline to decide the unfair labor
practice issue that is squarely presented to us in
this case.
23 See also Electrical Workers IBEW Local 1395 Y. NLRB, supra, 797
F 2d at 1032
Michael T. Pennington and Michael J. Belo, for the Gen-
eral Counsel.
Walter C. Brauer, Atty. (Brauer and Buescher), of Denver,
Colorado, for the Respondent.
David R . Gorsuch and David B. Seserman , Attys. (Gor-
such, Kirgis, Campbell, Walker & Grover), of Denver,
Colorado, for the Charging Party.
1106 DECISIONS OF THE NATIONAL' LABOR RELATIONS BOARD
Elihu .I. Leifer and David Potts-Dupre, Attys. (Sherman,
Dunn, Cohen, Leifer & Counts, PC.), of Washington,
D.C., and John A. McGuinn and Gary L. Lieber, Attys.
(Rose, Schmidt, Chapman, Duff & Hasley), of Washing-
ton, D .C., on brief for Amici Curiae International
Brotherhood of Electrical Workers, AFL-CIO and
National Electrical Contractors Association.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I
heard this case in trial on 9 October 1986 pursuant to a
complaint and notice of hearing issued by the Regional
Director for Region 27 of the National Labor Relations
Board on 27 June 1986, and amended on 22 September
1986, pursuant to a charge filed by Collier Electric Com-
pany (the Employer or the Charging Party) on 14 May
1986, against International Brotherhood of Electrical
Workers, Local No. 113 (Respondent or Local 113).
The amended complaint alleges and the answer denies
that Respondent violated Section 8(b)(1)(B) and (3) of
the National Labor Relations Act (the Act) by submit-
ting certain bargaining disputes between itself and the
Employer to the National Electrical Contractors Asso-
ciation Council in Industrial Relations for the Electrical
Industry at a time when that body had not been selected
by the Employer as its representative for the purposes of
collective bargaining or the adjustment of grievances and
by otherwise failing and refusing to bargain with the
Employer in good faith. Respondent alleges that at all
times material it followed contractually agreed upon pro-
cedures in its negotiations with the Employer and at no
time failed to bargain in good faith.
All parties were given full opportunity to participate
at the hearing, to introduce relevant evidence, to call, ex-
amine and cross-examine witnesses, to argue orally and
to file posthearing briefs.'
On the entire record,2 including scholarly briefs from
the parties, and from my observation of the witnesses
and their demeanor, I make the following
FINDINGS OF FACT
1. JURISDICTION
At all times material, the Charging Party has been a
Colorado corporation with an office and place of busi-
ness in Denver, Colorado, and has been engaged as an
electrical contractor in the building and construction in-
dustry. The Charging Party in the course and conduct of
its business operations annually purchases and receives
goods, materials, and services valued in excess of $50,000
directly from points and places outside the State of Colo-
rado, and annually purchases and receives goods, materi-
als, and services valued in excess of $50,000 from other
At the conclusion of the hearing, I granted a motion to allow Inter-
national Brotherhood of Electrical Workers and National Electrical Con-
tractors Association to file an Amici Curiae briefs in the case in light of
their interest in the legal status of decisions issued by their joint body the
Council on Industrial Relations for the Electrical Contracting Industry
2 Respondent's unopposed motion to correct transcript is granted
enterprises within the State of Colorado which other en-
terprises receive those goods, materials, and services di-
rectly in interstate commerce. The Charging Party in the
course and conduct of its business operations, as de-
scribed above, derives gross annual revenues in excess of
$1 million . The Charging Party is therefore, and has
been at all times material, an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. LABOR ORGANIZATION
Respondent is now , and has been at all times material,
a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The National Electrical Contractors Association
(NECA) has for many years been a trade association of
electrical contractors which, inter alia, bargains on behalf
of its authorizing member-employers in multiemployer
bargaining and administers collective-bargaining con-
tracts on behalf of those employers. NECA is organized
into jurisdictional units or chapters, one of which is the
Southern Colorado Chapter. The International Brother-
hood of Electrical Workers (the International) is a labor
organization representing, inter alia, employees in the
electrical construction industry. The International has af-
filiated local unions including Respondent, whose geo-
graphical jurisdictional area is the same as the Southern
Colorado Chapter of NECA.
The Charging Party has for many years been an elec-
trical contractor doing business in many States including
the area of Colorado within the jurisdiction of the South-
ern Colorado Chapter of NECA and Local 113. The
Charging Party had for many years been a member of
Southern Colorado Chapter of NECA and, at least since
1977 until the events at controversy herein, had been sig-
natory to NECA's "Letter of Assent-A."
Through the years, the Charging Party under its
Letter of Assent-A, had been bound by various collec-
tive-bargaining agreements with Respondent, the most
recent of which, until the events in dispute, commenced
on 1 June 1985 and expired by its terms on 31 May 1986.
That collective-bargaining agreement contained the fol-
lowing language:
The Letter of Assent-A states:
In signing this Letter of Assent, the undersigned does hereby author-
ize Southern Colorado Chapter, NECA as its collective bargaining
representative for all matters contained in or pertaining to the cur-
rent approved inside labor agreement between the Southern Colora-
do Chapter, NECA and Local Union 113, IBEW This authorization,
in compliance with the current approved labor agreement, shall
become effective on the Ilth day of July, 1977 Shall remain in effect
until terminated by the undersigned employer giving written notice
to the Southern Colorado Chapter, NECA and to the Local Union
at least one hundred fifty (150) days prior to the then current anni-
versary date of the aforementioned approved labor agreement
The Letter of Assent was appropriately signed by authorized agents of
the Employer and Local 113 and the document was approved by the
International.
ELECTRICAL WORKERS IBEW LOCAL 13 (COLLIER ELECTRIC)
Article I
(d) Unresolved issues in the negotiations that
remain in the 20th of the month preceding the next
regular scheduled meeting of council on industrial
relations may be submitted jointly or unilaterally by
the parties to this Agreement to the Council for ad-
judication prior to the anniversary date of the
agreement.
(e) When a case has been submitted to the Coun-
cil, it shall be the responsibility of the negotiating
committee to continue to meet weekly in an effort
to reach a settlement on the local level prior to the
meeting of the Council.
(f) Notice by either party of a desire to terminate
this Agreement shall be handled in the same manner
as a proposed change.
The Council on Industrial Relations (CIR) is a long-
standing body created by NECA and the International
which provides, inter alia , for the submission of contrac-
tual disputes to the body for resolution.4 The CIR pro-
vides procedures for joint or unilateral submission of
contractual disputes . CIR rulings are made only by unan-
imous decision.
B. The 1985-1986 Events
On 23 December 1985 the Charging Party mailed a
letter to the Southern Colorado Chapter of NECA with
the following text:
In accordance with the provision of the current
Letter of Assent between Collier Electric Company
and Local Union No. 113 of the International
Brotherhood of Electrical Workers (IBEW), this
letter is your notice that, effective immediately,
Collier Electric Company withdraws and revokes
any and all authority previously given to the South-
ern Colorado Chapter of the National Electrical
Contractors Association (NECA) to negotiate on its
behalf with Local Union No. 113 of the IBEW over
wages and terms and conditions of employment of
Collier Electric Company employees. Collier Elec-
tric Company will not abide by or be bound by any
agreement or other action of NECA purportedly
made on its behalf.
On that same day the Charging Party sent Local 113 a
letter with the following text:
This letter is your notice that, effective immedi-
ately, Collier Electric Company withdraws and re-
vokes any and all authority previously given to the
Southern Colorado Chapter of the National Chapter
of Electrical Contractors Association (NECA) to
negotiate on its behalf with Local Union No. 113 of
the IBEW over wages and other terms and condi-
tions of employment over Collier Electric Company
employees. Collier Electric Company will not abide
* CIR's original precepts , adopted April 1920, assert in part
The Council differs from so-called arbitration boards in that it pro-
fess to be a court of justice and not merely a court of arbitration
1107
by or be bound by any agreement or other actions
of NECA purportedly made on its behalf.
Additionally, this letter will serve as notice in ac-
cordance with Article I, Section 102 of the Agree-
ment between the Southern Colorado Chapter of
NECA and Local Union No. 113 of the IBEW,
dated 1 June 1985 (the "Agreement") that Collier
Electric Company hereby terminates any and all of
its obligations under the Agreement, effective the
earliest possible appropriate date.
Collier Electric Company will contact Local
Union No. 113 of the IBEW in the near future to
set up the appropriate meeting required in negotiat-
ing a new and competitive independent agreement.
Respondent 's business manager , Marshall Johnson, met
with the Charging Party's president , Richard Collier,
and marketing manager, Ralph Lufen, in early January
1986. The Charging Party's agents assured Respondent
that the bargaining withdrawal was not intended to
eliminate union representation of employees but rather to
facilitate independent bargaining . Messrs . Collier and
Lufen testified that Johnson indicated that Respondent
would seek uniform working conditions in its jurisdiction
and that individual employers , including Charging Party,
would not receive better terms than those under any
NECA contract.
By letter dated 27 February 1986 to the Union, the
Charging Party indicated that it would be "negotiating
rates of pay, working conditions and all other items re-
lating to a new independent agreement ." The letter fur-
ther stated : "We are prepared to meet you at mutually
agreeable locations and times to commence these negoti-
ations . We await your call to schedule such meetings."
By letter dated 28\February 1986 to the Charging Party,
Respondent formally announced its intention to amend
the agreement and proposed a series of amendments.
The Charging Party and Respondent held an initial
bargaining session on 20 March 1986. Johnson on behalf
of Respondent made it clear that his committee was au-
thorized to reach agreement subject, however, to ratifi-
cation by unit members and approval by the Internation-
al. The Charging Party's agent , Collier, protested the
right of approval of the International of any agreement
reached by the parties . In the relatively brief session, the
procedures for the bargaining were established, proposals
were discussed and explained , and arrangements were
made for a second session . After the first session but
before the parties met again , the Charging Party deliv-
ered to Respondent's offices its complete contract pro-
posal.
A second bargaining session was held on 9 April 1986.
Various proposals were made and disagreements were
discussed . During the session , Johnson informed the
Charging Party that it intended to submit unresolved
bargaining issues to the CIR. The Charging Party an-
swered with a written position on the issue.5
s The statement of position stated
Collier Electric Company gave written notice to Local 113 on De-
cember 23 , 1985, that , pursuant to Section 1 2 of the June 1, 1985
Continued
1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
By letter dated 14 April 1986, Collier wrote to the
CIR with a copy to Respondent indicating that they had
been informed that Respondent intended to submit unre-
solved issues to the Council and had requested appropri-
ate forms from CIR to initiate that procedure . The letter
then quoted verbatim the language of its written state-
ment of position given to Respondent at the second bar-
gaining session.
On 17 April 1986 Respondent sent the Charging Party
a letter with the following text:
Please consider this letter official notification that
Local Union # 113 I.B .E.W. intends to file for May
1986 session of Council of Industrial Relations. We
now request that Collier Electric Company file
jointly to the Council of Industrial Relations with
Local Union #113, I.B.E.W.
If Collier does not choose to file jointly with
Local Union # 113, I.B.E.W., we will proceed and
file unilaterally.
On 23 April 1986 CIR sent formal submission forms
and procedural instructions to Respondent for submitting
its claim and sent a copy of these instructions to the
Charging Party. On that same date, a third bargaining
sesssion was held between the parties . At that bargaining
session , the positions of the parties taken to date with re-
spect to the CIR submission were discussed . Respondent
maintained its right to submit unresolved bargaining
issues to the Council. The Charging Party reiterated its
view that the Council was without jurisdiction . Changes
in the existing agreement were proposed by the Charging
Party's agents . Respondent 's agent , Johnson, received
the proposal unfavorably and rejected them as both in-
consistent with current practice and unacceptable to the
International.
On or about 1 May 1986 , consistent with CIR proce-
dures, Respondent unilaterally submitted five "items in
dispute" to CIR.6
A final bargaining session was held between the parties
on 8 May 1986 . The meeting was very brief. The Charg-
ing Party 's agent asked why Respondent had in its sub-
mission to CIR sought a 3-year contract when the pro-
posals between the parties all described a 1-year con-
tract. The response of Respondent's agent , Johnson, was
that he hoped to receive a favorable ruling from the
Council . In light of the differing positions taken regard-
ing CIR, the parties agreed that it would be unprofitable
to continue bargaining.
NECA/Local 113 agreement, the agreement was being terminated
It is our position that the notice to terminate is effective according to
its terms.
Because of the agreement is being terminated , it is also our posi-
tion that the Council Industrial Relations ("Council") has not juris-
diction or authority to prescribe the terms of any future agreement
between Collier and Local 113 . Accordingly , Collier will not partici-
pate in any submission to the Council and will not recognize or be
bound by any decision issued by the Council
6 The five items as identified in Respondent 's brief to the CIR were
(1) a wage increase , (2) apprenticeship training contributions; (3) safety
language ; (4) deletion of favored nations language , and (5 ) contract
length . Respondent sought a 3 -year contract . Other issues were noted in
the brief as "resolved or withdrawn "
On 13 May 1986, Lufen, on behalf of the Charging
Party, wrote to Respondent , reiterating its position, stat-
ing that "in the event that Local No. 113 becomes
amendable to further negotiations , we stand ready to
meet with you."
On 22 May 1986, after hearing the presentation by Re-
spondent and without participation by the Charging
Party, CIR issued its ruling on Respondent 's submission.
That decision , inter alia, changed the contract's language
as follows . First, the new contract was to be of a single
year's duration , taking effect 1 June 1986 and remaining
in effect through 31 May 1987. Second , the interest arbi-
tration portions of the contract were to be initiated "by
mutual agreement only." The CIR ruling on the griev-
ance and arbitration clause, as opposed to interest arbi-
tration clause, continued to provide for initial decisions
by representatives of the employer or union with the fol-
lowing "appeal" language in contract section 1 .04(d):
Should the Labor-Management Committee fail to
agree or to adjust any matter, such may be submit-
ted jointly, unilaterally by the parties to this Agree-
ment to the Council on Industrial Relations for the
Electrical Contracting Industry for adjudication.
The Council 's decision will be final and binding on
both parties hereto . The CIR award gave a wage
increase , deleted the "favored nations clause" and
rejected the proposed changes in apprenticeship
training contributions and safety language.
On 4 June 1986, Collier wrote to Respondent 's agent,
Johnson, indicating that he had heard "unofficially" of
the CIR's ruling . The letter reasserted the Charging
Party's view that it was not bound by the CIR or its de-
cision . The letter contained as its final paragraph follow-
ing:
Will you , in good faith, meet with our Company to
negotiate a new contract? I remain , as the Company
always has, willing to confer and negotiate if, in
fact, negotiations of any realistic prospect of being
fruitful . As you now in a position to move off your
adamant stance that your International Union ap-
prove any agreement reached? Similarly, can you
now negotiate a disputes resolution procedure other
than insisting that the CIR be the final arbitrator of
grievances arising under a new agreement? If you
are able, in good faith, to move from those two po-
sitions, then we ought to meet and move ahead. If
not, once again I would assume that you would
agree with me that there is no sense in wasting time
by conducting a meaningless negotiation session. Fi-
nally, unless I hear from you by Monday, June 9,
1986, that you are in a position to negotiate the final
agreement without International approval and an al-
ternative disputes resolution procedure not within
the perview [sic] of CIR , I will simply assume that
your continue in you adamant stance on these two
points . In such event , again , I see no sense in meet-
ing and feel that we are hopelessly at deadlock.
ELECTRICAL WORKERS IBEW LOCAL 13 (COLLIER ELECTRIC)
The parties have not changed their position nor have
they negotiated further.
C. Positions of the Parties
The General Counsel , with the Charging Party's con-
currence , asserts that where there is an interest arbitra-
tion clause in a multiemployer unit contract and an em-
ployer timely withdraws from the unit, that employer is
no longer bound to the clause . If the employer is no
longer bound to the clause, argues the government, sub-
mission by a union of a dispute pursuant to the clause to
the interest arbitration body is an attempt to impose upon
the employer a collective-bargaining representative not
of its chosing in violation of Section 8(b)(1)(13) of the
Act. Further , argues the General Counsel , such a submis-
sion and reliance by a union on the validity of the sub-
mission and any resulting award , constitutes bad-faith
bargaining within the meaning of Section 8(b)(3) of the
Act. Respondent , with the concurrence of the Amici,
argues that the contract and the submission by Respond-
ent in this case were proper and , as a consequence, Re-
spondent 's reliance on both the procedure and the award
do not violate Section 8(b)(1)(B) or (3) of the Act.7
The General Counsel also contends that Respondent's
conduct at the bargaining table also violated Section
8(b)(3) of the Act. Thus, the General Counsel argues
that, although the parties in initial bargaining had ex-
changed proposals calling for a 1-year contract, when
Respondent submitted "disputes" unilaterally to CIR it
sought a 3-year proposal and rationalized its action to
the Charging Party as simply an advocate 's posture.
Second , the General Counsel argues that Respondent
acted in bad faith by rejecting proposals of the Charging
Party which it knew its International would not approve
and by insisting that the International approve any agree-
ment reached . Respondent argued that these collateral al-
legations are beyond the complaint and are otherwise
without merit.
D. Analysis
1. Narrowing the issue
The parties do not dispute and it is clear that the
Charging Party's execution of its Letter of Assent-A
both designated Southern Colorado Chapter of NECA as
the Charging Party's representative and bound the
Charging Party to the contracts negotiated on its behalf
7 Respondent 's answer and amended answer each assert that "the
Board should defer this dispute to the decision of the arbitration -tribunal
issued in this case ." Although this language seems to invoke the Board's
doctrine of deferring to arbitral decisions in certain circumstances, I do
not construe Respondent 's motion as seeking to invoke that doctrine.
Where the motion so construed , it would clearly be without merit, for
the Board has specifically found that the CIR interest arbitration determi-
nations do not meet the Board 's standard for deferral . Electrical Workers
IBEW Local 135 (LaCross Electrical), 271 NLRB 250, 251 (1984) Rather,
I take the argument of Respondent to be the above-described assertion
that , because Respondent utilized valid contractual procedures during
bargaining , no violation of the Act could occurred as a result of its utili-
zation of those procedures
1109
including the most recent contract .8 Nor do the parties
dispute that the Charging Party was bound to the terms
and conditions of the contract through its life, at least
with respect to terms and conditions of employment in-
dependent of the interest arbitration provisions.9
Counsel for the General Counsel in his opening state-
ment clearly indicated that, setting aside bargaining table
conduct not here at issue, the validity of the CIR referral
by Respondent would not be challenged by the govern-
ment but for the circumstances of the Charging Party's
withdrawal from NECA. The General Counsel thus, at
least for the purposes of this case, concedes the validity
of the contractual language and , indeed , the procedures
under CIR, but argues they do not apply to the Charg-
ing Party after its timely withdrawal from the unit and
withdrawal of bargaining rights from NECA.10 What
the General Counsel and the Charging Party are attack-
ing therefore , and what Respondent and the Amici seek
to defend , is the application and effectiveness of the CIR
interest arbitration provisions to an employer who has
timely withdrawn its assent to collective-bargaining rep-
resentation by NECA.
The parties seem to agree that the question presented
involves one of contract interpretation . Thus, the Gener-
al Counsel seems to concede that a collective-bargaining
agreement could by explicit terms bind a single employer
to interest arbitration contract resolution even though it
had withdrawn from a multiemployer bargaining unit
and even though it had rescinded the bargaining author-
ity of the multiemployer collective-bargaining represent-
ative. The United States Courts of Appeal for the Ninth
and Eleventh Circuits have so held. Sheet Metal Workers
Local 57 v. Tampa Sheet Metal Co., 786 F.2d 1459 (11th
Cir. 1986); Sheet Metal Workers Local 420 v. Huggins
Sheet Metal, 752 F.2d 1473 (9th Cir. 1985). Respondent
admits on brief that, were a contract explicit on the
issue, an employer could be released from the strictures
of the interest arbitration provisions of the contract by
the act of timely withdrawal . It is appropriate therefore
to turn to the collective-bargaining agreement for resolu-
tion of the question presented.
2. Interpreting the contract
The contract's preamble states:
9 See Vincent Electric Co, 281 NLRB 903 (1986); Wayne Electric, 226
NLRB 409 (1976), Northern Nevada Chapter, National Electrical Contrac-
tors Assn, 131 NLRB 550 ( 1961).
9 Watson-Rummell Electric Co., 277 NLRB 1401 (1985 ). There is no
contention by any party that the Employer failed to apply the contract's
terms to its employees during the contract 's life.
10 The decision of the CIR involved herein does not impose upon the
parties interest arbitration language which would bind the parties to yet
another cycle of binding interest arbitration Rather it provides for future
interest arbitration only at the parties' mutual consent Language which
requires the Charging Party 's agreement to proceed has no coercive
force on the Charging Party . The award thus avoids the situation where
a party is trapped in an potentially endlessly renewing contract with end-
lessly renewing interest arbitration clauses found improper by the Board
in La Cross Electrical, supra and Sheet Metal Workers. Local 59 (Employ-
ees Assn. of Roofers), 227 NLRB 520 (1976)
1110 . DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD.
Agreement by and between the Southern Colora-
do Chapter, National Electrical Contractors Asso-
ciation , Inc. and Local Union No . 113, IBEW.
It shall apply to all firms who sign a Letter of
Assent to be bound by this Agreement.
The terms "Employer" shall mean an individual
firm who has been recognized by assent to this
Agreement.
The contract 's statement of "basic principals " states:
The Employer and the Union have a common and
sympathic interest in the Electrical Industry . There-
fore, a working system harmonious relations are
necessary to improve the relationship between the
Employer, the Union , and the Public . Progress in
industry demands a mutuality of confidence be-
tween the Employer and the Union. All will benefit
by continuous peace and by adjusting any differ-
ences by rationale common sense methods. Now,
therefore , in consideration of the mutual promises
and agreements herein contained , the parties agree
as follows.
Respondent Amici with the concurrence of Respond-
ent argue that the contract 's preamble specifically refers
to both NECA, the Union and the Employer and explic-
itly binds employers who adopt the contract through the
use of the Letter of Assent . Respondent Amici then
argue that the interest arbitration language, quoted supra,
is a means of resolving contractual disputes as is de-
scribed in the basic principals . The Amici argue that the
interest arbitration "clause does not specify that it applies
only to [NECA] or Local 113, nor does it state, explicit-
ly or implicitly , the parties who withdraw from [NECA]
are no longer bound by the clause." They argue further
that the contract by its terms therefore includes all em-
ployers who sign Letters of Assent . This includes those
who sign Letters of Assent -B which binds those employ-
ers to the contract but does not assign bargaining author-
ity to NECA.
The General Counsel argues on brief:
The Council clause by its own terms, applies to
"the parties to this Agreement ." Respondent may
claim that this phrase was intended to cover a with-
drawn employer . However, such intent was not
clearly and unmistakenly established by the terms of
the contract . In fact, on the contrary , the contract
contemplates that Council provision applies to the
NECA Chapter, and not to those independent em-
ployers , like Collier , who choose to withdraw from
the multi-employer unit.
The General Counsel with the concurrence of the
Charging Party further argues that the contract by its
terms identifies the parties to the agreement as Respond-
ent and the Southern Colorado Chapter of NECA, as set
forth on the contract 's signature page. While conceding
that all employers assenting to the agreement "could be
viewed as parties," "... this broader meaning was not
apparently the one intended ...." Thus, the General
Counsel notes portions . of the collective -bargaining
agreement require "the parties" to submit any contract
change or supplement to the International and NECA
for approval . The General Counsel argues that this use
of "the parties" "obviously does not include each indi-
vidual employer since they would lack authority to ne-
gotiate changes and supplements to a multi-employer
contract." The General Counsel further notes that in
other portions of the collective -bargaining agreement
phrases such as "each individual employer" and "all em-
ployers subject to the terms of this agreement" and
"each employer in assent hereto or otherwise bound by
the agreement" are used to identify individual employers.
The General Counsel thus argues "[t]hese examples of
carefully describing who is bound to a provision suggest
that the drafters of the contract would have chosen more
precise language if they had intended the Council clause
to apply to withdrawn employers."
Further the General Counsel cites the Council 's rules
and policies which it argues "it is reasonable to assume
should be consistent with the true intent of the Council
clause in the contract ." Council Rule 6 states:
6. The Council on Industrial Relations exist primari-
ly to serve the Electrical Contracting Industry, the
nature of which is such that its local labor agree-
ments are all multi -employer agreements containing
terms and conditions uniquely applicable to the
work of the Industry performed in the jurisdiction
of numerous Local Unions. Therefore , the Council
formula envisions cases for adjudication to be sub-
mitted by a Local Union of the I.B.E.W . and/or the
appropriate NECA Chapter or other multi-employ-
er bargaining agent, on behalf of any one, or all, of
its members . However , when no multi-employer
bargaining agent exists, the Council may elect to
accept, upon receipt of a written stipulation, a case
from some other segment of the Electrical Industry
where a Local Union of the I.B.E.W . is involved.
The General Counsel argues:
[t]he above rule indicates that cases involving an in-
dividual employer require a written stipulation for
acceptance by the Council . Apparently the Council
did not envision receiving unilateral submissions
concerning withdrawn employers, and it is unlikely
that the intent of the Council clause was to require
submissions not provided for in the Council 's rules.
In considering the arguments presented above, a
threshold matter is the standard of contractual interpreta-
tion to be applied. Respondent and Amici argue that ar-
bitration is a favored method of resolving disputes and
there is a presumption favoring arbitration. Citing Steel
Workers v. Gulf Navigation , 363 U.S. 574 ( 1960); Nolde
Brothers v. Bakery Workers Local 358, 430 U.S. 243
(1977). Amici state on brief "since the determination of
the instant case depends solely upon an interpretation of
the contract language, not upon any statutory provisions,
[footnote omitted] the presumption noted above should
apply "
ELECTRICAL WORKERS IBEW LOCAL 13 (COLLIER ELECTRIC)
The General Counsel and the Charging Party phrase
the argument differently. The General Counsel starts
with. the argument that Section 8(b)(1)(B) of the Act pro-
tects an employer 's right to select his own representative
for purposes of collective bargaining . Citing Sheet Metal
Workers Local 59, supra, the General Counsel argues that
the waiver of the right of an employer to its own bar-
gaining representative will not be casually imputed. The
General Counsel thus argues that as a right guarantee by
the Act, such a right to designate a representative cannot
be waived without a "clear unmistakeable relinquishment
of that right" citing Metropolitan Edison Co. v. NLRB,
460 U.S. 693 (1983); Gaso Pumps, 274 NLRB 532 (1985);
Gem City Readi-Mix Co., 270 NLRB 1260 (1984); Crest
Beverage Co., 231 NLRB 116 (1977); Tide Water Associat-
ed Oil Co., 85 NLRB 1096 (1949); Butterworth Mortuary,
270 NLRB 1014 (1984); Exxon Company U.S.A., 253
NLRB 213 (1980). Applying that standard to the CIR
language at issue here, an administrative law judge found
that a union was not privileged to envoke interest arbi-
tration against a single employer which had withdrawn
from a multiemployer association . Electrical Workers
IBEW Local 46 (Puget Sound), JD(SF)-84-85.11
The case of Sheet Metal Workers Local 57 Welfare
Fund v. Tampa Sheet Metal Co., supra, although involv-
ing different contract language, strongly supports a find-
ing that an employer's withdrawal from a multiemployer
contract and withdrawal of bargaining authority to a
multiemployer collective-bargaining representative does
not relieve that employer of its contractual responsibil-
ities under an interest arbitration clause . In that case,
there was no specific reservation language in the con-
tract of the kind the General Counsel seems to argue
would be necessary to bind a withdrawing employer yet
the Court held the employer was bound to the contract's
interest arbitration provisions . Nor does the court use the
"clear and unmistakable waiver" analysis urged by the
government here.
The Board's decision in Sheet Metal Workers Local 59,
227 NLRB 520 (1976) on which the General Counsel
relies in part is distinguishable from the instant case. In
that case the respondent union had invoked dispute reso-
lution procedures in order to perpetuate, against an em-
ployer's will, new contract dispute resolution procedures.
This is the specter of the endlessly renewing contract. In
that context, the Board concluded that the selection by
the parties , including employers, of a body or entity to
resolve disputes associated with the collective-bargaining
process would not be casually imputed . The Board also
held, at 521, that an initial waiver of a bargaining right in
such circumstances would not in any way "impair a
party's right to demand that this nonmandatory topic not
act as a barrier to any future negotiations ." I find there-
fore that that case does not apply to the situation pre-
sented here where there was no issue regarding the re-
newal of the binding interest arbitration clause.12
II Judge Gordon J Myatt 's decision is now before the Board on ex-
ceptions Since the decision is before the Board for resolution, Judge
Myatt's decision is without precedential value. [Judge Myatt 's decision
issues with Board case 302 NLRB No 39 (Mar. 29 , 1991).]
12 As discussed earlier in the decision , the language of the CIR award
regarding interest arbitration in the new contract requires agreement be-
Having considered all of the above, and in particular
the language of the contract and the U.S. circuit court
cases cited , supra . I conclude that the contract does not
by its terms relieve the Charging Party of the obligations
contained in the disputes resolution clause, at least with
respect to those issues submitted by Respondent to CIR.
I, therefore, conclude that Respondent did not violate
Section 8(b)(1)(B) or (3) of the Act by utilizing the CIR
procedures. In so ruling , I am aware that the decision of
Judge Myatt in Electrical Workers Local 46 (Puget
Sound), supra, if sustained by the Board , may require a
different result.
Having concluded that the submission to CIR by Re-
spondent did not violate Section 8(b)(3) or Section
8(b)(1)(B) of the Act„I further find that Respondent has
not violated the Act otherwise by its bargaining table
conduct. This is so because, given the validity of the sub-
mission, the Charging Party's conduct in repudiating the
dispute resolution process so affected the bargaining
process that the Union's bargaining practices, on this
record do not rise to the level of violation. Unless and
until the Charging Party accepts the validity of the sub-
mission by Respondent and the CIR award, there is no
basis to find the Union's conduct a violation of the Act.
Thus, it is clear and I find that, because Respondent's
dispute resolution submission is not a violation of the
Act, its bargaining conduct, including its conduct follow-
ing the Employer's repudiation of the CIR submission
and award, does not constitute a violation of Section
8(b)(1)(B) and (3) of the Act. Accordingly, I shall rec-
ommend the complaint be dismissed in its entirety.
Summary and Conclusion
I have found that the General Counsel's entire com-
plaint turned on the propriety of Respondent' s submis-
sion of disputed bargaining issues to CIR and the validity
of the CIR award given the Charging Party's timely
withdrawal of its Letter of Assent-A. I have concluded
that Respondent's submission to CIR was proper and did
not violate Section 8(b)(1)(B) and (3) of the Act. I
reached this conclusion because I have determined that
the Employer's timely withdrawal of its Letter of
Assent-A did not by the terms of the contract, viewed in
light of current legal authority, revoke or otherwise pre-
vent the interest arbitration clause of the then current
contract for applying to the Employer as an single em-
ployer for purposes of interest arbitration. Further, I
concluded that if the CIR submission was proper, Re-
spondent's other conduct did not rise to the level of bad-
faith bargaining. Having so concluded, I have deter-
mined that Respondent has not violated the Act and it is
appropriate to dismiss the complaint in its entirety.
tween the parties prior to institution of its processing and is therefore en-
tirely permissive and has no binding effect on the Charging Party herein
The award also contains a provision that , in the grievance and arbitration
process, unresolved disputes will be submitted to the CIR for binding res-
olution Such an award regarding a nonmandatory subject would raise
additional questions but for the fact that Respondent in no way sought
such award from the CIR Whatever questions might arise , should the
Union insist on the validity of this portion of the CIR award, if the
Charging Party were otherwise accepting the remaining provisions of the
award , are not yet ripe for resolution.
1112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Charging Party is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent did not violate Section 8 (b)(1)(B) and
(3) during its negotiations with the Charging Party in
1986 nor in submitting certain disputed issues to CIR
during that period.
On these findings of fact and conclusions of law, and
on the entire record in this case , I issue the following
recommended 13
ORDER
The complaint shall be dismissed in its entirety.
" If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses