Sheet Metal Workers Local 102 (R & J Sheet Metal)

National Labor Relations Board - Board Decisions

Feb 21, 1995

316 N.L.R.B. 382 (N.L.R.B. 1995)

382
316 NLRB No. 78
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The judge recommended that jurisdiction be retained for the lim-
ited purpose of entertaining a motion for further consideration, if
necessary, on the conclusion of the Federal court litigation with re-
spect to the portion of the National Joint Adjustment Board (NJAB)
award imposing a new interest arbitration provision. We do not find
it necessary to retain jurisdiction under the circumstances of this
case. There is no evidence that the Respondent made a distinct, spe-
cific request of the National Joint Adjustment Board to include inter-
est arbitration provisions in a new agreement, or otherwise coer-
cively insisted on the inclusion of an interest arbitration clause. See
Sheet Metal Workers Local 20 (Baylor Heating), 301 NLRB 258,
261 (1991). In addition, as the judge noted, the Ninth Circuit Court
of Appeals, where the district court action regarding the NJAB
award in this case is pending, clearly finds interest arbitration lan-
guage unenforceable in an interest arbitration award. American Metal
Products v. Sheet Metal Workers Local 104, 794 F.2d 1452, 1457
(9th Cir. 1986). In these circumstances, we find it unnecessary to re-
tain jurisdiction, and we shall dismiss the complaint in its entirety.
Contrary to our dissenting colleagues’ view, we are not coun-
tenancing ‘‘indefensible litigation’’ by refusing to retain jurisdiction
in this case. In disagreement with Members Stephens and Cohen, we
have held that the Respondent’s court action to enforce the NJAB
award is itself not unlawful. The mere fact that this court action con-
cerns an NJAB award which contains one provision which probably
will not pass judicial muster does not, in and of itself, render the
litigation ‘‘indefensible.’’
For the reasons Chairman Gould expressed in Sheet Metal Workers
Local 162 (Dwight Lang’s Enterprises), 314 NLRB 923 (1944), he
would find interest arbitration clauses to be mandatory subjects of
bargaining. He nevertheless presumes that when the parties entered
into the agreement containing the interest arbitration clause, they
were aware that Board precedent held such clauses to be nonmanda-
tory subjects of bargaining and that any subsequent award providing
for interest arbitration could not be imposed on the parties without
their mutual consent. Chairman Gould, therefore, agrees with the dis-
missal of the allegation that the inclusion of an interest arbitration
clause in the NJAB award constitutes a violation of Sec. 8(b)(1)(B)
and with the finding that it is unnecessary to retain jurisdiction under
the circumstances of this case.
1 Whether or not the Respondent included an interest arbitration
provision in its submission to NJAB, it is clear that the NJAB award
included an interest arbitration provision, and that, by means of its
court action to compel enforcement of the award, the Respondent at-
tempted to impose interest arbitration on the Employer without the
latter’s consent. Our colleagues’ decision not to retain jurisdiction in
these circumstances allows the Respondent to engage in indefensible
litigation in an effort to seek enforcement of the interest arbitration
provision. The apparent futility of this act should not serve as a de-
fense to such patent misconduct.
Sheet Metal Workers’ International Association,
Local Union 102, AFL–CIO and R & J Sheet
Metal. Case 21–CB–11412
February 21, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS,
BROWNING, COHEN, AND TRUESDALE
On August 4, 1993, Administrative Law Judge
Clifford H. Anderson issued the attached decision. The
General Counsel filed exceptions and a supporting
brief; the Charging Party filed exceptions, a supporting
brief, and a reply brief; and the Respondent filed an
answering brief.
The National Labor Relations Board has considered
the decision and record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings,
findings, and conclusions and to adopt the rec-
ommended Order as modified.1
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
MEMBERS STEPHENS and COHEN, dissenting.
For the reasons set forth in Member Stephens’ dis-
senting opinion in Sheet Metal Workers Local 20
(Baylor Heating), 301 NLRB 258 (1991), and our dis-
senting opinion in Sheet Metal Workers Local 162
(Dwight Lang’s Enterprises), 314 NLRB 923 (1994),
we would find that the Respondent violated Section
8(b)(1)(B) of the Act by submitting its unresolved dis-
pute with the Employer to interest arbitration and by
filing a counterclaim in the U.S. district court to en-
force the National Joint Adjustment Board’s award
(NJAB), which included an interest arbitration provi-
sion.1
Jean C. Libby, Esq., for the General Counsel.
Ray Van der Nat, Esq., of Los Angeles, California, for the
Respondent.
James A. Bowles, Esq. (Hill, Farrer & Burrill), of Los Ange-
les, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I
heard this case in trial on March 30 and 31, 1993, in Los
Angeles, California, pursuant to a complaint and notice of
hearing issued by the Regional Director for Region 21 of the
National Labor Relations Board (the Board) on November
19, 1992, based on a charge filed on August 26, 1992, and
docketed as Case 21–CB–11412 by R & J Sheet Metal (the
Charging Party or the Employer) against Sheet Metal Work-
ers’ International Association, Local Union 102, AFL–CIO
(Respondent or the Union). Posthearing briefs were submit-
ted on May 19, 1993.
The complaint alleges and the answer denies that Re-
spondent has restrained and coerced the Employer in the se-
lection of its representative for the purpose of collective bar-
gaining in violation of Section 8(b)(1)(B) of the National
Labor Relations Act (the Act).
All parties were given full opportunity to participate at the
hearing, to introduce relevant evidence, to call, examine, and
cross-examine witnesses, to argue orally, and to file
posthearing briefs.
On the entire record, including helpful briefs from the
General Counsel, the Charging Party, and Respondent, and
383SHEET METAL WORKERS LOCAL 102 (R & J SHEET METAL)
1 As a result of the pleadings and the stipulations of counsel at the
trial, there were few disputes of fact regarding collateral matters.
Where not otherwise noted, the findings here are based on the plead-
ings, the stipulations of counsel, or unchallenged credible evidence.
from my observation of the witnesses and their demeanor, I
make the following1
FINDINGS OF FACT
I. JURISDICTION
At all material times the Charging Party has been a Cali-
fornia state corporation with an office and place of business
in Huntington Beach, California, where it has been engaged
in business as a sheet metal contractor in the building and
construction industry. In the course of its business operations
at relevant times, the Charging Party annually purchased and
received goods, materials, and services valued in excess of
$50,000 directly from points and places outside the State of
California.
Accordingly, it is undisputed, and I find, that the Charging
Party has at all times material been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Charging Party was founded in January 1985 by part-
ners Rocky and Julie Fleeman, husband and wife. Since that
time it has operated as a sheet metal contractor in the south-
ern California construction industry.
Respondent is a constituent local of the Sheet Metal Work-
ers’ International Association, AFL–CIO (the International)
which resulted from the July 1, 1988 amalgamation of Local
509—with jurisdiction over Riverside, San Bernardino,
Mono, Inyo, and a portion of Kern Counties—and Local
420—with jurisdiction over Orange and Long Beach Coun-
ties. The premerger locals did not continue as separate enti-
ties after the merger.
The Sheet Metal and Air Conditioning Contractors Na-
tional Association, Inc. of Orange County-Long Beach
(SMACCNA), a California corporation, has at all times ma-
terial acted as a multiemployer association representing em-
ployers in the sheet metal and air-conditioning construction
contracting industry in collective bargaining with locals of
the International.
United Sheet Metal and Air Conditioning Contractors As-
sociation (United) was a corporation acting as a multiem-
ployer association representing employers in the sheet metal
and air-conditioning construction contracting industry in col-
lective bargaining with locals of the International until its
merger with SMACCNA on April 1, 1991, and formal cor-
porate dissolution on September 10, 1991.
The parties stipulated that the relationships in dispute be-
tween the various locals of the International, including Re-
spondent, and the Charging Party were not relationships fall-
ing under Section 9 of the Act but rather were cognizable
only under Section 8(f) of the Act.
B. Events
1. Events relevant to the 1982–1985 contract
The Charging Party commenced operations in January
1985 with two employees each of whom was a member of
Local 108 of the International—a local with jurisdiction over
a portion of the Los Angeles area. In or about April 1985
Local 420’s president, John Watson, telephoned the Charging
Party and indicated he would be sending out an agent of
Local 420 to discuss a collective-bargaining agreement.
Local 420 Business Manager Carl Moore thereafter visited
the Charging Party’s offices on several occasions in the pe-
riod of April to June 1985.
Rocky Fleeman testified that Moore initially met with him
and his wife and showed them two copies each of a ‘‘Stand-
ard Form of Union Agreement’’ and ‘‘Addenda to Standard
Form of Union Agreement’’ which is a printed compilation
of various separately numbered addenda to the standard form
agreement. The bulk of the first meeting was dedicated to a
discussion of the possibility of transferring the two employ-
ees’ local union memberships to Local 420. Moore returned
a few weeks later and again sought the Charging Party’s sig-
nature on the contracts. In this conversation or another
Rocky Fleeman made it clear to Moore that he did not wish
to join either multiemployer association, SMACCNA or
United, but rather desired to be an ‘‘Independent.’’ At a third
meeting in or around June 1985, Fleeman signed two copies
of both the standard form contract and addenda with the
blank spaces on the forms providing for specific entries gen-
erally left blank.
Julie Fleeman testified that as part of the contract signing
process she filled in some blank spaces on the contract and
addenda but not all. Rocky Fleeman signed two copies each
of the contract and addenda and all copies were taken by
Moore. In a few weeks the Charging Party received a copy
of each document in the mail with various additional blanks
filled in, such as the notation ‘‘Independent’’ in the space
marked ‘‘Specify Name of Association’’ on the signature
page. The returned contract and addenda also bore the signa-
ture of John Watson and Local 420’s embossed seal. The
filled-in contract was effective by its terms from June 12 to
30, 1985—a period of approximately 2 weeks.
Moore’s recollection of these events was poor. He did not
challenge the testimony of the Fleemans respecting the spe-
cifics of the events. He testified that his general practice was
to describe the three choices available to signatory employers
concerning the multiemployer bargaining representative asso-
ciations: join SMACCNA, join United, or be an independent
contractor. He testified:
If they wanted to be SMACCNA or United, there was
an industry fund fee that went into the industry fund.
If they did not wish to belong to either association, they
paid the same amount of money on the bottom line, but
the money would go, instead of going to the associa-
tions, we would use it for the apprentice training.
384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The payments involved were generated by deducting 30
cents per employee working hour from unit employees’ gross
wages.
2. Events relevant to the 1985–1988 contract
Local 420 negotiated identical July 1, 1985—June 30,
1988 contracts with SMACCNA and United. Thereafter
Local 420 had the agreement printed into standard forms.
Moore and the Fleemans testified that later in the summer of
1985 or thereafter Moore had several meetings with the
Fleemans and ultimately obtained Rocky Fleeman’s signature
on the new agreement. A contractor’s information sheet was
also supplied by Moore, signed and returned by the
Fleemans. The state of the form contract and addenda at the
time of their signature by the Charging Party as well as the
extent to which the contract information sheet had been filled
out by the Charging Party was in dispute.
The 1985–1988 agreement, like the earlier agreement, con-
sisted of two forms—a ‘‘Standard Form of Union Agree-
ment’’ and ‘‘Addenda to Standard Form of Union Agree-
ment.’’ Throughout the forms, blank spaces were provided
for the entry of specific details such as dates, employer
names, and titles. The 1985–1988 standard form provided,
inter alia:
ARTICLE X
SECTION 1. Grievances of the Employer or the
Union, arising out of interpretation or enforcement of
this Agreement, shall be settled between the Employer
directly involved and the duly authorized representative
of the Union, if possible. . . .
SECTION 2. Grievances not settled as provided in
Section 1 of this Article may be appealed by either
party to the Local Joint Adjustment Board . . . . Ex-
cept in the case of a deadlock, a decision of a Local
Joint Adjustment Board shall be final and binding.
. . . .
SECTION 5. A Local Joint Adjustment Board, Panel
and National Joint Adjustment Board are empowered to
render such decisions and grant such relief to either
party as they deem necessary and proper, including
awards of damages and other compensation.
. . . .
SECTION 8. In addition to the settlement of griev-
ances arising out of interpretation or enforcement 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 hereinafter provided:
(a) Should the negotiations for a renewal of this
Agreement become deadlocked in the opinion of the
Union representative(s) or of the employer(s) represent-
atives, or both, notice to that effect shall be given to
the National Joint Adjustment Board.
. . . .
ARTICLE XII
SECTION 4. By execution of the Agreement the
Employer authorizes (Name of Local Contractor Asso-
ciation) to act as its collective bargaining representative
for all matters relating to this agreement. The parties
agree that the Employer will hereafter be a member of
the multi-employer bargaining unit represented by said
Association unless this authorization is withdrawn by
written notice to the Association and the Union at least
150 days prior to the then current expiration date of the
Agreement.
The 1985–1988 addenda supplemental form contains blank
spaces only on its final page for signatures, names, address-
es, dates, the name of the association involved, and certain
other matters. The addenda supplemental form also contained
the following language:
Addendum No. 59
SECTION 1. A ‘‘bad faith employer’’ for purposes
of this Agreement is an Employer that itself . . . en-
gages in work within the scope of [the contract] using
employees whose wage package, hours and working
conditions are inferior to those prescribed in this agree-
ment . . . .
SECTION 2. Any employer that signs this Agree-
ment . . . expressly warrants that it is not a ‘‘bad-faith
employer’’ as such term is defined in Section 1 herein-
above and, further, agrees to advise the union promptly
if at any time during the life of this Agreement said
employer changes its mode of operations and becomes
a ‘‘bad-faith employer.’’ Failure to give timely notice
of being or becoming a ‘‘bad-faith employer’’ shall be
viewed as fraudulent conduct on the part of such Em-
ployer.
. . . .
Addendum No. 62—Contract Reopener Clause
This Agreement and Addenda . . . shall continue in
force from year to year unless written notice of reopen-
ing is given not less than One Hundred Fifty (150) days
nor more than One Hundred Eighty (180) days prior to
the expiration date.
. . . .
Addendum No. 64—Term of Contract
This addendum shall . . . remain in effect up to and
including June 30, 1988, under the terms set forth in
Article 13 of the Standard Form of Union Agreement,
Form A-3-85.
The contractor’s information sheet provides blank spaces
for the entry of the contractor’s name, the Association or
Independent status of the contractor, the association des-
ignated to receive ‘‘Industry Fund’’ payments, the contrac-
tor’s payday, and the day of the week the signatory employ-
er’s payroll period ends.
Moore testified that the circumstances of the contract’s
signing, submission to the Union, and return to the Fleemans
were not clear in his mind. He testified that it was quite like-
ly that the only blanks that would have been filled in at the
time the preprinted forms were delivered to the Charging
Party for completion and signature would have been the date
of the contract and the employer’s name and address with the
remainder of the information being subsequently provided by
385SHEET METAL WORKERS LOCAL 102 (R & J SHEET METAL)
2 Rocky Fleeman also testified that during these negotiations, he
told Moore repeatedly he was indifferent to where the mandatory de-
duction from his employees’ wages should be sent, since he had to
deduct it in all events. He reiterated to Moore his status as an inde-
pendent, not a member of SMACCNA nor United. Fleeman testified
Moore told him that, if he did not choose where the funds were to
go, the Union would. He further testified that he never learned to
what entity the moneys had been distributed.
3 Julie Fleeman further testified that the contested entries appearing
in the documents in evidence were not made by the Employer’s
typewriter—the only typewriter in the Charging Party’s possession
at relevant times. Exemplars placed into evidence which were identi-
fied by Julie Fleeman as coming from this typewriter are consistent
with her testimony.
4 While the record is not crystal clear, the Charging Party utilized
an accounting service for payroll matters which service was appar-
ently familiar with the industry contract rates and automatically put
contract changes in wages and fringes into effect for the Charging
Party’s covered employees.
the employer either through filling in the blank spaces on the
contract forms or on the information sheet.
Rocky Fleeman testified that he finally accepted the
Union’s demand that he sign the contract without modifica-
tion and signed the 1985–1988 standard contract form,2 the
preprinted addenda, and a separate contractor information
sheet. Respecting the entries in the various blank spaces the
documents contained, he testified that at the time he signed
them his wife had added their contractor’s license number
and their insurance carrier’s name, but that the other filled-
in entries which now appear on the document copies in evi-
dence and which were on the contract forms when the
Charging Party later received its copies from the Union had
not been entered by the Charging Party or with its authoriza-
tion or knowledge and were blank when the documents were
returned to the Union. Rocky Fleeman noted particularly the
word ‘‘United’’ had not been entered on the addenda supple-
mental form or the standard contract. Similarly the contrac-
tor’s information sheet did not have any ‘‘Xs’’ entered des-
ignating United as either the Charging Party’s selected col-
lective-bargaining association or the entity to receive the in-
dustry fund payments discussed supra.
Julie Fleeman testified that after Moore and her husband
came to ‘‘some sort of’’ an agreement, she was asked to type
in certain information on the three documents and did so en-
tering the Charging Party’s contractor’s license number, the
relevant geographical zone number, classification, and the
names of the Charging Party’s compensation and disability
carriers. Julie Fleeman was sure the Employer’s name and
address were entered in appropriate blanks by this time, but
was equally sure the word ‘‘United’’ or its designation in
any way had not been entered on the contract, the addenda,
or the contractor’s information sheet.3 Further, Julie Fleeman
denied that the Employer’s payroll period and payday infor-
mation entered on the contract information sheet were either
entered by her or were factually correct entries for the
Charging Party at the time.
While there was conflicting evidence whether Moore phys-
ically took the signed copies with him or whether they were
mailed to Local 420, there is no dispute that both sets of
signed documents were given by the Charging Party to Local
420. Further there is no dispute that, in time, the Charging
Party received one copy each of the contract and the addenda
from Local 420. On the copy of the 1985–1988 contract re-
ceived by the Charging Party from Local 420 the blank space
for the ‘‘Name of Local Contractor Association’’ contained
the typewritten entry ‘‘United,’’ thus by its terms assigning
bargaining rights to that entity. The addenda supplemental
form also bore the typewritten entry ‘‘United’’ in the space
for ‘‘Specify Name of Association.’’
The Fleemans testified that on receiving the documents
back from Local 420 they simply noted that the Union’s
agent, John Watson, had signed the documents and had
thereafter simply filed the documents away without further
study and, more particularly, without noticing the ‘‘United’’
entries in the spaces noted supra.
The Charging Party had begun to apply the terms of the
new contract to its employees at the time it came into effect
for the association units.4 After Rocky Fleeman signed the
1985–1988 contract, the Charging Party continued to apply
its terms. It remitted its industry fund payments to the union
trust without identifying what was to be done with the funds.
It was uncontested that the Charging Party has never been
a member of United or SMACCNA. Nor was there evidence
or suggestion that United or SMACCNA believed or rep-
resented to the Union that the Charging Party was in fact an
association member, had assigned bargaining rights to an as-
sociation, or had informed the union that either association
was bargaining on the Charging Party’s behalf. The industry
fund deductions remitted by the Charging Party were paid to
SMACCNA at all material times although there is no record
evidence that either the Charging Party or the Union’s agents
involved here knew of this fact at relevant times.
3. Events relevant to the disputed 1988–1991 contract
Sometime in 1987 the Fleemans retained counsel concern-
ing labor issues and brought copies of the 1985–1988 con-
tract and addenda to counsel for his review. Although Julie
Fleeman testified that counsel was told that the Charging
Party was not and had never been a member of United, but
was rather an ‘‘independent,’’ counsel advised that three pro-
visions of the contract and addenda had to be met to avoid
automatic renewal of the agreement. With this discussion in
mind, Julie Fleeman prepared and Rocky Fleeman signed and
sent identical letters dated January 15, 1988, to the Inter-
national, Local 420, and United with the following text:
Please be advised that R & J’s Sheet Metal wishes
to exercise their right under the Contract Reopener
Claus[e]—Addendum No. 62 in our Union Agreement.
We are at this time advising you that we are reopen-
ing negotiations and do not wish to automatically con-
tinue with our original agreement.
On January 30, 1988, Local 420 sent ‘‘Article XIII’’ re-
opener letters to ‘‘all employers and associations signatory to
the existing standard form of Union Agreement and Ad-
denda’’ giving ‘‘the required notice of re-opening’’ and mak-
ing an offer to meet and confer to negotiate a new agree-
ment. A copy of the letter was sent to the Charging Party.
In early 1988, Local 420 began negotiations with United and
SMACCNA for successor agreements. The associations pro-
vided lists of the employers for whom they were negotiating.
The Charging Party was not named on either list. On or
about July 1, 1988, Local 420 merged with Local 509 to
386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
form Respondent. Negotiations continued between the asso-
ciations and Respondent until late 1988 or early 1989 when
identical agreements were reached between Respondent and
each association for its respective multiemployer unit.
The contracts were effective on their face from July 1,
1988, to June 30, 1991. Each contained the following provi-
sions:
ARTICLE X
The Union and the Employer, whether party to this
Agreement independently or as a member of a multi-
employer bargaining unit, agree to utilize and be bound
by this Article.
. . . .
SECTION 2. Grievances . . . may be appealed by
either party to the Local Joint Adjustment Board. The
Board shall consist of representatives of the Union and
of the local Employer’s Association and both sides
shall cast an equal number of votes at each meet-
ing. . . . Except in the case of a deadlock, a decision
of a Local Joint Adjustment Board shall be final and
binding.
. . . .
SECTION 8. In addition to the settlement of griev-
ances arising out of interpretations or enforcement of
this agreement . . . any controversy or dispute arising
out of the failure of the parties to negotiate a renewal
of this Agreement shall be settled as hereinafter pro-
vided:
. . . .
The dispute shall be submitted to the National Joint
Adjustment Board . . . .
. . . .
(d) . . . all effective dates in the new agreement
shall be retroactive to the date immediately following
the expiration date of the expiring agreement.
. . . .
Addendum No. 67
This Agreement is signed by the respective Contractors
Associations on behalf of their members per list sub-
mitted by the Contractors Associations to the Union.
Rocky Fleeman testified that he had contacted Respond-
ent’s business agent, James Weaver, after July 1, 1988, seek-
ing to negotiate a new agreement, but that Weaver obtained
delays first until the association agreements could be nego-
tiated and then until they could be printed as standard con-
tracts and addenda. In July 1990 Weaver visited the Charg-
ing Party’s office bringing with him Respondent’s 1988–
1991 standard form of union agreement, addenda supple-
mental form, and contractor’s information sheet with the
Charging Party’s name entered in appropriate blank spaces,
but no entries in the blank spaces provided for the name of
the appropriate representing association.
Rocky Fleeman testified that when Weaver initially met
with him, Weaver explained the changes in the agreement
and Fleeman responded that he needed concessions. Weaver,
in Fleeman’s recollection, alluded to a ‘‘union resolution’’
which would be of assistance to the Charging Party and said
he would supply more information. Information respecting
the matter was sent to the Charging Party by the Union some
time later.
Rocky Fleeman testified that Weaver revisited the Charg-
ing Party about 1 month after his initial visit. Fleeman again
pressed for concessions, but Weaver was unavailing insisting
the contract be signed as written. Fleeman refused. A third
visit occurred which was essentially a reprise of the second.
In these latter meetings Fleeman testified that Weaver told
him the Charging Party was bound to the 1988–1991 United
contract.
James Weaver testified that he initially met with the
Fleemans in late July or early August 1988 with two or three
subsequent meetings occurring into 1989 and 1990. Weaver
recalled that he sought Rocky Fleeman’s signature on the
contract and that Fleeman refused. Special programs the
Union maintained providing relief to signatory contractors
were discussed, but Fleeman would not accept the contract
as written and Weaver would not accept any changes. Wea-
ver testified:
During the discussion I told him, as far as I was con-
sidered, he was bound to the agreement due to the fact
that United had negotiated the agreement on his behalf.
. . . .
Mr. Fleeman said that he was not a member of
United. . . . I had told him according to the contract
he had to sign the contract giving United his bargaining
rights. Whether he was a member of United or not, they
still had his bargaining rights.
There is no contention that Rocky Fleeman ever agreed to
sign the 1988–1991 agreement or actually did so.
By letter dated February 27, 1991, to Respondent, Julie
Fleeman stated in part:
Please be advised that R & J Sheet Metal is unable to
sign the Union Agreement under its present terms and
conditions. We will require concessions in order to
come to an equitable solution[ ].
Receiving no response, Julie Fleeman on April 30, 1991,
again wrote the Union a letter containing the following:
Pursuant to our letter of February 27, 1991 we are
once again informing you that we are unable to sign the
Union Agreement as it stands under it[ ]s present terms.
We must have concessions to this agreement.
We are willing to discuss alternatives, however, this
must be done within a time frame. Or, are we to as-
sume that you have no interest in negotiating this mat-
ter.
Counsel for Respondent Van der Nat responded to Julie
Fleeman by letter dated May 16, 1991, stating in part:
Your notice of April 30, 1991 and its reference to
your correspondence of February 27, 1991 is untimely
pursuant to article XIII section 5 of your current agree-
ment with Local 102.
Accordingly, we do not believe that we have an obli-
gation to bargain with you separately and will expect
that you abide by the successor agreement negotiated
between Local 102 and the Association.
387SHEET METAL WORKERS LOCAL 102 (R & J SHEET METAL)
5 As a result of various Federal, state, and local laws and regula-
tions, the certifications were necessary, if the Charging Party was to
be eligible for work on certain commercial jobs.
Julie Fleeman answered by letter dated May 22, 1991, stating
in part:
Upon reviewing your letter [of May 16, 1991], it is
evident that your are not in possession of all the facts.
Enclosed please find a copy of letter dated January 15,
1988 in which we reserve the right to reopen negotia-
tions.
Please be advised that negotiations must be com-
pleted prior to July 1, 1991.
Counsel for the Union responded by letter dated May 28,
1991. In that letter counsel argued that the Charging Party
was bound to the 1985–1988 contract and that the Charging
Party’s letter of January 15, 1988, simply served to prevent
that contract from automatically renewing. Counsel asserted
the letter had no effect on the proposition that the Charging
Party was bound to the 1988–1991 agreement. Counsel fur-
ther contended the Charging Party’s letter of April 30, 1991,
was untimely respecting any new agreement because, under
article XIII, section 5, 150 days’ notice of an intention not
to be ‘‘bound by the next agreement as part of the multi-em-
ployer bargaining unit’’ must be given both to the employer
association and the Union. The letter concluded: ‘‘Accord-
ingly, no separate negotiations are necessary and we will
consider you automatically bound to the new Local 102
agreement.’’
Julie Fleeman responded by letter dated May 30, 1991,
which contained the following text:
It appears that you are regarding our letter of February
27, 1991 as the one hundred and fifty (150) day notice.
This is not [emphasis in original] the case. Our notice
was formally given to the Union per our letter of Janu-
ary 15, 1988. We should have no cause to send it again
as we have not been signatory since the July 1, 1985
to June 30, 1988 agreement with Local #420. Our letter
of February 27, 1991 was stating we were still unable
to sign the agreement of July 1, 1988 to June 30, 1991
with Local #102. We have never been signatory with
Local 102.
During the period July 1, 1988, to June 30, 1991, the
Charging Party honored Respondent’s 1988–1991 contract’s
terms and made appropriate trust payments to the contrac-
tually designated trusts only on behalf of employees hired
before July 1988. It did not use the Union’s hiring hall dur-
ing this period and did not pay new hires contract rates or
benefits.
The Charging Party did not inform the Union of its appli-
cation of the contract only to employees hired before July 1,
1988, of its discontinuance of use of the Union’s hiring hall
or of the fact and the identities of new unit employee hires.
The Charging Party generated payment reports received by
the Union named only covered employees so it was not obvi-
ous from those reports that new, uncovered employees were
also doing unit work without appropriate fringe contributions
being made on their behalf.
Periodically during the period, the Charging Party solicited
from the Union ‘‘current status of union benefit letters’’ and
‘‘letters of concurrence’’ required of the Charging Party as
a subcontractor by contractors on certain projects.5 Letters
solicited by the Charging Party and supplied by the Union
to the Charging Party for transmission to general contractors
in this period certified that the Charging Party was ‘‘current
in all fringe reports and monies owed to the Local Union and
our Trust Funds’’ or that the Union’s hiring hall operations
under the collective-bargaining agreement did not discrimi-
nate against women and minorities. One letter in evidence
stated:
This company has been a signatory contractor, signed
to a Collective Bargaining Agreement with this Local
Union for many years. To the best of my knowledge
the company has always been current with these re-
ports.
There is no evidence the Charging Party ever corrected the
factual assertions of the solicited letters either to the general
contractors involved or to the Union.
Rocky Fleeman testified that early in 1991 he informed
those of his employees who were still working under the
terms of the 1988–1991 contract that in July 1991, i.e., after
the 1988–1991 contract’s June 30, 1991 expiration date, he
was going to stop sending in fringe contributions on their be-
half to the Union, but would rather pay the employees the
cash equivalent directly. Rocky Fleeman testified the date
chosen to discontinue fringe payments was taken from the
expiration date of the contract, not because the Charging
Party was bound to the 1988–1991 contract, but rather be-
cause waiting until July 1, 1991, to stop all contract coverage
represented a fair passage of time by the Charging Party dur-
ing which the Union had been provided an opportunity by
the Charging Party to enter into a contract with it.
As part of the merger of United and SMACCNA, Re-
spondent and United entered into the following agreement on
United’s letterhead signed and dated by each party on March
28, 1991:
This letter is to confirm our recent telephone con-
versations regarding this Association and Orange Coun-
ty-Long Beach SMACCNA’s merger and your agree-
ment to rescind the United Local 102 Collective-Bar-
gaining Agreement as a result of said merger.
Members of United, as a result of the merger, have
agreed to become bound to the Local 102-SMACCNA
agreement, effective April 1, 1991. Signed membership
applications with bargaining commitments are on file at
Orange County-Long Beach SMACCNA.
Therefore it is requested that you provide written
agreement cancelling the United-Local 102 Collective-
Bargaining Agreement, effective March 31, 199l.
Please execute and date of copy of this letter provid-
ing consent to rescind the United Local 102 agreement,
and return a signed copy for our files.
There was no evidence or argument that the Charging
Party, other than as a result of the disputed 1985–1988 con-
tract, ever assigned bargaining rights to either association,
ever applied for or became a member of either association,
388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 In an errata dated July 9, 1992, the National Joint Adjustment
Board changed the original award’s reference to the 1991–1994
‘‘United’’ contract to the ‘‘SMACCNA’’ contract. As noted supra
the associations had previously merged with SMACCNA, the surviv-
ing association. There was therefore but a single 1991–1994 agree-
ment.
or was regarded by United or SMACCNA at anytime as a
member. While the record suggests SMACCNA received the
Charging Party’s industry fund payments, there is no evi-
dence, other than the disputed contract entries and related
evidence including the Charging Party’s June 15, 1988 letter,
discussed supra, of a membership or principal-agent relation-
ship between either SMACCNA and/or United and the
Charging Party at any time.
4. Events after June 30, 1991
The 1988–1991 contract on its face expired on June 30,
1991. On July 2, 1991, Julie Fleeman sent a letter to the
Union with the following text:
July 2, 1991 has now arrived and no one on the be-
half of the Union has contact[ed] me since the last let-
ter that we received from your lawyer. I am perplexed
by your lack of interest to negotiate with my firm. As
you are aware we had placed a deadline to end negotia-
tions, as this matter had carried forth from three years.
The Union’s ‘‘no-care’’ attitude towards the men in our
employ as well as our firm is mystifying.
As no resolution has been reached, please remove
our firm from your roster.
The Charging Party thereafter neither recognized the Union
as a representative of its employees nor followed the terms
of any collective-bargaining agreement with respect to any of
its employees.
Soon thereafter the Union entered into a new agreement
with SMACCNA, the surviving entity of the now merged
United, and SMACCNA associations for the period July 1,
1991, through June 30, 1994. The new contract carried for-
ward the interest arbitration provisions of the previous con-
tracts.
On November 4, 1991, the Union filed a charge with Re-
gion 21 of the Board docketed as Case 21–CA–28358 against
the Charging Party alleging: ‘‘Within the past six (6) months,
the employer has refused to comply with an agreement
reached on its behalf by its own chosen representative.’’ Fol-
lowing a Regional determination that the charge lacked
merit, it was withdrawn with the Regional Director’s ap-
proval on December 18, 1991.
By letter dated March 23, 1992, Respondent informed the
Charging Party:
Local 102 has been trying to resolve the contract for
wages and conditions with you to no avail.
As per Article X, Section 8 A (Grievance Proce-
dure), negotiations have reached a deadlock position.
Notice to that effect shall be sent to the General Presi-
dent of the Sheet Metal Workers’ International Associa-
tion and the National Office of the Sheet Metal and Air
Conditioning Contractors National Association, Inc.
This letter will give notice to R & J Sheet Metal that
Sheet Metal Workers’ Local 102 considers negotiations
deadlocked and requests the assistance of the National
Joint Adjustment Board to settle this matter.
The Union thereafter initiated an interest arbitration. The Na-
tional Joint Adjustment Board on July 2, 1992, issued a deci-
sion on the matter containing the following:
The National Joint Adjustment Board met in St.
Paul, Minnesota on June 30, 1992 . . . . James Wea-
ver, Carl Moore and Ray Van Der Nat appeared on be-
half of the local union. There were no appearances on
behalf of the contractor, although it had been duly ad-
vised of the time and place of the hearing and afforded
an opportunity to appear and be heard in the mat-
ter. . . .
A review of the record demonstrated that all proce-
dural requirements had been met; and the matter, there-
fore, was properly before the NJAB for decision.
The record reflected that the parties had not resolved
any issues concerning terms for a new commercial
agreement, the NJAB reached the following unanimous
decision.
1. R & J Sheet Metal shall execute a collective
bargaining agreement with an effective date of July
1, 1991, incorporating terms and conditions identical
to the commercial agreement between SMACCNA-
Orange County-Long Beach and Sheet Metal Work-
ers Local 102.6
Your attention is directed to the following language
contained in Article X, Section 8(a) of the Standard
Form of Union Agreement:
The unanimous decision of said Board shall be final
and binding on the parties, reduced to writing, signed
and mailed to the parties as soon as possible after the
decision has been reached.
The Union also initiated a Local Joint Adjustment Board
action against the Charging Party under the 1988–1991
agreement asserting that the Charging Party was bound to the
1991 agreement and had failed to apply its terms to employ-
ees for the period July 1, 1991, to July 1, 1992. A hearing
was held on July 7, 1992, at which the Charging Party and
Respondent appeared and presented their cases.
On July 22, 1992, the Local Joint Adjustment Board
issued its decision. It found that the Union had established
that:
1. The Company was signatory to the 1985–1988
Agreement, and the Company was bound by the 1988–
1991 Agreement.
2. The Company was part of the Multi-Employer
bargaining unit and bound by the association agree-
ment, by virtue of the failure to give proper notice as
required by Article XIII section 5 of the Standard Form
of Union Agreement.
3. Local 102 had requested bargaining for a succes-
sor agreement but the Company refused to meet for ne-
gotiations.
4. Since July 1, 1991, the company has failed and
refused to pay the fringe benefit contributions and the
union dues pursuant to the 1988–1991 agreement.
389SHEET METAL WORKERS LOCAL 102 (R & J SHEET METAL)
7 A second issue, whether, even under contractually established
procedures, the Charging Party may be properly bound in an other-
wise proper interest arbitration proceeding to a new contract which
itself contains mandatory interest arbitration language, is discussed
separately, infra. See sec. III,D,3.
5. Article X section 5 and Article XIII section 1 re-
quires that the company continue in full force and ef-
fect all of the terms and conditions of the 1988–1991
agreement while they are attempting to negotiate a suc-
cessor agreement, or are going thru the procedures out-
line in Article X section 8 of the Agreement.
The decision awarded the Union $346,032 in delinquent
fringe benefit contributions and $3600 in union dues to be
paid by the Charging Party. It further required the Charging
Party to comply with the 1988–1991 agreement until negotia-
tions for a new agreement either reached impasse or were re-
solved by the National Joint Adjustment Board.
Thereafter the Charging Party initiated an action in the
United States District Court for the Central District of Cali-
fornia, R & J Sheet Metal v. Sheet Metal Workers Local 102,
Case SA CV 92–626 LHM (RWRx), seeking to vacate the
awards of the National Joint Adjustment Board and the Local
Joint Adjustment Board, described supra. In that action Re-
spondent cross-petitioned or counterclaimed for enforcement
of the two awards. The U.S. district court action is pending
before the Honorable District Court Judge McLaughlin who
has stayed the proceedings pending the outcome of the in-
stant litigation.
C. The Issues, Positions, and Arguments of the Parties
1. The allegations of the complaint
The complaint alleges that Respondent has never had a
collective-bargaining relationship with the Charging Party
concerning its employees and that the Charging Party has
never at any time been a member of or selected the Sheet
Metal and Air Conditioning Contractors National Association
as its representative for the purpose of collective bargaining
or the adjustment of grievances.
Paragraph 8 of the complaint alleges:
(a) On or about March 23, 1993, Respondent by
Moore, in a letter, in effect invoked the provisions for
interest arbitration in a labor agreement between Re-
spondent and SMACCNA and informed the Employer
that it would request the assistance of the National Joint
Adjustment Board of the Union and SMACCNA to re-
solve a contract dispute between Respondent and the
Employer.
(b) Since about March 23, 1992, Respondent has co-
erced the Employer, with the object of forcing the Em-
ployer to join and be bound to SMACCNA or select it
as the Employer’s bargaining representative.
The complaint further alleges this conduct violates Section
8(b)(1)(B) of the Act.
2. The issues narrowed: Questions of contract
and deferral
There is no dispute that the Union threatened to invoke
and then invoked contract interest arbitration provisions
against the Charging Party. The National Joint Adjustment
Board considered the Union’s claims and directed the Charg-
ing Party to execute the SMACCNA 1991–1994 agreement
which itself contains an interest arbitration provision. The
Union is asserting the validity of the National Joint Adjust-
ment Board award against the Charging Party in Federal dis-
trict court.
There is no contention that unless the Charging Party was
contractually bound to the interest arbitration process in-
voked by the Union, Section 8(b)(1)(B) of the Act, which
makes it an unfair labor practice for a labor organization to
restrain or coerce an employer in the selection of his rep-
resentatives for the purposes of collective bargaining or the
adjustment of grievances, was violated. The existence of a
contractual obligation and the standard for determining if
such an obligation existed justifying the Union’s actions was
the heart of the dispute between the parties.7
The contract issue in the instant case has two aspects. The
first aspect is the question of whether or not there is a con-
tractual obligation on the part of the Charging Party and a
concomitant right on the part of the Union to take the inter-
est arbitration matter to the National Joint Adjustment Board.
Related to that issue is the validity of the resulting interest
arbitration award. This issue is a conventionally disputed
matter in Section 8(b)(1)(B) of the Act under unfair labor
practice cases.
The second aspect of this case arises from the less com-
mon proposition that the parties are simultaneously litigating
this dispute before the U.S. district court in an action brought
by the Charging Party which seeks, inter alia, that the court
set aside the National Joint Adjustment Board award and
which action is defended by Respondent who is asserting the
validity of that award. Such a context alters the standard the
Board uses in evaluating the Union’s assertions of a contract
right to force an employer into interest arbitration. In such
a setting the Board must also consider whether it should stay
its hand in the matter deferring to the U.S. district court so
that the court may definitively resolve the contract issue as
well as the validity of the interest arbitration award.
The parties’ arguments concerning both issues are set forth
separately below.
3. The parties’ arguments respecting the Charging
Party’s contract obligation
Respondent’s contract argument may be easily stated in its
simplest form. The Charging Party signed the 1982–1985
contract and thereafter the 1985–1988 contract. By the ex-
plicit terms of the 1985–1988 contract which is in evidence,
the Charging Party authorized United to enter into the 1988–
1991 contract with the Union on the Charging Party’s behalf.
United in fact agreed to the 1988–1991 contract thereby
binding the Charging Party to its terms. The 1988–1991 con-
tract contained valid interest arbitration provisions properly
invoked by the Union which produced a valid National Joint
Adjustment Board award binding on the Charging Party.
The simplicity of the recitation belies the factual and legal
complexities raised by the parties in litigating both the events
and related contract interpretation issues. Thus the chro-
nology of events and what actions were taken by the parties
respecting the contracts, i.e., what contract entries had been
made or authorized on particular documents at particular
390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
times and who knew or should have known of the relevant
states of affairs at relevant times, was the subject of conflict-
ing testimony and able argument. The parties also closely ar-
gued the meaning of various contract provisions and their
consequences in light of the actions of the parties.
The General Counsel and the Charging Party argued that
the Charging Party signed the 1982–1985 and 1985–1988
contracts as an independent employer and that the testimony
of the Fleemans establishes that the 1985–1988 contract
signed by Rocky Fleeman was altered after the fact by add-
ing ‘‘United’’ as an authorized bargaining agent of the
Charging Party.
Respondent seeks to rely on the 1985–1988 contract as
physically received into evidence. Counsel for Respondent
vigorously contests the factual assertions of the General
Counsel that the contract was not signed in its present form
or that the Union or its predecessor, Local 420, somehow
fraudulently altered the document from the agreement of the
parties. Respondent emphasizes the veracity of its witnesses
and their lack of motive to alter the document. Further Re-
spondent challenges the credibility of the Fleemans. Thus,
Respondent emphasizes a variety of arguably impeaching
evidence: (1) the Fleemans indisputably received the 1985–
1988 contract in its current condition with the ‘‘United’’ en-
tries from the Union clearly present, but never protested the
entries at issue even after consulting with their counsel; (2)
the Charging Party solicited from Respondent certifications
that it was a signatory contractor with the Union at a time
when, if its current argument were credited, it was not; and
(3) that the Charging Party was dishonest in not covering all
employees doing unit work under the contract and fraudu-
lently maintained the subterfuge by not disclosing these facts
to Respondent as they were committed to by the terms of the
contract.
The Charging Party and the General Counsel emphasize
that neither United nor SMACCNA ever acted on the Charg-
ing Party’s behalf respecting the 1988–1991 agreement or
that the Charging Party ever adopted the actions of United
or SMACCNA respecting such an agreement. Respondent ar-
gues that by the terms of the 1985–1988 agreement signed
by the Charging Party it was bound to the United 1988–1991
agreement either under an agency or an independent adoption
theory. Respondent again notes that the Charging Party took
the benefit of the 1988–1991 contract by inducing the Union
to certify that it was signatory to a contract with Respond-
ent—not predecessor Local 420, and as to some employees
complied with the 1988–1991 contract’s terms filing reports
and submitting fringe payments in accordance with its re-
quirements.
The General Counsel and the Charging Party argue that
the Charging Party’s letter of January 15, 1988, to all parties
prevented any extension or automatic renewal of the 1985–
1988 agreement. Respondent argues that the January 15,
1988 letter of Julie Fleeman shows that it knew United was
its representative and bargaining agent for negotiating the
next agreement. Counsel for Respondent further argues the
letter may have acted to prevent renewal of the then existing
agreement, but under the provisions of the contract did not
withdraw the bargaining authority given to United with re-
spect to a new agreement.
The General Counsel argues in the alternative that, even
if the Charging Party is found to have delegated bargaining
authority to United and did not effectively terminate the
1985–1988 agreement, Respondent was not entitled to rely
on the 1988–1991 agreement to submit an interest arbitration
dispute to the National Joint Adjustment Board for two rea-
sons. First, the General Counsel argues that the Charging
Party never agreed to all the terms of the 1988–1991 agree-
ment and therefore cannot be held to have agreed to it sim-
ply through substantial compliance with its provisions. The
General Counsel notes that the Union had not been the pre-
viously recognized representative of employees and that Re-
spondent has not demonstrated the local merger preserved
continuity of representation.
Respondent reasserts its argument that United bound the
Charging Party to the agreement. Respondent argues further
however, that the Charging Party solicited, obtained, and dis-
seminated certifications from the Union that it was in fact a
signatory employer and not in arrears under the terms of the
current contract at a time when it was surreptitiously only se-
lectively applying the contract and wrongfully withholding
contract wages and fringe benefits from employees and the
appropriate union trust funds. Thus to the Union and to con-
tractors for whom it was working, Respondent held itself out
as bound to and honoring the 1988–1991 contract with the
Union and must now be held to its word on which the Union
and others have relied to their detriment. Answering the
union merger argument of the General Counsel, Respondent
notes the recognition of Respondent involved here is contrac-
tual not statutory and points out that the parties stipulated the
statutory relationships at issue herein are governed by Sec-
tion 8(f) of the Act not Section 9.
The General Counsel argues that, even if somehow bound
to the 1988–1991 contract initially, the Charging Party could
not be held to its terms, including the interest arbitration
terms after March 1991, because the 1988–1991 United con-
tract was rescinded on March 31, 1991, as part of the merger
of United and SMACCNA and the Charging Party was never
even arguably bound to any later contract. Respondent dis-
putes the General Counsel’s contention that the March 28,
1991 Union-United document quoted in full supra is a con-
tract rescission either for United Association members, for
independent employers who adopted the agreement, or for
the Charging Party in any event.
4. The parties’ arguments respecting deferral
As noted, supra, the parties agree that the heart of the dis-
pute here turns first on the issue of the existence of a binding
contract and second on the interpretation and application of
the terms of such an agreement, if found, to the Union’s con-
duct and the resulting award. These identical issues are
squarely before the U.S. district court in the parties’ current
action noted supra.
Where a court action and an unfair labor practice action
respecting the same contract issue are simultaneously main-
tained by the parties, the question of Board deferral to the
court litigation arises. The Board has considered the question
where both an 8(b)(1)(B) of the Act interest arbitration award
complaint and Federal court litigation respecting the validity
of the award are involved. The Board’s recent line of cases
starting with the fountainhead case of Electrical Workers
IBEW Local 113 (Collier Electric), 296 NLRB 1095 (1989),
was recognized as applicable to the instant case by all par-
ties.
391SHEET METAL WORKERS LOCAL 102 (R & J SHEET METAL)
The Collier Electric line of cases, as discussed in greater
detail infra, holds that where the contract claims of the union
in defending an interest arbitration award are before a court
of competent jurisdiction, the Board should limit its inquiry
in an 8(b)(1)(B) unfair labor practice case to whether or not
the union’s contract claims are arguable and, if it so finds,
the Board will stay its hand deferring to the court and dis-
miss the complaint.
In arguing the merits of the instant case under the deferral
cases, Respondent in effect reasserted its earlier contract ar-
guments, as described supra, noting that it was not necessary
for Respondent to conclusively establish its case but rather
only to show that its contract claims were arguable. The
Charging Party and the General Counsel in this portion of
their cases likewise framed their arguments in like terms ar-
guing Respondent’s contract positions were inarguable.
5. The issue of the Local Joint Adjustment Board action
A collateral argument was presented respecting the extent
of the 8(b)(1)(B) violation alleged and the scope of the Gen-
eral Counsel’s requested remedy. As noted, supra, Respond-
ent initiated separate arbitration actions based on contract
claims: one, the interest arbitration matter before the National
Board of Adjustment; and, the other, an action before the
Local Joint Adjustment Board alleging the Charging Party
had failed to abide by the terms of the contract in the period
July 1991–July 1992. Both the Local and National Joint Ad-
justment Board actions were challenged by the Charging
Party in its Federal lawsuit. Both awards were alleged as
valid in Respondent’s counterclaim.
The General Counsel’s complaint and requested remedy as
explained by counsel for the General Counsel’s remarks on
the record and on brief address only the interest arbitration
proceeding, the decision of the National Joint Adjustment
Board and Respondent’s counterclaim in Federal court con-
cerning that particular award. The Charging Party argues that
the action of Respondent in making its claim to the Local
Joint Adjustment Board, the Local Joint Adjustment Board
decision, and Respondent’s counterclaim assertions of the va-
lidity of the Local Joint Adjustment Board award should also
be held as violations of Section 8(b)(1)(B) of the Act and
dealt with equally in any directed remedy here.
Respondent emphases on brief that the complaint does not
allege as unlawful the Local Joint Adjustment Board griev-
ance, resulting award, and Federal court litigation. Counsel
for Respondent argues on brief at 27–28:
Since the decision of the LJAB [G.C. Exh. 18] was a
‘‘rights’’ arbitration award involving mandatory, rather
than permissive, subjects of bargaining, Collier, supra,
and its progeny do not apply.
Respondent further argues that the existence of an issue be-
fore the district court that the Board unfair labor practice
proceeding does not address is a further basis for deferring
the instant matter to the court proceeding.
D. Analysis and Conclusions
1. The Board’s Collier Electric doctrine
In Electrical Workers IBEW Local 113 (Collier Electric),
supra, 296 NLRB 1095, the Board established a new frame-
work for analysis in situations where a union submits bar-
gaining issues to interest arbitration concerning an employer
who had withdrawn from a multiemployer association. The
Board stated at 1098:
First, we shall consider whether there is a reasonable
basis in fact and law for the union’s submission of un-
resolved bargaining issues to interest arbitration. In de-
termining 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 arbi-
tration provision. If the collective-bargaining agreement
at least arguably binds the employer to the arbitration
provision, the union will be free to seek enforcement of
its contractual rights by submitting the unresolved bar-
gaining issues to interest arbitration, and by pursuing a
Section 301 suit in court, without violating Section
8(b)(3) or 8(b)(1)(B) of the Act. On the other hand, if
the agreement does not even arguably bind the em-
ployer to the arbitration provision, i.e., the contract con-
tains language explicitly stating that an employer who
has withdrawn from the multiemployer association is
not bound to interest arbitration, then the union’s sub-
mission of the unresolved bargaining issues to interest
arbitration would constitute bad-faith bargaining and
coercion of the employer in the selection of its rep-
resentative, in violation of Section 8(b)(3) and Section
8(b)(1)(B) [of the Act]. [Footnotes omitted.]
In Collier Electric, the Board found the application of the in-
terest arbitration provisions of the contract sufficiently argu-
able so that deferral to the Federal court action then pending
was appropriate. The Board noted at 1099:
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 cir-
cumstances where a contract arguably binds an em-
ployer to an interest arbitration provision will obviate
the problem of conflicting Board and court decisions
and will lead instead to uniformity of results.
As the Board noted at 1099 fn. 18: ‘‘In any event, we are
not reluctant to put issues of contract interpretation in the ca-
pable hands of a court.’’ It further noted at 1100:
The Supreme Court’s decision in Bill Johnson’s Res-
taurants 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 lawsuit has a reasonable
basis in fact or law, the Board may not enjoin the suit,
but must allow it to proceed. . . .
The Board has subsequently applied the Collier Electric
doctrine to several cases involving the National Joint Adjust-
ment Board and the contract language of article X, section
8, involved here, beginning with Sheet Metal Workers Local
283 (Conditioned Air), 297 NLRB 658, 659 (1990), and
Sheet Metal Workers Local 54 (Texas Sheet Metal), 297
NLRB 672 (1990). These cases determined whether the con-
392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 In making this finding, I have first made a threshold determina-
tion based on the record as a whole and the demeanor of the wit-
nesses that Respondent was not acting in bad faith or seeking to per-
petrate a fraud in taking the actions identified in the record or in
defending the instant action.
tracts at issue ‘‘could arguably be interpreted as binding the
Employer to the interest arbitration provisions,’’ Sheet Metal
Workers Local 283 (Conditioned Air), supra, 297 NLRB at
660. The Board in each case found no violation of the Act.
In Sheet Metal Workers Local 9 (Concord Metal), 301
NLRB 140 (1991), the Board found the union had no reason-
able basis for its claim that the employer was bound by an
interest arbitration provision. The Board found therefore that
the union’s submission of its claim to the National Joint Ad-
justment Board and its subsequent action in asserting the va-
lidity of the National Joint Adjustment Board award in a
counterclaim to the employer’s Federal district court suit to
set aside the National Joint Adjustment Board award was a
violation of Section 8(b)(1)(B) of the Act.
In Sheet Metal Workers Local 20 (Baylor Heating), 301
NLRB 258 (1991), the Board applied the Collier Electric
analytic framework: (1) to an independent signatory to a pre-
viously negotiated multiemployer agreement and (2) to a bar-
gaining relationship governed by Section 8(f) of the Act. The
Board found that there was an arguably binding contract pro-
viding for arbitration and that the union’s submission to the
National Joint Adjustment Board and subsequent effort to en-
force the award in Federal court was supported by a reason-
able basis in fact and law. Accordingly the Board found no
violation of Section 8(b)(1)(B) of the Act and dismissed the
complaint.
The Supreme Court’s decision in Bill Johnson’s Res-
taurants v. NLRB, 461 U.S. 731 (1983), relied on by the
Board in Collier Electric, is instructive respecting the manner
in which Respondent’s contract claims should be evaluated.
In that case the Court addressed what steps the Board may
take in evaluating the reasonable basis of a court action. The
Court held, 461 U.S. at 744–745:
Although the Board’s reasonable-basis inquiry need not
be limited to the bare pleadings, if there is a genuine
issue of material fact that turns on the credibility of
witnesses or on the proper inferences to be drawn from
undisputed facts, it cannot, in our view, be concluded
that the suit should be enjoined.
2. Application of the Collier Electric standard to
the instant case
Consistent with the Board’s rule in deferral cases gen-
erally, I find it appropriate to consider the deferral issue at
the threshold before turning to the merits of the unfair labor
practice allegations under nondeferral standards. This is so
because, if the matter is to be deferred, the case is to be dis-
missed without further inquiry.
Applying the Collier Electric standard as specified in
greater detail in the cases cited, supra, and in particular the
directions to the Board by the Court in Bill Johnson’s Res-
taurants, quoted supra, I find the contract issues litigated
here—which are also before the U.S. district court in an ac-
tion involving both the Charging Party and Respondent: (1)
present genuine issues of material fact turning on the credi-
bility of witnesses and the proper inferences to be drawn
from undisputed facts, and (2) involve legal questions of
contract interpretation and application advanced by Respond-
ent in support of its claim that the Charging Party is bound
to the interest arbitration provisions of the contract which are
arguable.8
More particularly, I find that the disputes respecting what
wording was present on the critical 1985–1988 contract doc-
uments at the time they were signed by Rocky Fleeman as
litigated by the parties’ present classic questions of fact re-
quiring the evaluation of credibility including consideration
of the witnesses’ demeanor and the weighing of the prob-
ability of events. The contract questions presented involve in-
teresting and difficult legal issues of contract interpretation
and consideration of such equitable doctrines as detrimental
reliance and estoppel. Respondent’s case, it seems to me,
while not clear, overwhelming, or necessarily even ultimately
persuasive, is also simply not properly characterized as inar-
guable.
My findings in this regard under the cases, cited supra, are
legally equivalent in this context to an additional finding,
which I also make, that Respondent had a reasonable basis
for bringing the interest arbitration action against the Charg-
ing Party and for asserting the validity of the National Joint
Adjustment Board award in Federal court.
In making these findings, I have considered the multiple
theories of the General Counsel which attack the contract
theory of Respondent at various stages in its logical se-
quence. At least some of the General Counsel’s arguments,
if sustained, obviate resolution of some of the factual issues
which involve judicial evaluation of the credibility of wit-
nesses and the drawing of inferences. I find, however, that,
like Respondent’s contract theory arguments, the resolution
of the General Counsel’s arguments and Respondent’s oppos-
ing counterarguments is not so simple and free from doubt
that Respondent’s position must be considered inarguable or
unreasonable.
In rejecting the General Counsel’s arguments here, it is not
so much that I find counsel for the General Counsel’s argu-
ments on the contract issues are inadequate, rather my view
of the standard to be applied to Respondent’s actions as es-
tablished in the cited cases is that far more license is to be
given to Respondent in this setting than the General Counsel
proposes.
An additional and significant factor which I find especially
warrants the Board’s staying its hand in the instant case is
the unusual factual situation presented by the existence of
two contract-based arbitration awards under contest in the
court litigation only one of which is under challenge in the
unfair labor practice case. As noted, the Union brought two
actions and obtained two awards against the Charging Party.
The National Joint Adjustment Board interest arbitration
award is before the Federal court. So, too, is the Local Joint
Adjustment Board award in the same cause of action. The
instant Board unfair labor practice case does not challenge as
improper, and any remedy which could be directed in the
case will not effect, the Local Joint Adjustment Board award.
Respondent’s argument that the Charging Party is bound
to the 1988–1991 contract is a common aspect in the instant
case and the Federal court litigation addressing both awards.
It may be presumed that, if the Federal court action goes for-
393SHEET METAL WORKERS LOCAL 102 (R & J SHEET METAL)
9 Both at the hearing and on brief, the Charging Party argued that
the Local Joint Adjustment Board award should be both part of the
General Counsel’s theory of a violation and a part of any directed
remedy in the case. Counsel for the General Counsel did not make
such a contention in her pleadings, on the record or on brief. It is
the General Counsel, not the Charging Party, who has essentially
plenary control over the scope of the allegations pled. The Charging
Party therefore cannot expand the complaint.
10 While the Board in Bill Johnson’s Restaurants cases sometimes
awaits the outcome of the court litigation in determining if a re-
spondent’s litigation was violative of the Act (see, e.g., Dahl Fish
Co., 279 NLRB 1084 (1986)), enfd. mem. 813 F.2d 1254 (D.C. Cir.
1987), the Board in Collier Electric and its progeny has dismissed
unfair labor practice complaints following a finding that it is appro-
priate to allow the court action to proceed.
ward, the court will reach a single determination on the con-
tract issue and, based on that finding, determine the validity
of each of the two awards.
The General Counsel here is not attacking the Local Joint
Adjustment Board grievance filed by Respondent, the award
of the Local Joint Adjustment Board, or Respondent’s de-
fense of the Local Joint Adjustment Board award in its coun-
terclaim in the U.S. district court action.9 Therefore, even if
the General Counsel prevails and obtains all the relief re-
quested, the Federal district court action will still be required
to decide the issues respecting the Charging Party’s attack on
the Local Joint Adjustment Board award and Respondent’s
counterclaim that the award is valid. Thus the Federal district
court will still have to reach the contract issues presented
here, irrespective of the outcome of the instant case.
The Board in Collier Electric, supra, 296 NLRB at 1099,
held the courts are particularly well suited to determining
whether employers are bound to interest arbitration provi-
sions citing Sheet Metal Workers Local 57 Welfare Fund 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). As discussed supra, one reason
for establishing a deferral policy is to avoid the dangers of
conflicting Board and court contract interpretations. It seems
particularly appropriate to defer an unfair labor practice pro-
ceeding to a currently pending Federal court action where the
court’s resolution will answer all the questions presented in
the unfair labor practice case, but where the resolution of the
unfair labor practice case by the Board will not resolve all
the matters presented in the Federal court action. Only Board
deferral in such a situation will insure a single resolution of
the contract question, obviate the problem of conflicting
Board and court decisions, and lead to uniformity of results
explicitly favored by Collier Electric and its progeny as
quoted supra.
Given all the above, I find it appropriate to defer the in-
stant action to the current U.S. district court litigation be-
tween the parties. Consistent with the Board’s decision in
Collier Electric, I shall therefore dismiss the complaint.
3. The remaining issue of the potentially perpetual
interest arbitration clause
As noted supra at footnote 7, the Charging Party argued
that since the Union sought and obtained from the National
Joint Adjustment Board an award which directed the Charg-
ing Party to sign a contract with yet another interest arbitra-
tion clause, a situation has been created where the Charging
Party is potentially unable ever to free itself from a never
ending series of interest arbitrations resulting in the imposi-
tion of an infinite number of contracts with interest arbitra-
tion clauses. The Charging Party argues, with case authority,
that Section 8(b)(1)(B) of the Act is violated in such situa-
tions. See the Charging Party’s brief (Br. 20–21).
In Sheet Metal Workers Local 20 (Baylor Heating), supra,
301 NLRB at 261, the Board found insufficient evidence of
union coercion to sustain an 8(b)(1)(B) finding where a
union in taking an employer to an interest arbitration had
sought essentially only to maintain the status quo with re-
spect to the interest arbitration provisions in the contract. In
finding no violation, the Board relied in part on the fact that
the National Joint Adjustment Board award in the case was
equivocal respecting interest arbitration in the new contract
and the U.S. district court order enforcing the National Joint
Adjustment Board award held the interest arbitration lan-
guage could be included in the imposed agreement only
through the mutual consent of the parties.
Federal courts, including the Ninth Circuit Court of Ap-
peals wherein the instant U.S. district court action lies, clear-
ly find void and unenforceable the inclusion of interest arbi-
tration language in interest arbitration contract awards absent
the consent of both parties. American Metal Products v.
Sheet Metal Workers, 794 F.2d 1452, 1457 (9th Cir. 1986).
It seems clear therefore that the U.S. district court or higher
reviewing authority in the current court action will reach the
same or similar result as the court in Baylor Heating respect-
ing the interest arbitration language of the 1991–1994 agree-
ment, should the issue ripen. Accordingly, I find the Charg-
ing Party’s argument an insufficient basis to withhold defer-
ral of this matter.
The Charging Party’s argument in this regard requires fur-
ther consideration. I do not find a simple dismissal warranted
here however because of the fact, discussed above, that the
National Joint Adjustment Board award directs the Charging
Party to sign a contract which itself contains mandatory in-
terest arbitration language.10 The Charging Party should not
be denied Board relief from such a clearly improper award
based on an administrative law judge’s bland assurance that
the Federal courts will simply not allow that portion of the
National Joint Adjustment Board’s award which imposes
new interest arbitration language in the new contract to
stand. Rather, following the procedure of the Board in United
Technologies Corp., 268 NLRB 557, 560 (1984), I shall dis-
miss the case, but provide for retention of jurisdiction for the
limited purpose of entertaining an appropriate motion for fur-
ther consideration based on a showing that the portion of the
National Joint Adjustment Award directing the Charging
Party to sign a contract including mandatory interest arbitra-
tion provisions remains in effect on the conclusion of the
current U.S. district court litigation.
On the basis of the above findings of fact and on the en-
tire record, I make the following
CONCLUSIONS OF LAW
1. The Charging Party is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
2. Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent did not violate the Act as alleged in the
complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
The complaint is dismissed, provided that:
Jurisdiction of this proceeding is retained for the limited
purpose of entertaining an appropriate and timely motion for
further consideration based on a showing that the portion of
the National Joint Adjustment Award directing the Charging
Party to sign a contract including mandatory interest arbitra-
tion provisions remains in effect on the conclusion of the
current Federal court litigation.