Sheet Metal Workers, Local 38

National Labor Relations Board - Board Decisions

Aug 29, 1977

231 N.L.R.B. 699 (N.L.R.B. 1977)

SHEET METAL WORKERS, LOCAL 38
Sheet Metal Workers International Association, Local
Union No. 38 and Elmsford Sheet Metal Works,
Inc. Case 2-CB-6415
August 29, 1977
DECISION AND ORDER
Upon charges duly filed on September 23, 1976, by
Elmsford Sheet Metal Works, Inc., the Regional
Director for Region 2 of the National Labor
Relations Board, acting on behalf of the General
Counsel of the Board, on November 5, 1976, issued a
complaint alleging that the Respondent Union, Sheet
Metal Workers International Association, Local
Union No. 38 (hereafter Local 38), violated Section
8(b)(3) and Section 8(b)(1)(B) of the National Labor
Relations Act, as amended (29 U.S.C. § 151, et seq.).
The Respondent filed an answer to the complaint in
which it admitted certain allegations of the com-
plaint and denied others, including all those charging
it with the commission of any unfair labor practices.
On January 12, 1977, the General Counsel, the
Charging Party, and the Respondent entered into a
stipulation in which they agreed to waive a hearing
before an Administrative Law Judge, the issuance of
an Administrative Law Judge's Decision, and the
presentation of any evidence other than that con-
tained in the stipulation and the exhibits there
referred to. By order dated February 16, 1977, the
Board approved the stipulation and transferred the
proceeding to the Board. Thereafter the General
Counsel and the Respondent filed briefs with the
Board.
The Board has considered the entire record in this
case, including the parties' briefs, and makes the
following findings and conclusions.
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Elmsford Sheet Metal Works, Inc. (hereafter
Elmsford), has been at all times material a corpora-
tion duly organized under the laws of the State of
New York with its principal place of business at
Peekskill, New York, where it has been engaged as a
contractor in the building and construction industry
providing sheet metal contracting services and
related services. Elmsford annually performs services
valued in excess of $500,000, of which services valued
in excess of $50,000 were performed in and for
various enterprises outside the State of New York.
Accordingly, in agreement with the stipulation of the
parties, we find that the Company has been at all
I Art. VIIl. Secs. 12(b) and 13(b). See Appendix B, attached hereto, for
full text.
231 NLRB No. 101
times material an employer engaged in commerce
and in operations affecting commerce within the
meaning of Section 2(6) and (7) of the Act. It will
therefore effectuate the policies of the Act to assert
jurisdiction in this proceeding.
II. THE LABOR ORGANIZATION
It is stipulated, and we find, that the Respondent is
a labor organization within the meaning of Section
2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
Since about 1952 until in or about September 1975
Elmsford was a member of the Sheet Metal and
Roofers Employer's Association of Southeastern
New York, Inc. (hereinafter the Association), an
association which bargained collectively with the
Respondent for the member's employees in a unit
consisting of all journeymen and apprentice sheet
metal employees. On June 30, 1975, Elmsford, by
Vincent Gervasi, its president, sent a letter tendering
its resignation from the Association. The Association
rejected the resignation because negotiations were
not concluded at that time. On July 1, 1975, the
Association entered into a collective-bargaining
agreement with Local 38, effective until June 30,
1976. The agreement contained provisions which
required the employer to contribute to national and
local industry funds (hereafter industry funds).' It
also contained a provision requiring any dispute
arising out of the failure to renegotiate a renewal of
the agreement be submitted to local and National
Joint Adjustment Boards for a final and binding
decision (hereafter interest arbitration).2 The local
and National Joint Adjustment Boards consisted of
an equal number of representatives of the local and
international union and the local and national
employer's associations.
On September 3, 1975, Elmsford sent a letter of
resignation to the Association which was accepted,
and on September 18, 1975, Elmsford signed a
separate agreement with Local 38 effective until June
30, 1976. The September 18 agreement contained
provisions identical to those in the Association
agreement, including article VIII, sections 12(b) and
13(b), and article X, section 8.
On March 26, 1976, Elmsford sent a letter to
Respondent indicating the desire to renegotiate the
present contract and stating that among the items it
would like to negotiate were the elimination of the
provisions for industry funds and interest arbitration.
On April 26, 1976, Respondent acknowledged receipt
of Elmsford's proposals and made counterproposals.
2 Art. X, sec. 8. See Appendix B. attached hereto, for full text.
699
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent also notified the New York State
Mediation Board and the Federal Mediation and
Conciliation Service of the forthcoming negotiations.
Elmsford and Local 38 held negotiation sessions on
May 11, 1976, and on June 7, 1976. At both meetings
Elmsford proposed the elimination of the provisions
for industry funds and interest arbitration. Local 38
rejected these proposals at each meeting.
On July 27, 1976, the Association and Local 38
concluded a 2-year agreement running from July 1,
1976, until June 30, 1978. This agreement contained
provisions for industry funds and interest arbitration
which were identical to those in its July 1, 1975,
agreement. When Elmsford and Local 38 met for a
third negotiating session on August 30, 1976, Local
38 stated that it wanted Elmsford to agree to the
terms of the Association agreement. Elmsford res-
ponded that it was not willing to agree to the
provisions for industry funds and interest arbitration.
Elmsford and Local 38 reasserted the same positions
in their meeting on September 7, 1976, and Local 38
stated that they were at a deadlock.
On September 10, 1976, Local 38 filed an applica-
tion for a hearing before the National Joint Adjust-
ment Board (hereafter NJAB) under article X of its
1975-76 contract with Elmsford. The NJAB held a
hearing on November 9, 1976. Local 38 was
represented by its president and business manager,
Charles Hertel. Elmsford did not appear. On Novem-
ber 11, 1976, the NJAB issued a decision finding that
Elmsford was required to execute a contract with
provisions requiring interest arbitration and industry
funds.
On November 24, 1976, Local 38 informed Elms-
ford by letter that, due to Elmsford's refusal to abide
by the decision of the NJAB, they were "no longer in
signed agreement." On November 26, 1976, Local 38
sent a letter to Elmsford's employees informing them
that they were not to report for work on December 1,
1976. However, Local 38 called off the strike action
on December 1, 1976, and the parties agreed to
execute a collective-bargaining agreement without
the disputed provisions. In a separate letter, the
:' N L.R.B. v. Wooster Division of Borg-Warner Corporation, 356 U.S. 342
( 1958).
4 Detroit Resilient Floor Decorators Local Union No. 2265 of the United
Brotherhood of Carpenters and Joiners of America, AFL-CIO (Mill Floor
Covering. Inc.), 136 NLRB 769, 771, 772 (1962), enfd. 317 F.2d 269 (C.A. 6,
1963).
With regard to industry funds, the Board has held that they are outside
the employment relationship, since they concern themselves "with the
relationship of employers to one another or, like advertising, with the
relationship of an employer to the consuming public." As we have said,
while we intend to keep pace, through interpretation of the general terms
embodied in Sec. 8(d), with changing conditions "to insure that bargaining
for new forms of 'wages' or for hitherto undeveloped terms or conditions of
employment is not restricted," we are not empowered to lend our "sanctions
of enforcement either to encourage or to discourage experimentation,
through the bargaining process, in areas which are outside the employment
relationship altogether, or which, at best, touch it only peripherally." Of
parties agreed to be bound by the final decision of
the National Labor Relations Board on the instant
complaint, with the result that, should the complaint
be dismissed, the contract would be amended to
include the provisions.
The General Counsel contends that interest arbi-
tration and industry funds are nonmandatory sub-
jects of bargaining and that, by insisting upon these
subjects to impasse, Respondent violated Section
8(b)(3) of the Act. The General Counsel further
contends that by its insistence on the inclusion of the
interest arbitration provision in the prospective
bargaining agreement and by threatening to strike
over the inclusion of the disputed provisions,
Respondent violated Section 8(b)(1)(B) of the Act.
The Respondent Union, on the contrary, contends
that it did not insist on the inclusion of the disputed
provisions to impasse, but merely acted in accord-
ance with its existing contractual obligations by
submitting the unresolved issues to the NJAB under
article X, section 8, of the September 18, 1975,
contract with Elmsford. The Respondent further
contends that, even if it did insist on the disputed
provisions to the point of impasse, it did not thereby
violate the Act because the provisions are mandatory
subjects of bargaining.
For the reasons set forth below, we find that
Respondent violated Section 8(b)(3) of the Act by
insisting on the inclusion of provisions for interest
arbitration and industry funds in the bargaining
agreement as a precondition for signing the agree-
ment.
The mutual obligation of employers and unions to
bargain in good faith as defined in Section 8(d) of the
Act includes the requirement that they "confer in
good faith with respect to wages, hours, and other
terms and conditions of employment." A provision
which does not relate to these matters is a nonman-
datory subject of bargaining and no party may insist
upon its inclusion in the bargaining agreement to the
point of impasse.3 The Board has held that industry
funds4 and interest arbitration clauses 5 are nonman-
datory subjects of bargaining. Here, Respondent's
course, our finding here does not imply that parties are not free to include
provisions of this type in collective-bargaining agreements-only that there
is no obligation that either party bargain thereon.
The Columbus Printing Pressmen d Assistants' Union No. 252, Subordi-
nate to IP & GCU (The R W. Page Corporation), 219 NLRB 268 (1975);
Greensboro Printing Pressmen and Assistants' Union No. 319 (The Greensboro
News Company), 222 NLRB 893 (1976); Massachusetts Nurses Association
(Lawrence General Hospital), 225 NLRB 678 (1976).
We note that every circuit court which has considered our view as to
interest arbitration clauses has affirmed the Board's decisions and enforced
its orders. N.L.R.B. v. Massachusetts Nurses Association, 557 F.2d 894 (C.A.
1, 1977); N. LR.B. v. The Columbus Printing Pressmen and Assistants' Union
No. 252, 543 F.2d 1161, 1164-66. (C.A. 5, 1976); N.LR.B. v. Greensboro
Printing Pressmen and Assistants' Union No. 319, 549 F.2d 308 (C.A. 4, 1977).
In the words of the First Circuit, "'w }e agree with the conclusion of the Fifth
and Fourth Circuits that an interest arbitration provision bears only a
remote relation, if any, to wages, hours or other terms or conditions of
700
SHEET METAL WORKERS, LOCAL 38
demand for both of these subjects resulted in the
issuance of an NJAB decision in which Elmsford
refused to participate, and subsequently refused to
recognize, the Respondent's assertion that it was no
longer in signed agreement with Elmsford because of
Elmsford's refusal to recognize the NJAB decision,
and Respondent's threat to strike if Elmsford did not
agree to the NJAB decision requiring the inclusion of
the disputed provisions in the new bargaining
agreement.
In these circumstances, we find that Respondent
insisted on the nonmandatory subjects of industry
funds and interest arbitration to impasse and thereby
violated Section 8(b)(3) of the Act.
We further find that Respondent's conduct consti-
tuted a violation of Section 8(b)(l)(B) of the Act. In a
previous case involving this same International, the
Board found that the Union's insistence on the
inclusion of an interest arbitration clause identical to
that in the instant case restrained and coerced the
employer in its choice of a representative for the
purposes of collective bargaining in violation of
Section 8(b)(1)(B).6 The circumstances presently
before us closely parallel those of Sheet Metal
Workers Association, Local Union No. 59, supra, and,
for the reasons set forth therein, we conclude that
Respondent violated Section 8(b)(1)(B) by its insi-
stence to impasse on the inclusion of an interest
arbitration clause in its prospective bargaining
agreement with Elmsford. Respondent's threat to
strike as a means to compel Elmsford to accept
interest arbitration in the future bargaining agree-
ment is further support for our finding that Respon-
dent restrained and coerced Elmsford in the selection
of its own bargaining representative.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent as set forth above,
occurring in connection with the Employer's opera-
tions, have a close, intimate, and substantial relation-
ship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes
burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
violations of Section 8(b)(3) and Section 8(b)(1)(B) of
the Act, we shall order that it cease and desist
therefrom and take certain affirmative action in
order to effectuate the policies of the Act. Since the
Respondent has violated Section 8(b)(3) of the Act
employment and. accordingly. is not a mandatory subject of bargaining."
' Sheet Metal Workers Internarional Associalion. Local Union No. 59, 227
NLRB 520 (1976).
by insisting to a point of impasse for the inclusion in
a contract of nonmandatory subjects of bargaining,
and since the obligation to bargain continues after
impasse, the further insistence that the nonmandato-
ry subjects of bargaining be arbitrated is, in effect, a
continuation of the same violative conduct. We
therefore order that the Respondent bargain in good
faith and cease and desist from such insistence for
arbitration of the nonmandatory subjects of bargain-
ing.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Sheet Metal Workers International Association,
Local Union No. 38, Peekskill, New York, its
officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith with Elmsford
Sheet Metal Works, Inc., by insisting to a point of
impasse, as a condition of reaching a new collective-
bargaining agreement with Elmsford, on a continua-
tion of the nonmandatory subjects of bargaining
contained in article X, section 8 (interest arbitration)
of the bargaining agreement which expired on June
30, 1976.
(b) Refusing to bargain in good faith with Elmsford
Sheet Metal Works, Inc., by insisting to a point of
impasse, as a condition of a new collective-bargain-
ing agreement with Elmsford, on a nonmandatory
subject of bargaining contained in article VIII,
sections 12(b) and 13(b) (industry funds), of the
bargaining agreement which expired on June 30,
1976.
(c) Refusing to bargain in good faith with Elmsford
Sheet Metal Works, Inc., by entering into and
continuing negotiations with a fixed mind and
position not to arrive at a collective-bargaining
agreement without the inclusion of article VIII,
sections 12(b) and 13(b), and article X, section 8, of
the collective-bargaining agreement which expired
on June 30, 1976.
(d) Restraining or coercing Elmsford Sheet Metal
Works, Inc., in the selection of their representatives
for the purposes of collective bargaining by insisting
on the continuation in a new bargaining agreement
of the provisions contained in article X, section 8, of
the collective-bargaining agreement which expired-
on June 30, 1976.
(e) Insisting on compliance with, or attempting to
enforce, the award of the National Joint Adjustment
Board of November 11, 1976, including the threat to
701
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike, insofar as that award determines the terms
and conditions of a new collective-bargaining agree-
ment between the Respondent Union and Elmsford
Sheet Metal Works, Inc.
(f) In any like or related manner restraining or
coercing Elmsford Sheet Metal Works, Inc., in the
selection of their bargaining representatives for the
purposes of collective bargaining, or in any like or
related manner refusing to bargain collectively with
Elmsford by insisting upon the inclusion in the
collective-bargaining agreement of provisions or
proposals not related to wages, hours, and other
terms or conditions of employment.
2. Take the following affirmative action to reme-
dy the unfair labor practices found herein and to
effectuate the policies of the Act:
(a) Bargain with Elmsford Sheet Metal Works,
Inc., concerning the wages, hours, and other terms
and conditions of employment for employees in the
following appropriate bargaining unit.
All journeymen and apprentice sheet metal
workers employed by Elmsford Sheet Metal
Works, Inc., excluding supervisors as defined in
the National Labor Relations Act.
(b) Notify Elmsford Sheet Metal Works, Inc., that
the Respondent Union will not insist to impasse, as a
condition of a new collective-bargaining agreement,
on continuation of the provisions of article X, section
8, and article VIII, sections 12(b) and 13(b), of the
bargaining agreement which expired on June 30,
1976.
(c) Post at Respondent Union's offices and meeting
halls, copies of the attached notice marked "Appen-
dix A." 7 Copies of said notice, on forms provided by
the Regional Director for Region 2, after being duly
signed by the Respondent Union's representative,
shall be posted by it immediately upon receipt
thereof, and be maintained by the Respondent
Union for 60 consecutive days thereafter, in conspic-
uous places, including all places where notices to
members are customarily posted. Reasonable steps
shall be taken by the Respondent Union to insure
that said notices are not altered, defaced, or covered
by any other material.
(d) Sign and mail sufficient copies of said notice to
the aforesaid Regional Director for posting by
Elmsford Sheet Metal Works, Inc., if it is willing,
said notice to be posted in all locations where notices
to employees are customarily posted.
(e) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Order,
' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
what steps the Respondent Union has taken to
comply herewith.
CHAIRMAN FANNING, dissenting:
I do not find this case significantly different from
Sheet Metal Workers International Association, Local
Union No. 59, 227 NLRB 520. Accordingly, for the
reasons set forth in my opinion in that case, I would
dismiss the complaint here.
MEMBER MURPHY, dissenting:
Contrary to my colleagues, I would find that the
Sheet Metal Workers did not violate Section 8(b)(3)
and (1)(B) and would dismiss the complaint in its
entirety.
With respect to the alleged violations of Section
8(b)(3), I would find that the provisions for interest
arbitration and industry funds which the Respondent
sought to include are mandatory subjects of bargain-
ing and Respondent was therefore free to insist to
impasse upon their inclusion. In this regard, I
reemphasize and reassert my views on the mandatory
nature of interest arbitration which are set forth at
length in my dissenting opinion in The Columbus
Printing Pressmen and Assistants' Union No. 252,
Subordinate to IP & GCU (The R. W. Page Corpora-
tion), 219 NLRB 268 (1975).
Any issue which settles an aspect of the relation-
ship between the employer and employees8 concern-
ing wages, hours, working conditions, or other terms
or conditions of employment is a mandatory subject
for bargaining. That an interest arbitration provision
does so is beyond dispute, for by its very nature it
provides a peaceful judicial-type procedure in place
of economic warfare as a means of settling any such
aspect of the employment relationship upon which
there may be disagreement. Its provision for the
continuing effectiveness of established contract terms
throughout the negotiation period for renewal
thereof and the assurance of continued employment
to workers and uninterrupted production to the
employer are the very essence of the bargaining
relationship and the protection of employer-employ-
ee interests. Further, the subject matter of bargaining
must reflect the changing conditions of industrial
society and the changing needs and responsibilities
of labor and management. I am persuaded that
interest arbitration does reflect such conditions and
advances public policy favoring the voluntary resolu-
tion of disputes and the avoidance of economic
warfare.9 In my view, it clearly is the collective-
bargaining tool of the future, and I am surprised by
8 Allied Chemical & Alkali Workers of America, Local Union No. I v.
Pittsburgh Plate Glass Co., Chemical Division, et al, 404 U.S. 157, 178 (1971).
9 See Winston-Salem Printing Pressmen and Assistants' Union v. Piedmont
702
SHEET METAL WORKERS, LOCAL 38
the unwillingness of my colleagues to find it a
mandatory subject of bargaining.
In the case of industry funds, I am, of course,
aware that the Board has consistently held that such
funds are nonmandatory subjects. In my opinion this
is also an incorrect view and is inconsistent with
other of the Board's holdings in the area of
mandatory subjects of bargaining. The stated pur-
pose of the industry funds in the instant case is "to
promote programs of industry education, training,
negotiation and administration of collective bargain-
ing agreements, research and promotion, such
programs serving to expand the market for the
services of the sheet metal industry, improve the
technical and business skills of employers, stabilize
and improve Employer-Union relations, and pro-
mote, support, and improve the employment oppor-
tunities for employees." '° As the Board has stated in
the past, such an industry fund can affect employees'
opportunities in the long run." Nevertheless the
Board has erroneously held here that such funds are
nonmandatory subjects of bargaining, reasoning that
to make a matter a mandatory subject of bargaining
simply because it might conceivably enhance the
prospects of the industry would transform bargaining
over the compensation, hours, and employment
conditions of employees into a debate over policy
issues.' 2
The flaw in this logic is that industry funds are not
ambiguous matters which have only an arguable
connection with the enhancement of the industry.
Rather, the sole purpose of the funds is to promote
the industry, and thereby improve employment
opportunities for unit employees through increased
business opportunities for the employer. Further-
more, no one can question that education, research,
and promotion are rationally related to this goal.
Whether or not these means actually succeed is not
and never has been a measure of whether a subject is
one upon which the parties are compelled to bargain.
Publishing Company, of Winston-Salem) 393 F.2d 221 (C.A. 4, 1968); Aikens
v. Abel. 373 F.Supp. 425 (D.C.Pa., 1974); and Chattanooga Mailers' Union,
Local No. 92 v. The Chattanooga News-Free Press Compane, 524 F.2d 1305
(C.A. 6, 1975). A provision which contributes to the avoidance of economic
warfare between labor and management is, in my view, directly linked to the
conditions of employment and is therefore a mandatory subject of
bargaining. I am aware, however, that the First, Fourth, and Fifth Circuits
have affirmed the Board's finding that interest arbitration provisions are
nonmandatory subjects of bargaining. N.LR.B. v. Massachusetts Nurses
Association, 557 F.2d 894 (C.A. 1, 1977); N.L.R.B. v. Greensboro Pnnring
Pressmen and Assistants' Union No. 319, 549 F.2d 308 (C.A. 4. 1977);
N.LR.B. v. The Columbus Printing Pressmen and Assistants' Union No. 252,
543 F.2d 1161 (C.A. 5, 1976). In my opinion, these decisions fail to recognize
that interest arbitration promotes the public policy favoring avoidance of
industrial strife, and should not be followed.
to Art. VIII, secs. 12(a) and 13(a). This is consistent with the types of
objectives sought by most such funds.
n Detroit Resilient Floor Decorators Local Union No. 2265 of the United
Brotherhood of Carpenters and Joiners of America, AFL CIO (Mill Floor
Covering, Inc.), 136 NLRB 769(1962). enfd. 317 F.2d 269 (C.A. 6, 1963).
12 Detroit Resilient Floor Decorators Local Union No. 2265. supra.
Many provisions in contracts dealing with mandato-
ry subjects have only speculative value. Thus, the
future value of the stock in a stock purchase plan is
uncertain. Similarly, the future value to employees of
the employer's contributions under a pension plan is
dependent on the continued existence of the employ-
er, the survival of the employees to retirement age,
and the inflationary trend of the economy. Yet the
Board has long held that these items are mandatory
subjects of bargaining affecting employees' potential
income. 13
A consistent approach requires that industry funds
also be found mandatory subjects since they equally
affect unit employees' potential income by attempt-
ing to assure the continued existence of business for
the employer and the resulting job opportunities for
unit employees. 14 I would so find.
With respect to the alleged violation of Section
8(b)(l)(B), I find that an interest arbitration provi-
sion does not restrain or coerce an employer in the
selection of its own bargaining representatives. There
is nothing inherently unlawful about the voluntary
agreement to preclude bargaining of the parties
themselves as to the final resolution of disputed
matters on which impasse has been reached. Here,
Elmsford voluntarily agreed to the interest arbitra-
tion provision in its September 18, 1975, agreement
with Local 38, even though it was aware of the fact
that it was not represented on the National Joint
Adjustment Board. Since interest arbitration is, in
my view, a mandatory subject of bargaining, I find
that Respondent's insistence on it to the point of
impasse, and Respondent's threat to strike to attain
Elmsford's acceptance of the NJAB decision requir-
ing inclusion of interest arbitration and industry fund
provisions in the new bargaining agreement, did not
constitute a violation of Section 8(b)(I XB).
Accordingly, I dissent from the findings that the
Respondent violated Section 8(b)(3) and (I)(B).
1: Richfield Oil Corporation. 10 NLRB 356 (1954), enfd. 231 F.2d 717
(C.A.D.C., 1956) (stock purchase plans); Inland Steel Company, 77 NLRB I
(1948), enfd. 170 F.2d 247 (C.A. 7, 1948). cert. denied 336 U.S. 960 (1948)
(pension plans).
1' See my dissenting opinion in Sheet Metal Workers International
Association, Local Union No. 59 (Employers Association of Roofers and Sheet
Metal Workers, Inc.), 227 NLRB 520 (1976).
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain in good faith
with Elmsford Sheet Metal Works, Inc., by
insisting to a point of impasse, as a condition of
703
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reaching a new collective-bargaining agreement,
on the continuation of the nonmandatory subjects
for bargaining contained in article X, section 8
(interest arbitration), of the bargaining agreement
which expired on June 30, 1976.
WE WILL NOT refuse to bargain in good faith
with Elmsford Sheet Metal Works, Inc., by
insisting to a point of impasse, as a condition of a
new collective-bargaining agreement, on the
continuation of the nonmandatory subjects for
bargaining contained in article VIII, sections
12(b) and 13(b) (industry funds) of the bargaining
agreement which expired on June 30, 1976.
WE WILL NOT refuse to bargain in good faith
with Elmsford Sheet Metal Works, Inc., by
entering into and continuing negotiations with a
fixed mind and position not to arrive at a
collective-bargaining agreement without the in-
clusion of article VIII, sections 12(b) and 13(b),
and article X, section 8, of the bargaining
agreement which expired on June 30, 1976.
WE WILL NOT restrain or coerce Elmsford Sheet
Metal Works, Inc., in the selection of their
representatives for the purposes of collective
bargaining by insisting on the continuation in a
new bargaining agreement of the provisions
contained in article X, section 8, of the bargaining
agreement which expired on June 30, 1976.
WE WILL NOT insist on compliance with, or
attempt to enforce, the award of the National
Joint Adjustment Board of November 11, 1976,
including the threat to strike, insofar as that
award determines the terms and conditions of a
new collective-bargaining agreement between
Sheet Metal Workers International Association,
Local Union No. 38, and Elmsford Sheet Metal
Works, Inc.
WE WILL NOT in any like or related manner
restrain or coerce Elmsford Sheet Metal Works,
Inc., in the selection of their bargaining represent-
atives for the purposes of collective bargaining,
or in any like or related manner refuse to bargain
collectively with Elmsford by insisting upon the
inclusion in the collective-bargaining agreement
of provisions or proposals not related to wages,
hours, and other terms or conditions of employ-
ment.
WE WILL bargain with Elmsford Sheet Metal
Works, Inc., concerning the wages, hours, and
other terms and conditions of employment for
employees in the following appropriate bargain-
ing unit.
All journeymen and apprentice sheet metal
workers employed by Elmsford Sheet Metal
Works, Inc., excluding supervisors as de-
fined in the National Labor Relations Act.
WE WILL notify Elmsford Sheet Metal Works,
Inc., that we will not insist to impasse as a
condition of a new collective-bargaining agree-
ment on continuation of the provision of article
X, section 8, and article VIII, sections 12(b) and
13(b), of the bargaining agreement which expired
on June 30, 1976.
SHEET METAL WORKERS
INTERNATIONAL
ASSOCIATION, LOCAL
UNION No. 38
APPENDIX B
ARTICLE VIII
SECTION 12(a). Contributions provided for in Section
12(b) of this Article will be used to promote programs of
industry education, training, negotiation and administra-
tion of collective bargaining agreements, research and
promotion, such programs serving to expand the market
for the services of the sheet metal industry, improve the
technical and business skills of employers, stabilize and
improve Employer-Union relations, and promote, support,
and improve the employment opportunities for employees.
No part of any such payments, however, shall be used for
political activities or to oppose officially stated policy, or
officially endorsed programs, or to interfere in any way in
the internal affairs of the Sheet Metal Workers' Interna-
tional Association or of any affiliated local union.
(b) The employer shall pay the Sheet Metal and Air
Conditioning Contractors' National Industry Fund of the
United States (IFUS) two cents ($0.02) per hour for each
hour worked on and after the effective date of this
agreement by all employees of the employer covered by
this Agreement. Payment shall be made on or before the
20th day of the succeeding month and shall be remitted to
IFUS, 1611 North Kent Street, Arlington, Virginia, 22209,
or for the purpose of transmittal, through SMREA OF
SEN Y, INC.
(Name of local remitting organization)
SECTION 13(a). Contributions provided for in Section
13(b) of this Article will be used to promote programs of
industry education, training, negotiation and administra-
tion of collective bargaining agreements, research and
promotion, such programs serving to expand the market
for the services of the Sheet Metal Industry, improve the
technical and business skills of employers, stabilize and
improve Employer-Union relations, and promote, support,
and improve the employment opportunities for employees.
No part of any such payments, however, shall be used for
political activities or to oppose officially stated policy or
officially endorsed programs or to interfere in any way in
the internal affairs of the Sheet Metal Workers' Interna-
tional Association or of any affiliated local union.
(b) The Employer shall pay to the Sheet Metal Industry
Fund of Westchester & Vicinity (Name and address of local
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SHEET METAL WORKERS, LOCAL 38
industry fund) (hereinafter referred to as the local industry
fund), 1-1/2% cents ($0.--) per hour for each hour
worked on or after the effective date of this Agreement by
all employees of the employer covered by this Agreement.
Payment shall be made monthly on or before the 20th day
of the succeeding month.
ARTICLE X
SECTION 8 In addition to the settlement of grievances
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 renewal of this agreement
become deadlocked in the opinion of the Local Union or of
the Local Contractors' Association, 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
Contractors' National Association, Inc. If the General
President of Sheet Metal Workers' International Associa-
tion and the Chairman of the Labor Committee of Sheet
Metal and Air Conditioning Contractors' National Associ-
ation, Inc. believe the dispute might be adjusted without
going to final hearing before the National Joint Adjust-
ment 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
between the parties and bring about a mutually acceptable
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 Association and the national office of Sheet
Metal and Air Conditioning Contractors' National Associ-
ation, Inc. shall be promptly so notified without recom-
mendation from the panel representatives. Should the
President of Sheet Metal Workers' International Associa-
tion or the Chairman of the Labor Committee of Sheet
Metal and Air Conditioning Contractors' National Associ-
ation, Inc. fail or decline to appoint a panel member or
should notice of failure of the panel representatives to
resolve the dispute be given, the parties shall promptly 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 established and
modified from time to time by the National Joint
Adjustment Board. The unanimous decision 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.
(b) Any application to the National Joint Adjustment
Board shall be upon forms prepared for that purpose
subject to any changes which may be decided by the Board
from time to time. The representatives of the parties who
appear at the hearing will be given the opportunity to
present oral argument and to answer any questions raised
by members of the Board. Any briefs filed by either party
including copies of pertinent exhibits will also be ex-
changed between the parties in advance of the hearing.
(c) The National Joint Adjustment Board shall have the
right to establish time limits which must be met with
respect to each and every step or procedure contained in
this section. In addition, the President of SMWIA and the
Chairman of the National Labor Committee of SMACNA
shall have the right to designate time limits which will be
applicable to any particular case and any step therein
which may be communicateo to the parties by mail,
telegram, or telephone notification.
(d) Unless a different date is agreed upon mutually
between the parties or is directed by the unanimous
decision of the National Joint Adjustment Board, all
effective dates in the new agreement shall be retroactive to
the date immediately following the expiration date of the
expiring agreement.
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