Sheet Metal Workers International Association Local Union 206

National Labor Relations Board - Board Decisions

Jun 11, 1990

298 N.L.R.B. 760 (N.L.R.B. 1990)

760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers International Association
Local Union 206 and Warrens Industrial Sheet
Metal and West Coast Sheet Metal Company.
Cases 21-CB-9660, 21-CB-9662, and 21-CB-
9687
June 11, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On March 10, 1987, Administrative Law Judge
Joan Wieder issued the attached decision. The Re-
spondent filed exceptions and a supporting brief
and Charging Party West Coast Sheet Metal Com-
pany (West Coast) filed an answering brief and a
cross-exception with a supporting brief.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
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 only to the extent consistent with this
Decision and Order.
1. FACTS
The amended consolidated complaint alleges,
and the answer admits, that the Respondent is the
exclusive bargaining representative, pursuant to
Section 9(a) of the Act, of the employees of both
Warrens Industrial Sheet Metal (Warrens) and
West Coast in the units described in the amended
consolidated complaint.
Warrens and West Coast were members of the
San Diego Chapter of the Sheet Metal and Air
Conditioning Contractors' National Association
(SMACNA) when it entered into a collective-bar-
gaining agreement with the Respondent in 1983.
The agreement contained an interest arbitration
provision (art. X, sec. 8), set forth in pertinent part
in section I, A, of the judge's decision.
Warrens and West Coast timely withdrew from
SMACNA prior to the expiration of the 1983
agreement on July 1, 1986.2 The Respondent then
' Following issuance of the judge's decision, motions to intervene were
filed on March 30, 1987, by Sheet Metal Workers International Associa-
tion (SMWIA) and various Sheet Metal Workers pension, health, and
training funds (collectively, the Trust Funds) SMWIA and the Trust
Funds each filed conditional exceptions to the judge's decision with a
supporting bnef On April 27, 1987, the Sheet Metal and Air Condition-
ing Contractors National Association, Inc. (SMACNA) filed a motion to
intervene, conditional exceptions, and a supporting bnef The General
Counsel filed a response in which she did not oppose the motions of
SMWIA and SMACNA but did oppose that of the Trust Funds. West
Coast filed an opposition to all motions to intervene We deny the mo-
tions but do grant amicus curiae status to each proposed intervenor We
have considered the briefs accordingly.
2 All dates are in 1986 unless otherwise indicated
met six times in negotiating sessions with Warrens,
and met with West Coast on separate occasions be-
tween May 20 and June 18. However, no agree-
ments were reached and on June 27, the Respond,
ent invoked interest arbitration as provided for in
the expiring SMACNA agreement. Warrens and
West Coast protested the Respondent's resort to in-
terest arbitrations and separately informed the Re-
spondent that in 1984, the interest arbitration provi-
sion had been removed from the SMACNA agree-
ment. They further argued that even if the interest
arbitration remained in the SMACNA agreement,
their withdrawal from SMACNA terminated its
applicability.
With respect to the alleged removal of the inter-
est arbitration provision, it is undisputed that on
May 29, 1984, SMACNA, by the executive manag-
er of the San Diego Chapter, Charles Baxter, sent
the Respondent a letter stating it was invoking the
"most-favored-nation" clause of its collective-bar-
gaining agreement to eliminate the interest arbitra-
tion provision (art. X, sec. 8) from the agreement.
The Respondent did not reply to this letter during
the term of the contract. It is also undisputed that
during subsequent midterm negotiations, on June
18, 1984, Jerry Thompson, a union negotiator, ac-
knowledged that article X, section 8, had been re-
moved from the contract by the invocation of the
most-favored-nation clause. Warrens President
David M. Oliver and his legal counsel discussed ar-
ticle X, section 8, with Jerry Thompson after War-
rens had withdrawn from SMACNA. According
to the credited testimony, Thompson said, "I don't
understand why you contractors want Article X,
Section 8 out, and it is out, and-because you guys
wanted it in the first place." The Respondent, how-
ever, contends that SMACNA's action was ineffec-
tive because the most-favored-nation clause was
not properly used to delete the interest arbitration
provision. Thus the Respondent argues that it has
never offered terms and conditions more favorable
than article X, section 8 to any other employer.
Over the objections of Warrens and West Coast,
the Respondent referred the negotiations deadlocks
to the National Joint Adjustment Board (NJAB) as
provided in article X, section 8 of the SMACNA
agreement. On July 10, West Coast filed a griev-
ance under the grievance procedure of the
SMACNA agreement concerning the applicability
of article X, section 8. In a letter dated August 19,
West Coast protested interest arbitration on the
ground that it had been removed from the contract
and that, in any event, it could not be applied to
employers who had timely withdrawn from
SMACNA. On August 1, Warrens wrote a letter to
298 NLRB No. 107
SHEET METAL WORKERS LOCAL 206 (WARRENS INDUSTRIAL)
the NJAB asserting that it lacked jurisdiction to ar-
bitrate the matter.
West Coast did not appear at the NJAB hearing,
which was held in Denver, Colorado. The NJAB
issued a unanimous decision to resolve the West
Coast deadlock, which provided that the parties
execute an agreement using the Standard Form of
Union Agreement, which would be effective July
1, 1986, through June 30, 1989, and which, inter
alia, included article X, section 8. The NJAB deci-
sion also contained a provision stating that it is not
the intent of NJAB to impose any nonmandatory
subjects of bargaining on an unwilling party and
that if the NLRB or any court found a provision of
the imposed agreement was not a mandatory sub-
ject, that provision would be deleted and referred
back to the NJAB if the parties could not agree on
a replacement for the disputed provision. (The full
text of the provision is set forth in sec. I,A, of the
judge's decision.)
On October 7, the NJAB met in San Diego,
California, to decide the Warrens deadlock. A
Warrens representative appeared at the hearing. On
October 21, the NJAB issued a decision that re-
quired the parties to execute an agreement identical
to the multiemployer collective-bargaining agree-
ment for the San Diego area with certain listed
changes, which is effective July 1, 1986, through
June 30, 1989, and from which article X, section 8,
was deleted. The decision contained the provision
described above concerning the deletion of provi-
sions found not to be mandatory subjects of bar-
gaining.
On August 18, the Respondent filed a petition in
the United States District Court for the Southern
District of California for an order confirming the
West Coast NJAB award.
II. ANALYSIS AND CONCLUSIONS
The issue in this case is whether the Respondent
violated Section 8(b)(1)(B) and (3) of the Act by
(a) unilaterally submitting unresolved bargaining
issues between it and West Coast and Warrens to
the interest arbitration procedures contained in the
expiring collective-bargaining agreement between
the Respondent and SMACNA of San Diego, after
the Employers had timely withdrawn from and re-
voked their assignment of bargaining rights to
SMACNA, and (b) by seeking Federal Court en-
forcement against West Coast of an arbitration
award rendered by the NJAB pursuant to the con-
tractual interest arbitration procedures.
This same general issue was'recently resolved by
the Board in Electrical Workers Local 113 IBEW
(Collier Electric), 296 NLRB 1095 (1989), which
issued after the judge's decision in the instant case.
761
There, the Board majority, with Chairman Ste-
phens dissenting, set forth a framework for analysis
of this general issue, under which the Board first
considers whether there is a reasonable basis in fact
and law for a union 's submission of unresolved bar-
gaining issues to interest arbitration, i.e., whether
the collective-bargaining agreement in question ar-
guably still binds a single employer, who has
timely withdrawn from the multiemployer associa-
tion, to the contractual interest arbitration provi-
sions. If it is determined that the collective-bargain-
ing agreement at least arguably still binds the em-
ployer to the interest arbitration provisions, the
union will be free to seek enforcement of those
provisions, including pursuit of a court suit to en-
force the contract, without violating Section
8(b)(1)(B) or (3) of the Act. On the other hand, the
majority in Collier held that if the collective-bar-
gaining agreement does not even arguably bind the
single employer to the interest arbitration provi-
sions, then the union 's submission of unresolved
bargaining issues to interest arbitration would con-
stitute bad-faith bargaining and coercion of the em-
ployer in the selection of its collective-bargaining
representative, in violation of Section 8(b)(1)(B).
The Collier majority went on to emphasize, howev-
er, that the presence of an interest arbitration pro-
vision in a collective-bargaining agreement does
not relieve employers and unions of their responsi-
bilities to engage in good-faith bargaining and, on
proper invocation of its jurisdiction, the Board will
review the bargaining for a renewal agreement to
ensure that the parties have bargained in good faith
prior to the submission of any unresolved issues to
interest arbitration. Id. at 1098-1099.
Recently, in Sheet Metal Workers Local 54 (Texas
Sheet Metal), 297 NLRB 672 (1990), we applied the
Collier framework for analysis to facts substantially
similar to those in the instant case . Indeed, the in-
terest arbitration provisions at issue in Texas Sheet
Metal are identical in all material respects ' to those
at issue here-article X, section 8 of the Standard
Form of Union Agreement (SFUA) for the Sheet
Metal, Roofing, Ventilation and Air Conditioning
Contracting Divisions of the Construction Indus-
try. See also Sheet Metal Workers Local 283 (Condi-
tioned Air), 297 NLRB 658 (1990).
As in Collier and Texas Sheet Metal, the collec-
tive-bargaining agreement in the instant case does
not contain language explicitly stating that an em-
ployer who has withdrawn from the multiemployer
association is no longer bound to the contractual
interest arbitration provisions. Moreover, as in
Texas Sheet Metal, the interest arbitration provi-
sions in this case refer preliminarily to the settle-
ment of controversies or disputes arising out of the
762 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
failure of "the parties" to negotiate a renewal
agreement, and refer thereafter to "differences be-
tween the parties" and the unilateral right of
"either party" to submit unresolved disputes to the
NJAB upon unsuccessful completion of certain
local initial attempts at dispute resolution. Finally
in this regard, as in Texas Sheet Metal, the instant
interest arbitration provisions provide that the
unanimous decisions of the NJAB shall be binding
"upon the parties." We find that these contract
provisions, like the contract provisions in question
in Texas Sheet Metal and Collier, could arguably be
interpreted as binding each employer to the interest
arbitration provisions , as a single employer on
whose behalf those provisions were negotiated and
agreed to by SMACNA, at a time when the Em-
ployer was still a member of and had not yet re-
voked the assignment of its bargaining rights to
SMACNA.
Based on all the above factors, we find that the
interest arbitration provisions in question, like the
almost identical ones in Texas Sheet Metal, could at
least arguably be interpreted as binding on the Em-
ployers.
In reaching this conclusion, we have additionally
considered the assertion of West Coast and War-
rens that article X, section 8, had been eliminated
from the 1983-1986 collective-bargaining agree-
ment in 1984 through SMACNA of San Diego's in-
vocation of the most-favored-nation clause. We
note that the Respondent excepts to the judge's
finding that it conceded in June 1984 that
SMACNA of San Diego's action was sufficient to
elimate article X, section 8. Further, the Respond-
ent argues that the Employers' position that the in-
terest arbitration clause must be deleted pursuant to
the most-favored-nation clause is meritless because
the Respondent had never offered terms and condi-
tions more favorable than article X, section 8 to
any employer. Thus the Respondent contends that
the most-favored-nation clause is inapplicable to
the current situation. The Respondent's arguments
constitute a sufficient basis for finding that in 1986
the collective-bargaining agreement at least argu-
ably bound the Employers to the interest arbitra-
tion procedure that the Respondent invoked.
Accordingly, we find that there is a reasonable
basis in fact and law for the Respondent's submis-
sion of unresolved bargaining issues to interest arbi-
tration.
Finally, the record does not show that the inter-
est arbitration mechanism was used by the Re-
spondent to relieve it of its duty to bargain with
the Employers for a new contract. Rather, the evi-
dence shows that the Respondent met six times in
negotiating sessions with Warrens, and met with
West Coast on separate occasions to discuss many
subjects between May 20 and June 18, prior to the
Respondent's contractually defensible unilateral de-
termination that negotiations for a renewal contract
were deadlocked and its consequent submission of
the issues to interest arbitration. There is no evi-
dence that the Respondent engaged in bad-faith
bargaining either before or after its submission of
unresolved issues to the NJAB.3
In light of all the above considerations, we con-
clude that the Respondent did not violate Section
8(b)(1)(B) and (3) as alleged.4
ORDER
The complaint is dismissed.
CHAIRMAN STEPHENS, dissenting in part.
I would find, for the reasons set forth in my dis-
senting opinions in Electrical Workers Local 113
IBEW (Collier Electric), 296 NLRB 1095 (1989),
and Sheet Metal Workers Local 54 (Texas Sheet
Metal), 297 NLRB 672 (1990), that the Respondent
violated Section 8(b)(1)(B) and (3) of the Act, as
alleged , by: (1) insisting, in its separate negotiations
with West Coast and Warrens, that unresolved bar-
gaining issues be settled through the interest arbi-
tration provisions of the 1983-1986 collective-bar-
gaining agreement' and (2) filing a petition in Fed-
eral district court to confirm the resulting NJAB
arbitration award with respect to West Coast.
3 The judge found that the Respondent violated Sec 8(b)(1)(B) and (3)
prior to unilaterally submitting unresolved bargaining issues to the NJAB
by insisting to impasse that the interest arbitration clause, a nonmanda-
tory subject of bargaining , be carried over and included in the successor
agreement . We note that the record is silent regarding whether the Re-
spondent ever negotiated for the inclusion of interest arbitration in the
new collective-bargaining agreement Because this violation was neither
alleged nor litigated , we reverse the judge's finding that the Respondent
violated the Act in this regard.
4 We note that the West Coast NJAB award contains another interest
arbitration clause that is a nonmandatory subject of bargaining Tampa
Sheet Metal Co, 288 NLRB 322 (1988) However, that award also con-
tains a proviso stating that any provision of the imposed collective-bar-
gaining agreement found nonmandatory by the Board or a court will be
deleted and referred back to the NJAB if the parties cannot agree on a
replacement for the disputed provision Thus, in light of this proviso, the
NJAB award will not "saddle" the parties with "a perpetual cycle of
binding interest arbitration " Collier, supra at fn 9
1 1 find it unnecessary to settle the disputed issue of whether the con-
tract's interest arbitration clause, art X, sec 8 , had been deleted in 1984
through SMACNA of San Diego 's invocation of the most favored nation
clause Under my view of Collier, the Respondent would have violated
the Act, as alleged , in either case.
Robert R. Petering, Esq., for the General Counsel.
Richard D. Prochazka, Esq., for the Respondent.
James K Smith, Esq., for the Charging Party.
SHEET METAL WORKERS LOCAL 206 (WARRENS INDUSTRIAL) 763
DECISION
STATEMENT OF THE CASE
JOAN WIEDER, Administrative Law Judge. These con-
solidated cases were tried at San Diego, California, on 18
November 1986 1 pursuant to an amended complaint
dated 4 November which was further amended at the
hearing. The complaint was based on charges filed by
W. G. Ehmcke Sheet Metal Works (Ehmcke)2 on 30
June, Warrens Industrial Sheet Metal Works (Warrens)
on 25 July, and West Coast Sheet Metal Company (West
Coast) on 25 July and 19 August. The amended com-
plaint alleges Sheet Metal Workers International Asso-
ciation, Local 206, AFL-CIO (Respondent or Union)
violated Section 8(b)(1)(B) and (3) of the National Labor
Relations Act (Act), by invoking an "interest arbitration"
provision of an expiring multiemployer collective-bar-
gaining agreement over the objections of Warrens and
West Coast who had timely withdrawn from the multi-
employer association and bargained individually with the
Union. The complaint further alleges that Respondent
violated Section 8(b)(1)(B) of the Act by seeking to en-
force an award purporting to bind West Coast. The
award was made pursuant to the "interest arbitration"
provisions by the National Joint Adjustment Board
(NJAB), which contained a "second generation interest
arbitration" clause and other nonmandatory subjects of
bargaining.
Respondent, in its answer, denied the commission of
any unfair labor practices. Respondent admits, and I find,
the Employers meet one of the Board's applicable discre-
tionary jurisdictional standards; and Warrens and West
Coast are employers engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. Respondent
also admits, and I find, that it is a labor organization
within the meaning of Section 2(5) of the Act.
FINDINGS OF FACT
1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Warrens and West Coasts were members of the San
Diego Chapter of the Sheet Metal and Air Conditioning
Contractors' National Association (SMACNA) when it
entered into a collective-bargaining agreement with the
Union in 1983. The agreement contained an "interest ar-
bitration" provision as part of what the Union refers to
as its "Standard Form of Union Agreement," Form A-3-
83. Article X, section 8, of this agreement is one of the
specific provisions in issue and provides as here perti-
nent:
SECTION 8. In addition to the settlement of
grievances arising out of interpretation or enforce-
ment of this agreement as set forth in the preceding
sections of this Article, any controversy or dispute
arising out of the failure of the parties to negotiate a
renewal of this agreement shall be settled as herein-
after provided:
(a) Should the negotiations for renewal of this
agreement become deadlocked in the opinion of the
Local Union or of the Local Contractors' Associa-
tion, or both, notice to that effect shall be given to
the office of the General President of Sheet Metal
Workers' International Association and the national
office of the Sheet Metal & Air Conditioning Con-
tractors' National Association, Inc. If the General
President of Sheet Metal Workers' International As-
sociation and Chairman of the Labor Committee of
Sheet Metal and Air Conditioning Contractors' Na-
tional Association, Inc. believe the dispute might be
adjusted without going to final hearing before the
National Joint Adjustment Board, each will then
designate a panel representative who shall proceed
to the locale where the dispute exists as soon as
convenient, attempt to conciliate the differences be-
tween the parties and bring about a mutually ac-
ceptable agreement. If such panel representatives or
either of them conclude that they cannot resolve
the dispute, the parties thereto and the General
President of Sheet Metal Workers' International As-
sociation and the national office of Sheet Metal and
Air Conditioning Contractors' National Association,
Inc. shall be promptly so notified without recom-
mendation from the panel representatives. Should
the General President of Sheet Metal Workers'
International Association or the Chairman of the
Labor Committee of Sheet Metal and Air Condi-
tioning Contractors' National Association, Inc- fail
or decline to appoint a panel member or should
notice of failure of the panel representatives to re-
solve the dispute be given, the parties shall prompt-
ly be notified so that either party may submit the
dispute to the National Joint Adjustment Board.
The dispute shall be submitted to the National
Joint Adjustment Board pursuant to the rules as es-
tablished and modified from time to time by the Na-
tional Joint Adjustment Board. The unanimous de-
cision of said Board shall be final and binding upon
the parties, reduced to writing, signed and mailed to
the parties as soon as possible after the decision has
been reached. There shall be no cessation of work
by strike or lockout unless and until said Board fails
to reach a unanimous decision and the parties have
received written notification of its failure.
' All dates are in 1986 unless otherwise indicated.
2 Counsel for General Counsel moved to sever Case 21-CB-9633 based
on Ehmcke's request to withdraw its charge in the case and to have this
portion of the proceeding remanded to the Regional Director for further
appropriate proceedings The motion was granted, and the consolidated
complaint was correspondently amended.
8 Respondent admitted the units described in the complaint , as amend-
ed, are appropriate
I note these provisions specifically refer to SMACNA
and the Union.
It is undisputed Warrens and West Coast timely with-
drew from SMACNA prior to the expiration of the 1983
agreement on 1 July (SMACNA contract). Respondent
negotiated independently with Warrens and West Coast,
but no agreements were reached by 27 June so the
764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union invoked the procedures contained in article X,
section 8 , of the expiring SMACNA agreement. Warrens
and West Coast strongly protested the Union 's resort to
the "interest arbitration" provision . West Coast and War-
rens separately informed the Union that in 1984 , article
X, section 8, had been removed from the SMACNA
agreement , and even if article X, section 8, was in the
SMACNA contract , their withdrawal from SMACNA
terminated its applicability . It is unrefuted, like most of
the facts in this case , that on 29 May 1984 SMACNA, by
the executive manager of the San Diego Chapter,
Charles Baxter , sent Respondent a letter stating it was in-
voking the "most favored nation" clause of their collec-
tive-bargaining agreement to eliminate article X, section
8, from the agreement . Respondent did not reply to this
letter during the term of the contract . Baxter testified,
without refutation , that during subsequent midterm nego-
tiations , on 18 June 1984, Jerry Thompson, a union nego-
tiator, acknowledged that article X, section 8, had been
removed from the contract by the invocation of the
"most favored nation" clause. This testimony is substanti-
ated by the minutes of this negotiating session. These
minutes were seconded as correct in this regard by the
Union at the next negotiating session held 26 June 1984.
The Union never objected to SMACNA over its invoca-
tion of the "most favored nation" clause of the contract
to delete article X, section 8, from the agreement. The
Union now contends SMACNA 's action was ineffective
for the "most favored nation" clause was not properly
used to delete the "interest arbitration" clause.
After Warrens withdrew from SMACNA and com-
menced negotiations with the Union , its president, David
M. Oliver, and his legal counsel discussed article X, sec-
tion 8, with Jerry Thompson . Thompson said , "I don't
understand why you contractors want Article X, Section
8 out, and it is out, and-because you guys wanted it in
the first place." Oliver testified in a convincing and
forthright manner , and his unrefuted testimony is cred-
ited.
After negotiations with Warrens and West Coast were
deemed deadlocked by the Union , it informed them it
was resorting to the procedures of article X, section 8. In
addition to protesting this action on the basis that the
provision was removed from the SMACNA contract in
1984, West Coast asserted that interest arbitration was in-
applicable to employers who had withdrawn from the
multiemployer association.
Over the employers ' objections , the negotiation dead-
locks were referred to the National Joint Adjustment
Board (NJAB). The NJAB is comprised of representa-
tives of SMACNA and the Union . Neither West Coast
nor Warrens have a representative on the NJAB. West
Coast filed a grievance on 10 July under article X, sec-
tion 1, of the SMACNA contract with the Union and
sent a copy of the grievance to the Local Joint Adjust-
ment Board (LJAB). The LJAB has an equal number of
representatives from the Union and SMACNA San
Diego . The first step of the grievance procedures had
been completed without resolution of the conflict regard-
ing the applicability of article X, section 8, of the
SMACNA contract . West Coast, in a letter dated 19
August, protested the procedure on the same basis it had
previously voiced to the Union ; and Warrens on 1
August wrote a letter to the NJAB asserting that it
lacked jurisdiction to arbitrate the matter.
The NJAB convened in Denver , Colorado, and a
hearing was conducted although neither Warrens nor
West roast appeared . The NJAB issued a unanimous de-
cision to resolve the West Coast deadlock . The decision
of the NJAB contained the following provisions:
1. The parties shall execute an agreement using
Standard Form of Union Agreement A-3-86, which
shall contain the following terms in addition to all
items agreed-upon locally.
2. The agreement shall be three years in length,
effective July 1, 1986 through June 30, 1989.
3. The wage rate for journeyman shall increase
by $1.00/hour effective July 1 , 1986, $.50/hour ef-
fective July 1, 1987, and $.50/hour effective July 1,
1988.
4. Article X, section 8, shall be included.
5. No other changes.
It is not the intent of the Board [NJAB] to impose any
nonmandatory subjects of bargaining on an unwilling
party. In the event the NLRB or any court having juris-
diction over the matter finds any provision of the agree-
ment imposed is not a mandatory subject, that provision
will be deleted . In such event , the parties are directed to
enter into negotiations to replace that provision. In the
event the parties cannot agree upon a replacement for
the disputed section , the Board [NJAB] retains jurisdic-
tion to resolve that issue.
The Standard Form Agreement A-3-86 contains addi-
tional references to the NJAB; and in article VIII, sec-
tions 12(a) and (b), the agreement requires contributions
by the employer to the Sheet Metal and Air Condition-
ing Contractors National Industry Fund which is gener-
ally for industry promotion, training,' and administration.
The fund is administered by a trust . Only SMACNA
members administer the trust and can sit as trustees.
The NJAB referred the Warrens' deadlock to a sub-
committee which was to meet in San Diego at a later
date. A Warrens ' representative appeared at the subcom-
mittee's proceedings . The subcommittee met on 7 and 21
October and issued a decision which was adopted by the
NJAB. As here pertinent, the decision provided:
1. The parties shall execute an agreement identi-
cal to the multi -employer collective bargaining
agreement for the San Diego area, with the changes
noted below.
2 The agreement shall be three years in length,
effective July 1 , 1986 through June 30, 1989.
3. The first employee shall be a Journeyman with
the full rate of pay and full payment of all other
funds established in the agreement , the next three
employees may be Industrial Helpers at a pay rate
of fifty percent of the basic Journeyman hourly rate
in effect. Industrial Helpers shall be covered under
the Local 206 Health and Welfare, "Plan B," no
other fund payments are required on Industrial
Helpers.
SHEET METAL WORKERS LOCAL 206 (WARRENS INDUSTRIAL`)
4. The ratio of Industrial Helpers (3) to Journey-
men (1) may not be exceeded but may be repeated
in the same manner as in 3, above. The employer
will not be permitted to employ apprentices and
pre-apprentices.
5. The hourly wage rate for Journeymen shall in-
crease by $1.00 effective July 1, 1986, $.50 effective
July 1, 1987 and $.50 effective July 1, 1988.
6. Article X Section 8 shall be deleted from the
Agreement.
7. No other changes are ordered except those
agreed upon locally.
It is not the intent of the Subcommittee to impose
any non-mandatory subjects of bargaining on an un-
willing party. In the event the NLRB or any court
having jurisdiction over the matter finds any provi-
sion of the agreement imposed not a mandatory sub-
ject, that provision will be deleted. In such event,
the parties are directed to enter into negotiations to
replace that provision of the contract with a manda-
tory provision. In the event the parties cannot agree
upon a replacement for the disputed section, the
Board (NJAB) retains jurisdiction to resolve that
issue.
Your attention is directed to the following lan-
guage contained in the procedural rules of the Na-
tional Joint Adjustment Board:
Decisions of these Subcommittees shall be final
and binding upon the parties, reduced to writing,
signed and mailed to the National Joint Adjustment
Board for distribution to the parties as soon as prac-
ticable afterthe decision has been reached.
The amended complaint does not allege that the penul-
timate paragraph of the above-quoted subcommittee de-
cision is a "second generation interest arbitration" clause,
or that this award contained other terms concerning non-
mandatory subject of bargaining. Inasmuch as the evi-
dence on the issue was admitted without objection, and
it parallels the allegations concerning West Coast, I find
the matter was fully and fairly tried. The multiemployer
agreement, which is the successor to the SMACNA con-
tract, does not contain article X, section 8, but does have
provisions which continue to utilize the NJAB under ar-
ticle VI, section 4, and article VII, section 12, requires
contributions to industry funds exclusively administered
by SMACNA trustees. Further, sections of article X
refer to the LJAB, which, as described above, is com-
posed of equal numbers of representatives of SMACNA
San Diego and Local 206. As rioted above, the NJAB re-
quired Warrens to execute an agreement identical to
SMACNA's, which included provisions for contributions
to industry trust funds.
Respondent, on 18 August, filed a petition in the
United States District Court for the Southern District of
California for an order confirming the NJAB award,
denominating that award as a labor arbitration award.
B. Analysis and Conclusions
Section 8(b)(1)(B) of the Act provides that: "[i]t shall
be an unfair labor practice for a labor organization . . .
to restrain or coerce . . . an employer in the selection of
765
his representative for the purposes of collective bargain-
ing or the adjustment of grievances." As noted in Florida
Power & Light v. Electrical Workers, 417 U.S. 790, 798,
803 (1974), Congress' primary concern in enacting Sec-
tion 8(b)(1)(B) was to prevent unions from forcing em-
ployers to consent to multiemployer bargaining.
Section 8(b)(3) of the Act provides that it shall be an
unfair labor practice "to refuse to bargain collectively
with an employer, provided it is the representative of his
employees subject to the provisions of Section 9(a)." It is
undisputed that Respondent represents Warrens' and
West Coast's employees in appropriate units.
There have been a number of cases dealing with arti-
cle X, section 8, of the SMACNA agreement , and these
decisions clearly find this provision to be an "interest ar-
bitration" clause. See, for example, NLRB v. Sheet Metal
Workers Local 38, 575 F.2d 394 (2d Cir. 1978), enf. 231
NLRB 699 (1977); and Sheet Metal Workers Local 14 v.
Aldrich Air Conditioning, 717 F.2d 456 (8th Cir. 1983).
Cf. Sheet Metal Workers Local 263 (Sheet Metal Contrac-
tors), 272 NLRB 43 (1984), which specifically held that
article X, section 8, of the SMACNA contract was a
nonmandatory subject of bargaining and insistence to im-
passe on the clause violated Section 8(b)(1)(B) and (3) of
the Act. Similarly, contributions to industry funds is con-
sidered a nonmandatory subject of bargaining. Detroit
Resilient Floor Decorators Carpenters Local 2265 (Mill
Floor Covering), 136 NLRB 769, 771, 772 (1962), enfd.
317 F.2d 269 (6th Cir. 1963).
I find that by declaring deadlocks in its negotiations
with West Coast and Warrens and invoking the provi-
sions of article X, section 8, of the SMACNA contract,
Respondent insisted to impasse on nonmandatory sub-
jects of bargaining in violation of Section 8(b)(1)(B) and
(3) of the Act. Sheet Metal Workers Local 59 (Employers
Assn.), 227 NLRB 520 (1976). I further find that the
Union's failure to mention the applicability of interest ar-
bitration or contributions to industry funds prior to de-
claring a deadlock' and referring the negotiations to the
NJAB was a tactic to force negotiations to deadlock or
impasse to permit the submission of the dispute to the
NJAB. Id. This conclusion is buttressed by the undis-
puted evidence that Respondent assured both West Coast
and SMACNA during the course of collective bargain-
ing that the provisions of article X, section 8, of the
SMACNA agreement were no longer applicable. An-
other consideration is that West Coast and Warrens do
not have representatives on the NJAB. On the contrary,
since their withdrawal from SMACNA, the members of
the NJAB are either their competitors who are members
of SMACNA or the Union, their bargaining adversary,
"[t]hus, the Union's conduct in this case amounted to
more than insistence or an `attempt at persuasion in the
free market place of ideas,' but instead involved tactics
calculated to circumvent the normal free play of bargain-
ing in order to force the [Employer] to abrogate its right
to choose its own bargaining representative."4 The
Board further held in this case:
4Id at 521 , citing NLRB v. Borg-Warner Corp, 356 U,S 342 (1958)
To hold otherwise would be antithetical to concerns of Congress which
Continued
766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
. . . we are also cognizant of the well-settled princi-
ple that, one having agreed to a nonmandatory
term, does not thereafter impliedly waive the right
to insist that the term be removed from the bargain-
ing table in any subsequent negotiations. Allied
Chemical Workers Local I v. Pittsburgh Plate Glass
Co., 404 U.S. 157, 187 (1971). A violation of this
latter principle is, however, the precise effect that
would flow from a failure to find a violation of Sec-
tion 8(b)(3) in cases such as the instant one. Because
the nonmandatory subjects in issue here deal with
contract dispute resolution, the very procedures in
controversy could always be invoked to determine
their continued force and effect, with the very real
prospect of a perpetual existence for the nonmanda-
tory contract term.
One can hardly conceive of a more fundamental
right embodied in our Act than the right of both
employees and employers to bargain collectively
through representatives of their own choosing.
Thus, while it is clear that the parties may agree to
substitute another individual or entity to resolve dis-
putes associated with the collective-bargaining proc-
ess, it is also true that the right to select one's own
bargaining representative is so basic and important
that its relinquishment will not be casually imputed,
nor will an initial waiver of that right in any way
impair a party's right to demand that this nonman-
datory topic not act as a barrier to any future nego-
tiations. Id. at 521.
The same reasoning obtains in the instant proceeding.
That the Union invoked the "interest arbitration" provi-
sions of the SMACNA contract 3 days before the agree-
ment expired does not alter the conclusion that West
Coast and Warrens are not required to relinquish their
rights to choose their own bargaining representatives in
determining the terms of a future contract. Carpenters
(McCloskey & Co.), 137 NLRB 1583, 1604 (1962). To
hold otherwise would result in requiring the employers
who chose in a timely manner to withdraw from the
multiemployer bargaining association to be subject to
collective-bargaining dispute resolution by that associa-
tion and the Union. In the case of West Coast, the NJAB
required future relinquishment of its right to select its
own representative in collective-bargaining dispute reso-
lution: Warrens and West Coast clearly objected to sub-
mission of collective-bargaining disputes to the NJAB
after being informed that the Union planned to invoke
the procedures of the "interest arbitration" clause. Fail-
ure to find a violation would deprive the Employers
from being the exclusive representatives of their respec-
tive interests in an individual bargaining unit and man-
dating that they surrender that right to the Union and
their competitors who are members of SMACNA. Borg-
Warner, supra. In the case of West Coast, that mandate
could be in perpetuity for they were required by the
NJAB to include an "interest arbitration" clause in their
was to prevent unions' "attempt to dictate to emplo' 'rs who would rep-
resent them in collective bargaining and grievance adjustment" Florida
Power & Light v Electric Workers, supra, 417 U S 790, 803
next contract. Even if the "interest arbitration" clause is
found to be a nonmandatory subject of bargaining, the
NJAB reserved the right to settle future disputes be-
tween West Coast and the Union. This provision is found
to be another "interest arbitration" clause; the imposition
of which is also violative of Section 8(b)(1)(B) and (3) of
the Act.
West Coast and Warrens did not clearly waive their
rights to select their own representatives for collective
bargaining for they objected to NJAB resolving any dis-
putes arising from such negotiations. That West Coast
submitted a grievance under another provision of article
X concerning the Union's invocation of the "interest ar-
bitration" clause cannot be construed as a waiver, since
the grievance was another of West Coast's objections to
the Union's resort to interest arbitration after the Em-
ployer resigned from SMACNA.5 Any other holding
would abrogate an employer's right to withdraw from
SMACNA and negotiate a contract with arbitration and
other provisions pertinent to its own interests.
Assuming, arguendo, the Union bargained in good
faith when it referred mandatory subjects of bargaining
to NJAB, by seeking enforcement and/or enforcing the
NJAB decisions insofar as they dictate nonmandatory
subjects of bargaining, Respondent violated Section
8(b)(1)(B) and (3) of the Act. Sheet Metal Workers Local
263, supra. Respondent failed to prove its bare claim that
interest arbitration and contributions to industry funds
were closely intertwined with mandatory subjects of bar-
gaining, such as wages and functions of the unit. ,
The proviso to the NJAB decision declaring that all
subjects found nonmandatory by the Board or other
named instrumentality will be deleted and referred to
NJAB for a resolution in the event the parties cannot
5 Based on this finding, I conclude that it is unnecessary to address Re-
spondent's argument that the issue of whether SMACNA's attempt to
delete art X, sec 8, of the SMACNA contract under the "most favored
nation" clause of the agreement is a question of contract interpretation
which should be deferred to the NJAB As found in Sheet Metal Workers
Local 14 v. Aldrich Air Conditioning, 717 F 2d 456, 459 (8th Cir 1983),
interest arbitration may not itself be the subject of arbitration lest the bar-
gaming system becomes self-perpetuating , ". . an interest arbitration
clause is unenforceable insofar as it applies to the inclusion of a similar
clause in the new collective-bargaining agreement " Cf Sheet Metal
Workers Local 263, supra, 272 NLRB 43 (1984) Further, I find that sub-
jecting a party to dispute resolution procedures by the NJAB, a body
which is not a neutral or impartial arbiter, is antithetical to the purposes
of the Act In this case, deferral would not result in encouraging the par-
ties to negotiate, on the contrary, it would encourage the Union to de-
clare a deadlock or impasse and force upon West Coast and Warrens
nonmandatory subjects of bargaining by interested, and partial decision
makers. Here, the deferral would not result in evenhanded arbitration
where appropriate safeguards for statutory rights are satisfied for all par-
ties did not agree to be bound by NJAB for the resolution of collective-
bargaining disputes beyond the term of the contract Also, deferral would
require West Coast and Warrens to relinquish their right to choose their
own collective-bargaining representatives, which I find to be in these cir-
cumstances repugnant to the policies and purposes of the Act, Spielberg
Mfg Co., 112 NLRB 1080 (1955)
The Board's policy favonng arbitration is in a milieu where both par-
ties are equally represented The "interest arbitration" clause in this case
contained no provision for resolution of collective-bargaining disputes by
neutral arbitrators Thus, the procedure prescribed by art. X, sec 8,
cannot be considered a continuation of collective bargaining or arbitra-
tion under Mechanical Contractors Assn of Newburgh, 202 NLRB 1
(1973)
SHEET METAL WORKERS LOCAL 206 (WARRENS INDUSTRIAL)
reach agreement does not cure the, violation. The proviso
still subjects the employees to NJAB jurisdiction for the
resolution of any disputes involving matters deemed to
be nonmandatory subjects of bargaining, which in this
case are the "interest arbitration" clause for West Coast
and the requirements that both West Coast and Warrens
contribute to industry funds. Thus, as counsel for Gener-
al Counsel notes, the proviso to the NJAB decisions
function like another "interest arbitration" clause in the
event article X, section 8, is deemed to be a nonmanda-
tory subject of bargaining. To hold the proviso exculpa-
tory would give the imprimatur to resort to "interest ar-
bitration" clauses where dispute resolution would be per-
formed by an entity comprised of competitors of the Em-
ployer and the Union. Such a requirement could result in
resolutions competitively disadvantageous to West Coast
and Warrens. Mine Workers v. Pennington, 381 U.S. 657
(1965). As found above, such a result cannot be deemed
arbitration encompassing the requisite fairness to find it
lawful under the Act. As counsel for General Counsel
persuasively argues, the device of using unchosen com-
petitors for resolution of disputes arising in collective
bargaining would subject West Coast and Warrens to
resolutions which are potentially competitively disadvan-
tageous.
I further find that by filing a petition in District Court
to compel West Coast's adherence to the NJAB award
under the described circumstances of this case; including
lack of representation on NJAB and inclusion of contrac-
tual restrictions on West Coast's selection of its repre-
sentatives for collective bargaining and dispute resolution
by requiring resort to the NJAB in the future, Respond-
ent had the impermissible object in filing the suit of de-
priving West Coast of the right to choose its representa-
tive; in violation of Section 8(b)(1)(B) and (3) of the Act.
767
Compare Iron Workers Local 75 (Defco Construction), 268
NLRB 1453 (1984)`
In sum, I find that General Counsel has proven by a
preponderance of the credible evidence that Respondent
has violated Section 8(b)(1)(B) and (3) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The unfair labor practices found above, occurring in
connection with the business of West Coast and Warrens
and the Respondent's representation of these Companies'
employees where the Companies are in an industry af-
fecting interstate commerce, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow thereof within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that Respondent has engaged in viola-
tions of Section 8(b)(1)(B) and (3) of the Act, I recom-
mend that it cease and desist therefrom, and take certain
affirmative action to remedy the unfair labor practices
and effectuate the purposes of the Act. As the court
noted in Bill Johnson's Restaurants v. NLRB, 461 U.S.
731, 737 fn. 5 (1983), the Board may enjoin "a suit that is
illegal under federal law." Accordingly, Respondent will
be ordered to seek dismissal of its action entitled "Veri-
fied Petition for Order Confirming Labor Arbitration
Award," Case CV 86-1723 (I.E.G.).
The General Counsel has requested that the Remedy
include a visitatorial clause. I find that the circumstances
of this case have not been shown to warrant the iinposi-
tion of a visitatorial clause, and his request is denied.
[Recommended Order omitted from publication.]