Sheet Metal Workers Local 91 (Neyens Refrigeration)

National Labor Relations Board - Board Decisions

Jul 9, 1993

311 N.L.R.B. 1140 (N.L.R.B. 1993)

1140
311 NLRB No. 131
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Chairman Stephens would not vote to overrule existing Board
precedent in this case and, for institutional reasons, joins in the deci-
sion to dismiss the complaint.
2 Although the Respondent excepted to what it described as the
judge’s ‘‘finding that Deklewa permitted Neyens to disregard the in-
terest arbitration clause of the parties’ contract,’’ neither the General
Counsel nor the Charging Party filed any exceptions.
Sheet Metal Workers Local Union No. 91, affiliated
with Sheet Metal Workers International Asso-
ciation and Robert Borders, d/b/a Neyens Re-
frigeration Company. Case 33–CB–2540
July 9, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On June 22, 1988, Administrative Law Judge Robert
W. Leiner issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, the General
Counsel filed a brief in support of the judge’s decision,
and both the General Counsel and the Charging Party
filed briefs in response to the Respondent’s exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to adopt the judge’s find-
ings of fact but to reverse his conclusions of law and,
accordingly, to dismiss the complaint.1
A. The Judge’s Findings and Conclusions
In this case the judge held that Sheet Metal Workers
Local Union No. 91 (the Respondent) violated Section
8(b)(1)(B) of the Act by submitting an alleged contract
dispute with Charging Party Robert Borders d/b/a,
Neyens Refrigeration Co. (Neyens) to an interest arbi-
tration panel of the National Joint Adjustment Board
(NJAB) on which Neyens had no designated represent-
ative. He predicated the violation on his finding that
the dispute was submitted over Neyens’ objection and
after expiration of the 1985–1987 collective-bargaining
agreement under which the obligation to submit dis-
putes to a NJAB panel arose. The judge found a fur-
ther violation on the ground that the NJAB award pur-
ported to bind Neyens to a contract with terms iden-
tical to those in a specified multiemployer agreement
which included an interest arbitration clause, although
the NJAB award added the following proviso:
2. It is not the intent of the NJAB to impose any
non-mandatory subjects on an unwilling party. In
the event either the NLRB or any court of com-
petent jurisdiction finds that any provision of this
agreement imposed is a non-mandatory subject,
that provision will be deleted. The parties in such
event are directed to enter into negotiations to
substitute a mandatory replacement. In the event
the parties cannot agree on a replacement for the
disputed section, the Board [NJAB] retains juris-
diction to resolve that issue.
The judge found it unnecessary to decide whether
Neyens lawfully, under the authority of John Deklewa
& Sons, Inc., 282 NLRB 1375 (1987), enfd. sub nom.
Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir.
1988), cert. denied 488 U.S. 889 (1988), terminated
any obligation to bargain with the Respondent on expi-
ration of the 1985–1987 agreement.2
The judge’s recommended Order requires, inter alia,
that the Respondent cease and desist from continuing
to submit its contract dispute with Neyens to NJAB
while Neyens is not represented on that body and from
attempting to cause Neyens to be bound to the multi-
employer agreement specified in the NJAB award.
B. Analysis
We find that the facts of this case bring it within the
holdings of Electrical Workers IBEW Local 113 (Col-
lier Electric), 296 NLRB 1095 (1989), and Sheet Metal
Workers Local 206 (Warrens Industrial), 298 NLRB
760, 762 fn. 4 (1990). Under those precedents, dis-
missal of the complaint in this case is mandated.
In Collier Electric the Board held that when a union
invokes an interest arbitration clause that can reason-
ably be read as requiring employers bound by the
agreement in which the clause appears to submit dis-
putes over the terms of a successor contract to an in-
terest arbitration panel, the union will not be deemed
in violation of Section 8(b)(1)(B). Under its analysis,
the Board would find no 8(b)(1)(B) violation regard-
less whether the employer against which the clause has
been invoked objects and has withdrawn, for the pur-
pose of any subsequent negotiations, from the multi-
employer bargaining association that had negotiated
the contract containing the clause. So long as the em-
ployer is ‘‘arguably’’ bound by the interest arbitration
clause and the union has bargained in good faith up to
the point of the submission of the dispute to the inter-
est arbitration panel, the union’s good-faith resort to
arbitration will not be found to violate the Act. Id. at
1098. Accord: West Coast Sheet Metal v. NLRB, 938
F.2d 1356 (D.C. Cir. 1991).
In Warrens Industrial, supra, the Board held that in-
clusion of an interest arbitration clause in a NJAB
award issued under circumstances like those in this
case did not violate the Act, because the award in-
cluded a proviso that if any clause of the incorporated
agreement were deemed nonmandatory by the Board or
a court, the clause would be deleted and the dispute
returned to NJAB. The Board reasoned that this pro-
viso assured that the NJAB award would ‘‘not ‘saddle’
the parties with ‘a perpetual cycle of binding interest
1141SHEET METAL WORKERS LOCAL 91 (NEYENS REFRIGERATION)
3 Member Devaney is not persuaded by the dissent for the reasons
stated in detail in the majority opinions in Collier Electric and War-
rens Industrial.
1 Electrical Workers IBEW Local 113 (Collier Electric), 296
NLRB 1095 (1989).
2 The present case involves only allegations that the Respondent
violated Sec. 8(b)(1)(B) of the Act.
3 See, e.g., Missouri Portland Cement Co., 284 NLRB 432, 433
(1987) (employees’ right under Sec. 7 to select own bargaining rep-
resentatives); Asbestos Workers Local 27 (Master Insulators), 269
NLRB 719, 721 (1984) (employer’s statutory right to select own bar-
gaining representative).
arbitration.’’’ 298 NLRB at 762 fn. 4, quoting from
Collier Electric, supra, 296 NLRB at 1097 fn. 9.
In the present case Neyens was arguably bound by
article X, section 8 of the 1985–1987 collective-bar-
gaining agreement to submit disputes over negotiations
of a successor contract to the National Joint Adjust-
ment Board (NJAB). The proviso appended to the in-
terest arbitration clause in the NJAB award was iden-
tical to the one considered in Warrens Industrial,
supra. There is no allegation that the Respondent re-
fused, in violation of Section 8(b)(3), to bargain in
good faith. Pursuant to the holdings of Collier Electric
and Warrens Industrial, we dismiss the complaint.3
ORDER
The complaint is dismissed.
MEMBER RAUDABAUGH, dissenting.
It is a fundamental tenet of the Act that each party
in a collective-bargaining relationship has a statutory
right to negotiate a contract through its own represent-
atives. It is also a fundamental tenet of the Act that a
statutory right can be waived only by ‘‘clear and un-
mistakable’’ consent. My colleagues have reached a re-
sult that is in conflict with these principles. They per-
mit the imposition of a contract on an employer, even
though that contract was not negotiated by representa-
tives of the employer and even though the employer
did not clearly and unmistakably waive its statutory
right. I therefore dissent.
My dissent is based on the view that Collier Elec-
tric1 was wrongly decided. In Collier Electric, the
Board held that a union could lawfully seek to impose
on an employer a contract that was handed down by
an interest arbitration panel. The union could do this
even though the employer had not clearly and unmis-
takably agreed to interest arbitration, i.e., it had not
clearly and unmistakably waived its statutory right to
negotiate its own contract. The Board set forth only
two conditions on the union’s ability to impose the in-
terest arbitration contract. The first condition was that
the submission to interest arbitration must be pursuant
to an interest arbitration clause by which the employer
is arguably bound. The second condition was that the
union must have bargained in good faith prior to the
submission. The Board found that both conditions were
met in Collier Electric.
In a dissenting opinion, Chairman Stephens took
issue with the ‘‘arguably bound’’ standard, and he set
forth a basis for finding that the union’s actions vio-
lated Section 8(b)(1)(B) and (3) of the Act. For the
reasons stated in Chairman Stephens’ dissent, and for
the reasons set forth here, I would find that the Re-
spondent violated the Act as alleged.2
As discussed above, I start from the proposition that
both employers and employees enjoy statutory rights to
choose their own representatives for purposes of col-
lective bargaining.3 The employer’s right is protected
by Section 8(b)(1)(B) of the Act. That section makes
it an unfair labor practice for a union ‘‘to restrain or
coerce . . . an employer in the selection of his rep-
resentatives for the purposes of collective bargaining or
the adjustment of grievances.’’ Perhaps, the most basic
of the rights guaranteed by Section 8(b)(1)(B) is the
right of an employer to negotiate its own collective-
bargaining agreement. Indeed, the majority in Collier
Electric did not question the proposition that an em-
ployer’s rights under Section 8(b)(1)(B) would be vio-
lated if, without the employer’s consent, a union sub-
mitted collective-bargaining issues to interest arbitra-
tion and then sought to impose the interest arbitration
agreement on the employer. Such an agreement clearly
would not be one negotiated by representatives of the
employer.
The issue dividing the majority and the dissent in
Collier concerned the standard to be used in deter-
mining whether an employer has consented to the use
of interest arbitration. More particularly, where a mul-
tiemployer contract contains a clause which provides
for interest arbitration in connection with the negotia-
tion of the next multiemployer contract, is that clause
binding on an employer who withdraws from the mul-
tiemployer unit prior to the negotiations for that next
contract? The majority held that a contract clause that
could ‘‘arguably’’ be read as binding such an employer
to the use of interest arbitration for a subsequent agree-
ment would be sufficient to warrant the dismissal of
the unfair labor practice complaint against the union,
provided that the union bargained in good faith with
the employer prior to proceeding to interest arbitration.
In the majority’s view, the interest arbitration clause in
a multiemployer contract ‘‘arguably’’ applies to an em-
ployer who subsequently withdraws from multiem-
ployer bargaining.
I believe that such reasoning overlooks the impor-
tance of the statutory right to bargain one’s own con-
tract. Clearly, that statutory right, like any other, can
be waived only by ‘‘clear and unmistakable consent.’’
(Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708
1142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 See, e.g., Missouri Portland Cement Co., supra, 284 NLRB at
433 (standard applied to employees’ right to choose grievance rep-
resentative); Asbestos Workers Local 27 (Master Insulators), supra,
269 NLRB at 721 (standard applied to employer’s choice of griev-
ance panel representatives); Sheet Metal Workers Local 59 (Employ-
ers Assn.), 227 NLRB 520 at 521 (1976) (standard applied in deter-
mining whether employers had agreed that dispute over inclusion of
interest arbitration clause in future contract could itself be referred
to an interest arbitration panel).
5 John Deklewa & Sons, Inc., 282 NLRB 1375.
6 I am not suggesting that the Respondent’s efforts to preclude the
Employer from exercising its Deklewa right constitutes an additional
violation of the Act. I am simply noting that this is an additional
factor to be considered in deciding whether Sec. 8(b)(1)(B) has been
violated and whether the resolution of this issue should be ceded en-
tirely to the courts.
7 The Board has held that resorts to court can constitute restraint
and coercion under Sec. 8(b)(1)(B). Masters, Mates & Pilots (Cove
Tankers), 224 NLRB 1626 fn. 2, 1634–1635 (1976), enfd. 575 F.2d
896 (D.C. Cir. 1978). See also Sheet Metal Workers Local 59 (Em-
ployers Assn.), supra, 227 NLRB 520, in which the Board, after
finding an 8(b)(1)(B) violation, proscribed court enforcement action.
8 192 NLRB 837 (1971).
(1983)).4 Dismissing a complaint on the grounds that
the clause in question ‘‘arguably’’ waives the statutory
right is wholly inconsistent with this policy.
In the instant case, the statutory right has not been
clearly and unmistakably waived. Neyens was part of
a multiemployer unit represented by Illowa. Illowa and
the Respondent Union agreed to use interest arbitration
if their negotiations for the next contract (i.e., the ne-
gotiations between Illowa and the Union) reached an
impasse. Prior to negotiations for a new contract,
Neyens withdrew from Illowa. The Union then sought
to apply interest arbitration to the negotiations between
Neyens and the Union. In these circumstances, it is far
from ‘‘clear and unmistakable’’ that the interest arbi-
tration clause in the multiemployer contract applied to
the single-employer negotiations between Neyens and
the Union. Indeed, my colleagues in the majority do
not say this; they say only that it is ‘‘arguable’’ that
this is so. However, as discussed infra, I do not believe
that important statutory rights are waived on a bare
showing that it is ‘‘arguable’’ that they are waived.
In addition, the case for a violation here is even
more compelling than in Collier Electric. The collec-
tive-bargaining relationships are governed by Section
8(f), not Section 9. Under Deklewa,5 a party to such
a relationship has a statutory right to terminate it after
the expiration of the 8(f) contract. Neyens has elected
to exercise that right. However, my colleagues in the
majority effectively foreclose that right by permitting
the Union to bind Neyens to a new contract. This
waiver of the Deklewa right is accomplished by a bare
showing that Neyens ‘‘arguably’’ consented to it. In
my view, as with the 8(b)(1)(B) right, the Board
should not permit the waiver of a Deklewa right on a
bare showing that such right has ‘‘arguably’’ been
waived.6
Based on the above, I conclude that Neyens did not
waive its right to negotiate its own contract and did
not waive its right to terminate the 8(f) relationship.
The next issue is whether the Union ‘‘restrained’’
Neyens in exercising that right. I believe that the
Union did so. The Union sought court enforcement of
the interest arbitration award. It thus sought to force
Neyens to honor the contract or be held in contempt
of court. Quite literally, the Union sought to ‘‘re-
strain’’ Neyens with respect to its right to negotiate its
own contract.7
I recognize that Bill Johnson’s Restaurants v. NLRB,
461 U.S. 731 (1983), ordinarily protects a party who
brings a lawsuit which has a reasonable basis. And, I
do not quarrel with the proposition that the Union had
a colorable contract claim. However, Bill Johnson’s
states, at footnote 5, that its general rule (privileging
lawsuits) does not apply if the lawsuit has an unlawful
objective. In the instant case, the lawsuit sought to
achieve a result that is unlawful under Section
8(b)(1)(B). That is, the lawsuit sought to impose on
Neyens a contract that it did not negotiate. Accord-
ingly, the lawsuit falls within the footnote 5 exception
to Bill Johnson’s and can be proscribed as an unfair
labor practice.
By declining to find a violation, my colleagues es-
sentially cede jurisdiction to the district court. I would
not do so. In the first place, the lawsuit was itself un-
lawful. I would not defer to an unlawful lawsuit. Sec-
ond, this case differs fundamentally from the deferral
doctrine of Collyer Insulated Wire.8 Under that doc-
trine, the Board defers (i.e., holds in abeyance) an un-
fair labor practice case in order to give the grievance-
arbitration process an opportunity to resolve a parallel
dispute. However, in Collyer, the Board retains juris-
diction to review the award to make sure that statutory
rights have been adequately safeguarded. In the instant
situation, the Board gives the court carte blanche to do
whatever it wants; there is no opportunity for Board
review.
In addition, the instant case involves matters which
are exclusively entrusted to the Board. These matters
include the interpretation of Section 8(b)(1)(B), the ap-
plication of waiver concepts, the enforcement of
Deklewa rights, and the consequences of withdrawal
from a multiemployer unit. By contrast, the court is
presented only with an issue of contract construction.
By deferring to the court, the Board essentially abdi-
cates its responsibility to interpret the statute and en-
force statutory rights.
Finally, I recognize that the Union here has pre-
vailed in Federal district court. However, I do not be-
lieve that the Board is bound to the court’s decision
by the doctrine of collateral estoppel. In this regard, I
note that (1) the Board was not a party to that case,
(2) the parties in that case were pursuing private rights;
1143SHEET METAL WORKERS LOCAL 91 (NEYENS REFRIGERATION)
9 Compare Litton Business Systems v. NLRB, 111 S.Ct. 2215
(1991), in which only a question of contract interpretation was in-
volved.
10 938 F.2d 1356 (1991).
11 It should be emphasized that the right involved here is not any
right to be free of a lawsuit; it is the right to negotiate one’s own
contract.
12 Sheet Metal Workers Local 59 (Employers Assn.), 227 NLRB
520, 521 (1976), and Sheet Metal Workers Local 263 (Sheet Metal
Contractors), 272 NLRB 43 (1984).
13 To the extent inconsistent, I would overrule Sheet Metal Work-
ers Local 206 (Warrens Industrial), 298 NLRB 760, 762 fn. 4
(1990).
1 The amended complaint was issued February 11, 1988, to which
Respondent Union filed a timely answer. The Charging Party’s
(Neyens Refrigeration Co.) unfair labor practice charge was filed and
served on Respondent on November 30, 1987.
2 ‘‘8(b) It shall be an unfair labor practice for a labor organization
or its agents (1) to restrain or coerce . . . (B) an employer in the
selection of his representatives for the purposes of collective bar-
gaining or the adjustment of grievances.’’
the Board here enforces public rights and obligations,
and (3) the court case involved only the construction
of a contract clause; the instant clause involves Section
8(b)(1)(B), Deklewa, and the impact of withdrawal
from a multiemployer unit.9
The opinion of the D.C. Circuit in West Coast Sheet
Metal v. NLRB10 does not require a contrary result.
The court there held that the doctrine of Collier Elec-
tric was a permissible reading of the National Labor
Relations Act (NLRA). Thus, the court was not hold-
ing that a contrary result would be forbidden by the
NLRA. Indeed, the court suggested that a contrary po-
sition would also be a ‘‘reasonable construction of the
Act.’’ For the reasons set forth above, I believe that
a result contrary to Collier Electric is not only permis-
sible but is more protective of the fundamental right of
a party to negotiate its own contract.11
Finally, I find an additional violation of Section
8(b)(1)(B) in this case based on this fact that the Re-
spondent sought, through interest arbitration, to get a
new interest arbitration clause. The Respondent sought
to place the Employer on an interest arbitration merry-
go-round from which it could never alight. Such con-
duct is unlawful.12 The fact that the Respondent did
not insist to impasse on such a clause does not warrant
a contrary result. In this regard, I do not agree with
the panel decision in Sheet Metal Workers Local 20
(Baylor Heating), 301 NLRB 258 (1991), that no vio-
lation of Section 8(b)(1)(B) may be found unless it can
be shown that the union bargained to impasse over the
subject before submitting the issue to interest arbitra-
tion. In the instant case, impasse was not reached prior
to the unilateral submission to interest arbitration be-
cause the Employer had lawfully claimed its right
under Deklewa, supra, to terminate the collective-bar-
gaining relationship. Regardless of the state of negotia-
tions prior to a unilateral submission to interest arbitra-
tion, permitting inclusion of an interest arbitration
clause in the submission without the other party’s con-
sent would allow self-perpetuation of the interest arbi-
tration system—a result that is contrary to Federal
labor policy. See NLRB v. Columbus Printing Press-
men, 543 F.2d 1161, 1169 (5th Cir. 1976).
I acknowledge that the interest arbitration award in-
cluded a clause which said that a provision of the con-
tract would be ‘‘deleted’’ if ‘‘either the NLRB or any
court of competent jurisdiction finds’’ that the provi-
sion ‘‘is a non-mandatory subject.’’ I do not, however,
find that this renders the provision harmless. In order
to escape from the self-perpetuating provision, an em-
ployer must litigate to conclusion the proposition that
the provision is a nonmandatory subject. Significantly,
the employer remains bound to that self-perpetuating
provision during such litigation. That litigation is likely
to be long and arduous. In these circumstances, I do
not agree that the employer is adequately protected
from the self-perpetuating provision. Cf. Carpenters
(Associated Contractors), 141 NLRB 858, 869 (1963),
revd. on other grounds 332 F.2d 636 (3d Cir. 1964)
(unlawful contract provision not immunized by other
contract provisions ‘‘leaving the question of legality
for later determination’’ in arbitration, Board, or court
proceedings).13
In sum, I would find that the Respondent violated
Section 8(b)(1)(B) of the Act when, in the absence of
a clear and unmistakable manifestation of Neyens’
consent, it submitted unresolved contract issues to in-
terest arbitration—including a request for a new inter-
est arbitration clause—and then sought court enforce-
ment of the resulting interest arbitration award.
Judith T. Poltz, Esq., for the General Counsel.
David W. Stuckel, Esq. (Harvey & Stuckel), of Peoria, Illi-
nois, for the Respondent.
Kathleen A. Reimer, Esq. (Black, Reimer & Goldman), of
Des Moines, Indiana, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. This mat-
ter was heard in Peoria, Illinois, on March 1 and 2, 1988,
upon issues raised by General Counsel’s amended complaint1
alleging, in substance, that the above-captioned Sheet Metal
Workers Local Union No. 91 (the Union) violated Section
8(b)(1)(B) of the Act2 in that the Union unlawfully restrained
and coerced the Charging Party, an employer, in the selection
of its representative for the purposes of collective bargaining
or adjustment of grievances. Respondent’s answer admits
certain allegations of the complaint, denies others, and denies
the commission of any unfair labor practices.
At the hearing, all parties were represented by counsel,
were given full opportunity to call and examine witnesses,
submit oral and written evidence, and to argue orally on the
1144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The parties also stipulated that the following individuals were
agents of the Union within the meaning of Sec. 2(13) of the Act:
Edward M. Praet, business manager; Richard Laue, business rep-
resentative; John Churuvia Jr., business representative; and Julius
Pearson, president, Local 91.
4 The consent was also signed by several other independent con-
struction contractors. The text of the consent is:
We, the undersigned, having full knowledge and authority of the
Company we represent acknowledge receipt of a signed copy of
the June 1, 1985 thru May 31, 1987 labor agreement negotiated
by the Illowa Sheet Metal Contractors Assn. Inc. and the Sheet
Metal Workers Local Union No. 91, and further agree to be
bound by the terms and conditions as set forth herein.
record. At the close of the hearing, all parties waived final
argument and elected to submit posthearing briefs. There-
after, all parties submitted timely briefs which have been
carefully considered.
On the entire record, including the briefs, and from my ob-
servation of the demeanor of the witnesses as they testified,
I make the following
FINDINGS OF FACT
I. JURISDICTION
The Charging Party as Statutory Employer
The complaint alleges, and the parties stipulated (Jt. Exh.
28), that at all material times, Robert Borders has been a sole
proprietor doing business as Neyens Refrigeration Company
(Neyens), with offices and a place of business located in
Keokuk, Iowa. Neyens is in the business of commercial and
residential installation and service of refrigeration, heating
and cooling equipment and sheet metal work. During the past
12 months, a representative period, Neyens purchased and
caused to be transported and delivered to its jobsites located
in Iowa goods and materials valued in excess of $50,000 di-
rectly from States other than the State of Iowa. Neyens is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE UNION AS A STATUTORY LABOR ORGANIZATION
The complaint alleges and the parties stipulated (Jt. Exh.
28) that the above-captioned Union, at all material times, has
been and is a labor organization within the meaning of Sec-
tion 2(5) of the Act.3
III. THE ALLEGED UNFAIR LABOR PRACTICES
Prior to the opening of the hearing, the parties entered into
a substantial stipulation concerning the facts here (Jt. Exh.
28). In addition, supplementary testimony was adduced at the
hearing. That stipulation, together with testimony and other
evidence received at the hearing, shows that at all material
times Illowa Sheet Metal Contractors Association, Inc.
(Illowa), an affiliate chapter of the Sheet Metal and Air Con-
ditioning Contractors National Association (SMACNA), has
been an organization of employers who are engaged, inter
alia, in the sale, installation, and servicing of air-conditioning
products and which exists for the purpose, inter alia, of rep-
resenting its constituent employer-members in negotiating
and administering collective-bargaining agreements with Re-
spondent.
In late 1980 or early 1981, Neyens signed a collective-bar-
gaining agreement with Respondent. At that time, Neyens
employed only Ed Borders, as a sheet metal employee. Ed
Borders is the brother of Robert Borders, sole proprietor of
the Charging Party. I find that Neyens at that time, and at
all material times thereafter, has been an employer engaged
primarily in the building and construction industry and that
the collective-bargaining agreement executed at that time
concerned the construction employees of the Charging Party.
I also conclude that this was a prehire agreement and was
lawfully exempted from any requirement of majority status
by Section 8(f) of the Act. Section 8(f) exempts prehire
agreements in the construction industry from the requirement
of majority union status as a condition of lawfulness. Harris
Painting, 286 NLRB 642 (1987).
Neyens became a member of Illowa, the local affiliate
chapter of SMACNA, in 1981 or 1982 (Tr. 229). The ter-
minal date of the latest Illowa-Respondent collective-bar-
gaining agreement, binding Neyens, was May 31, 1985 (Tr.
229, 232).
On March 1, 1985, Neyens dispatched letters to the Union
and to Illowa informing them that Neyens was ‘‘withdrawing
from the Union and from Illowa effective June 1, 1985,’’
i.e., after the terminal date of the collective-bargaining agree-
ment between the Union and Illowa (Jt. Exh. 2). When
Neyens withdrew its membership from Illowa and the Union,
it advised them that thereafter it would be a ‘‘merit’’ shop.
A merit shop is a nonunion shop. Iowa is a right-to-work
state.
When Illowa received this 1985 notice of Neyens’ with-
drawal from Illowa and from recognition of the Union, its
executive secretary (Richard Davison) notified Neyens that
his attempted withdrawal from Illowa was untimely (Tr. 243)
and that he was considered to be still ‘‘in’’ Illowa. The
Union made no response to Neyens’ March 1, 1985 with-
drawal attempt. However, at this time, Robert Borders took
a withdrawal card from the Union and no longer had to pay
dues (Tr. 246).
In the late summer and fall of 1985, the Union, having
discovered that Robert Borders, apparently contrary to the
Illowa agreement, was himself working at a jobsite, objected
to Border’s doing active jobsite installation work. As a re-
sult, on October 3, 1985, Robert Borders, on behalf of
Neyens, signed a consent to be bound by the existing
‘‘Illowa Agreement,’’ June 1, 1985–May 31, 1987. (Jt. Exh.
4.)4
At the time Borders signed the consent, Neyens employed
three employees: Richard Lindsay, Tim Leimbach, and Ron
Hultz (Tr. 371–372). Although Union Agent Richard Laue
testified that Richard Lindsay and Tim Leimbach were mem-
bers of the Union (Tr. 362–363), it does not appear that Laue
was personally familiar with either of them and was testi-
fying from records showing Neyens’ payment of contractual
fringe benefits to the Union on behalf of its unit employees.
However, these payments were made on behalf of unit em-
ployees, not necessarily on behalf of union members. (Tr.
364, 366.) The evidence shows that Neyens had no dues-
checkoff procedure (Tr. 366); that Robert Borders had no
knowledge of whether any of his employees were actually
members of the Union (Tr. 372); that he was not told by the
individual employees that they were union members; that in
October 1985, Tim Leimbach was an apprentice in the ap-
1145SHEET METAL WORKERS LOCAL 91 (NEYENS REFRIGERATION)
5 By art. 5, sec. I of the 1985–1987 agreement to which Neyens
assented to be bound on October 3, 1985, the requirement for union
membership is 8 days following the beginning of an employee’s em-
ployment covered by the agreement.
6 The letter of January 14, 1987, reads:
Re: Collective Bargaining with Local 91 Sheet Metal Workers
Union. Dear Mr. Davison [Executive Director of Illowa ]: As
you are aware Neyens Refrigeration withdrew any and all bar-
gaining rights it may have assigned to the Illowa Sheet Metal
Contractors Association, Inc., to negotiate any collective-bar-
gaining agreements with Local 91 some time ago.
We wish to remind you that Neyens Refrigeration is not and
will not be part of any multi-employer collective-bargaining
group with respect to future negotiations with Local 91, and we
ask that you be certain not to make any representations to Local
91 to the contrary.
7 Illowa Executive Secretary Davison testified that (Tr. 131 et
seq.), not only was Neyens not an Illowa member in 1987, but in
the bargaining of 1985 for the new (1985–1987) contract (between
Illowa and Local 91), because of an internal dispute, there were no
‘‘members’’ of Illowa; that Illowa did not notify the Union on
whose behalf it was bargaining and that Illowa believed it was not
then authorized to bargain for anyone. It then reached agreement
with Local 91 and thereafter employers reestablished membership in
Illowa.
8 It is undisputed that the NJAB membership consists of equal rep-
resentation of members of SMACNA and the Union. There is no
independent member on the NJAB.
Art. X, sec. 8, of the expired collective-bargaining agreement, in
pertinent part, provides:
Section 8. In addition to the settlement of grievances arising out
of interpretation or enforcement of this agreement . . . any con-
troversy or dispute arising out of the failure of the parties to ne-
gotiate a renewal of this agreement shall be settled as hereinafter
provided:
(a) Should the negotiations for renewal of this agreement be-
come deadlocked . . . the parties shall promptly be notified
so that either party may submit the dispute to the National
Joint Adjustment Board . . . . The unanimous decision of
said Board shall be final and binding upon the parties. . . .
There shall be no cessation of work by strike or lockout un-
less and until said Board fails to reach a unanimous decision.
Under the terms of art. XII of the expired agreement, the agree-
ment remains in full force and effect until May 31, 1987:
and shall continue in force from year-to-year thereafter unless
written notice of reopening is given not unless the (90) days
prior to the expiration date. In the event such notice of reopen-
ing is served, this Agreement shall continue in force and effect
until conferences relating thereto have been terminated by either
party, provided, however, that the contract expiration date con-
tained in this section shall not be effective in the event pro-
ceedings under Article X, Section 8 are not completed prior to
that date. In that event, this Agreement shall continue in full
force and effect until modified by Order of the National Joint
Adjustment Board or until the procedures under Article X, Sec-
tion 8 have been otherwise completed. [Emphasis added.]
prentice program established under the collective-bargaining
agreement between the Union and Illowa (Tr. 375); and, of
the three employees, only Ron Hultz had been referred from
the union hiring hall (Tr. 376). In any event, the Union never
filed a petition for certification among Neyens’ employees;
there had never been a card check relating to their union
membership; and the Union had never demanded recognition
as majority representative from Neyens at any time com-
mencing on or about October 3, 1985.5
With the termination date of the 1985–1987 Illowa-Local
91 agreement being May 31, 1987, Neyens, on January 14,
1987, sent a letter (Jt. Exh. 5) to Illowa in which he with-
drew any bargaining rights Neyens assigned to Illowa regard-
ing the negotiation of collective-bargaining agreements.6
A month later, by letter dated February 13, 1987 (Jt. Exh.
6), Robert Borders reminded Local 91 that Neyens had with-
drawn from Illowa and for a number of years had bargained
with the Union on an individual employer basis.7 In par-
ticular, Neyens notified the Union that it would continue to
bargain individually for future collective-bargaining agree-
ments and, pursuant to the expiring (1985–1987) agreement,
was notifying the Union of its intent to terminate that agree-
ment effective at its expiration on May 31, 1987. Neyens
also notified the Union that it intended to make substantial
changes in its employees’ terms and conditions of employ-
ment and desired to begin negotiations regarding such
changes (Jt. Exh. 7). These changes included the elimination
of the fringe benefits package (pension, annuity, health and
welfare, etc.); a different wage rate system; different starting
hours, elimination of travel pay, etc.
The Union and Neyens thereafter had three collective-bar-
gaining sessions on April 10, April 28, and May 18, 1987,
but the parties failed to reach agreement on a further con-
tract. By letter dated May 18, 1987 (Jt. Exh. 11), Robert
Borders notified the Union that it would not renew the
‘‘prehire agreement’’ after May 31, 1987.
By telegram of June 1, 1987, the Union notified Illowa
and Neyens Refrigeration that, pursuant to article X, section
8 of the expired collective-bargaining agreement, the Union
was requesting a hearing before the National Joint Adjust-
ment Board (NJAB) concerning renewal of the collective-
bargaining agreement (Jt. Exh. 13). On June 8, 1987,
SMACNA notified Neyens Refrigeration that the meeting of
the NJAB would take place in the week of June 22–June 26,
1987, in Kansas City, Missouri (Jt. Exh. 14).8
On June 9, 1987, Neyens notified NJAB and Respondent
(Jt. Exh. 16) that it objected to NJAB attempting to assert
jurisdiction over Neyens with respect to any matter, and that
NJAB was without authority to decide any term or condition
of employment covering Neyens’ employees; that Neyens’
employees were not represented by the Union for the pur-
poses of collective bargaining; that Neyens had timely with-
drawn bargaining rights from Illowa; that under the rules of
the National Labor Relations Act (John Deklewa & Sons,
Inc., 282 NLRB 1375 (1987)), Neyens had successfully repu-
diated the 8(f) relationship with Respondent and that since
May 31, 1987, the Union had no standing as collective-bar-
gaining representative of Neyens’ employees. Finally,
Neyens asserted that since Neyens had withdrawn its convey-
ance of bargaining rights to Illowa and SMACNA, the NJAB
had no jurisdiction over Neyens or the subject matter of the
Local 91 complaint.
On June 12, 1987, Neyens, in an action filed in the United
States District Court for the Central District of Illinois, ap-
plied for an order restraining Respondent from submitting
any matter involving Neyens’ employees to the NJAB (Jt.
Exh. 17). On June 16, 1987, the court denied the application
for the restraining order. On June 18, 1987, Neyens neverthe-
less wrote to both the NJAB and SMACNA, again protesting
NJAB’s assertion of jurisdiction over Neyens Refrigeration
(Jt. Exh. 18). This protest was supported by Neyens again
1146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Referral of the ‘‘grievance’’ of the contract renewal dispute to
NJAB, where Neyens has no representation among the employer-
members, cannot be considered a device in the mechanics of further
collective bargaining. Sheet Metal Workers Local 59 (Employers
Assn. of Roofers), 227 NLRB 520 (1976).
advising NJAB and SMACNA that Neyens had terminated
its collective-bargaining relationship with the Union.
The NJAB met in Kansas City on June 23 to consider the
Union’s request for determination of the wages, hours, and
working conditions of Neyens’ employees. Robert Borders,
on behalf of Neyens, appeared at the proceeding to protest
NJAB’s assertion of jurisdiction and to note the alleged in-
equitable nature of Neyens being subjected to continued rep-
resentation by the Union and to the allegedly economically
unbearable terms of a union collective-bargaining agreement
(Jt. Exh. 19).
The Decisions of NJAB
As above noted, the NJAB is composed equally of mem-
bers of SMACNA (employers) and of Sheet Metal Inter-
national Association and the evidence shows that in 1987
Neyens was a member neither of Illowa nor SMACNA.9 Re-
spondent admits that article X, section 8 of the expired
Illowa agreement provides a procedure for resolving the fail-
ure of the parties to negotiate a renewal of the expired agree-
ment including submission of the dispute or controversy to
the National Joint Adjustment Board (NJAB). NJAB is a dis-
pute adjustment panel and may act on the renewal question
upon notice by either of the parties that their negotiations
were deadlocked. In his June 23 appearance before the
NJAB, Borders objected to being ‘‘dragged’’ before the
NJAB when Neyens allegedly had no representation thereon
(Jt. Exh. 19).
On the next day, June 24, 1987, NJAB nevertheless issued
two decisions: the first affecting Illowa, the second affecting
Neyens.
(a) The NJAB decision concerning Illowa directed that
Illowa and Local 91 execute a 3-year collective-bargaining
agreement (June 1, 1987, through May 31, 1990) in which
NJAB specified certain contractual changes from the expired
agreement: wage increases; a COLA wage differential based
on workshift; changes in the apprentice program; and a wage
reopener clause. In particular, however, there was no change
with regard to the contract renewal clause, i.e., the ‘‘interest
arbitration’’ clause, in the expired collective-bargaining
agreement (Jt. Exh. 21).
(b) With regard to the separate decision concerning
Neyens Refrigeration, it rejected Neyens’ objection to NJAB
jurisdiction based upon John Deklewa & Sons, supra. It de-
termined, that in view of the breadth of the arbitration provi-
sion in the 1985–1987 contract (art. X, sec. 8), the so-called
expired collective-bargaining agreement had not expired, and
had, indeed, by the terms of the agreement, been specifically
extended (art. XII) to include the proceedings of the NJAB
concerning contract renewal. Therefore, since the ‘‘expired’’
contract continued in existence Neyens’ rejection of an exist-
ing Section 8(f) collective-bargaining agreement, made spe-
cifically unlawful in the Deklewa decision, provided no de-
fense.
NJAB then directed (Jt. Exh. 20) Local 91 and Neyens to
execute an agreement ‘‘identical to the multi-employer agree-
ment which was ordered to be placed into effect between the
Illowa Sheet Metal Contractors and SMWIA Local Union
91.’’ In addition, however, the NJAB added a second para-
graph to its decision and direction:
2. It is not the intent of the NJAB to impose any non-
mandatory subjects on an unwilling party. In the event
either the NLRB or any court of competent jurisdiction
finds that any provision of this agreement imposed is
a non-mandatory subject, that provision will be deleted.
The parties in such event are directed to enter into ne-
gotiations to substitute a mandatory replacement. In the
event the parties cannot agree on a replacement for the
disputed section, the Board [NJAB] retains jurisdiction
to resolve that issue.
On August 18, 1987, Neyens filed an action in the United
States District Court for the Central Division of Illinois seek-
ing vacation of the arbitration award and a permanent injunc-
tion restraining the Union from enforcement of the NJAB de-
cision. Neyens also sought a declaratory judgment affirming
the right of Neyens not to be bound after the expiration of
the terms of the Illowa agreement (1985–1987) because it
was a prehire agreement lawfully repudiated by Neyens.
In response to Neyens’ court action, Respondent filed an
answer and a counterclaim (Jt. Exh. 25). In substance, the
counterclaim prayed for an order binding Neyens to the
NJAB decision, directing that Neyens execute an agreement
the same as the 1987–1990 Illowa agreement.
Finally, on February 8, 1988, the Union filed a Motion for
Summary Judgment on both Neyens’ cause of action and on
its counterclaim (Jt. Exh. 26). In response, on February 15,
1988, Neyens moved to stay the proceedings, particularly the
Union’s Motion for Summary Judgment, asserting that the
issues to be resolved in the instant NLRB proceeding would
have a direct and substantial impact on the court’s determina-
tion of the merits in the district court action (Jt. Exh. 27).
Through the time of the hearing here, the court has not acted
on the Union’s Motion for Summary Judgment or Neyens’
request for a stay; nor have I been thereafter advised of any
court disposition.
Discussion and Conclusions
There is no dispute that on October 3, 1985, Robert Bor-
ders, on behalf of Neyens, signed an agreement to be bound
by the 1985–1987 Illowa agreement and the General Counsel
so concedes (G.C. Br. 3–4 (Jt. Exh. 4)). On January 14,
1987, Borders nevertheless timely informed both Respondent
and Illowa, in writing, that it was withdrawing all bargaining
rights from Illowa and would thereafter bargain separately.
There is no dispute that this withdrawal from Illowa was
‘‘timely’’ (Jt. Exh. 5) and it was so stipulated (Jt. Exh. 28,
par. 7):
From at least this date and thereafter, Neyens was nei-
ther a member of, nor had it assigned its bargaining
rights to SMACNA, Illowa, nor to any constituent of
SMACNA or Illowa.
On February 13, 1987, Neyens notified the Union that it
intended to terminate the expiring collective-bargaining
agreement effective on the expiration date, May 31, 1987 (Jt.
Exh. 28, par. 8). After bargaining separately in April and
1147SHEET METAL WORKERS LOCAL 91 (NEYENS REFRIGERATION)
10 The General Counsel does not allege that Respondent’s recourse
to the Federal court to enforce the NJAB award constitutes unlawful
restraint or coercion within Sec. 8(b)(1)(B). See Sheet Metal Work-
ers Local 59 (Employers Assn. of Roofers), supra at 523 (Member
Fanning, dissenting).
11 However, an employer’s repudiation of an interest arbitration
clause, while perhaps a breach of contract, is not an unfair labor
practice because the clause is a nonmandatory subject of bargaining.
Allied Chemical Workers v. Pittsburgh Plate Glass, 404 U.S. 157,
Continued
May for a new agreement, Borders, on May 18, 1987, noti-
fied the Union that it would not renew the ‘‘Illowa agree-
ment’’ which was about to expire on May 31, 1987 (Jt. Exh.
28; Jt. Exh. 11).
It is also further stipulated that commencing June 1, 1987,
Respondent not only notified Borders that it had requested an
NJAB hearing, but that despite Neyens’ June 9 protest
against the submission to NJAB for lack of jurisdiction,
NJAB did meet (Borders appearing) on June 23 and rendered
its decisions on June 24, 1987. On June 24, 1987, the NJAB
directed Illowa to execute a new 3-year collective-bargaining
agreement containing, inter alia, the interest arbitration
clause, wage raises, and other terms and conditions of em-
ployment relating to Illowa members’ employees. At the
same time, NJAB directed Neyens Refrigeration to execute
and be bound by the Illowa agreement (Jt. Exhs. 20 and 21).
Thereafter, by its counterclaim of September 23, 1987 (Jt.
Exh. 25), and its February 8, 1988 Motion for Summary
Judgment (Jt. Exh. 26), the Union sought to enforce in Fed-
eral district court the NJAB award of June 24, 1987, where-
by Neyens was directed to be bound by the new 3-year
Illowa collective-bargaining agreement with Local 91. Re-
spondent concedes that its June 1, 1987 submission to the
NJAB was pursuant to the ‘‘interest arbitration clause’’ of
the expired 1985–1987 contract and, in particular, article X,
section 8. (‘‘[A]ny controversy or dispute arising out of the
failure of the parties to negotiate a renewal of this agreement
shall be settled as hereinafter provided.’’) (R. Br. 2).
In support of the alleged 8(b)(1)(B) violation, General
Counsel and the Charging Party rely on Sheet Metal Workers
Local 59 (Employers Assn. of Roofers), 227 NLRB 520
(1976);10 and Electrical Workers IBEW Local 194 (Cahn
Electric Co.), 285 NLRB 328 (1987).
In Employers Assn. of Roofers, supra at 521, the Board
said:
One can hardly conceive of a more fundamental right
embodied in our Act than the right of both employees
and employers to bargain collectively through rep-
resentatives of their own choosing. Thus, while it is
clear that the parties may agree to substitute another in-
dividual or entity to resolve disputes associated with the
collective-bargaining process, it is also true that the
right to select one’s own bargaining representative is so
basic and important that its relinquishment will not be
casually imputed.
In the same case, the Board held, in finding a violation of
Section 8(b)(1)(B) of the Act, that the Union’s conduct, in
forcing to impasse, bargaining on the interest arbitration
clause in order to involve that very clause (the same clause
as in the instant case) as a dispute resolution mechanism be-
fore the NJAB, where the employer association was unrepre-
sented, was ‘‘in patent derogation of [the Employer’s] right
to bargain collectively through representatives of its own
choosing.’’
Somewhat closer to the instant facts, the Board held, in
Cahn Electric Co., supra, that the union violated Section
8(b)(1)(B) by coercing an employer, under an interest arbitra-
tion clause, to appear before an interest arbitration panel
where the employer had already timely withdrawn from mul-
tiemployer bargaining and from the multiemployer associa-
tion which served on the dispute resolution panel. The Board
further held, consistent with the administrative law judge’s
decision, that the individuals comprising the panel (other
than union representatives) were representatives of the em-
ployer within the meaning of Section 8(b)(1)(B) of the Act;
and that the union’s submission of the dispute, against the
desire of the employer, unlawfully coerced the employer to
select, as his collective-bargaining representatives, the em-
ployer-members of the panel on which he had no representa-
tion. Further, I agree with General Counsel (G.C. Br. 10)
that, in Cahn Electric, the Board held, that the individual
employer’s timely withdrawal from membership in, and bar-
gaining authority from, the multiemployer association ‘‘effec-
tively abrogated the interest arbitration provisions of the ex-
isting agreement, inasmuch as arbitration can exist only by
mutual consent of the parties.’’ In short, Cahn Electric sup-
ports the conclusion that a multiemployer member’s interest
arbitration obligation terminates upon lawful withdrawal; and
that the union’s submission of the dispute, against the with-
drawn-member’s desire, under the interest arbitration clause,
to a panel on which the former member is unrepresented,
constitutes unlawful coercion within Section 8(b)(1)(B) of
the Act.
Respondent’s Defenses
1. Respondent argues that the mere contract-agreed sub-
mission of the ‘‘interest arbitration’’ dispute to the NJAB,
notwithstanding Neyens’ not having representation thereon,
and over his objection, cannot constitute unlawful restraint or
coercion of Neyens in his selection of his collective-bar-
gaining representative within the meaning of Section
8(b)(1)(B) of the Act. Cahn Electric, if not Employers Assn.
of Roofers, holds to the contrary.
2. Respondent further argues: that whatever the holdings
in Employers Assn. of Roofers and Cahn Electric, those cases
are distinguishable because, in the instant case, Neyens indi-
vidually assented to the 1985 agreement and the General
Counsel’s cited cases are premised upon an employer’s with-
drawal from multiemployer bargaining during the term of the
agreement which required submission of the renewal dispute
to the grievance panel selected by the multiemployer associa-
tion. Respondent submits that the courts and the Board rec-
ognize that interest arbitration clauses are valid and enforce-
able, Employers Assn. of Roofers, supra; Electrical Workers
IBEW Local 367 v. Graham County Electric Co., 121 LRRM
2924 (9th Cir. 1986); and that the Board has never held that
an employer who individually signed an agreement which in-
corporates the specific contract renewal procedure can unilat-
erally abrogate and escape from that procedure.11 Moreover,
1148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
185 (1971); cf. Advice Memo, re Air Systems Engineering, 117
LRRM 1508, 1510 (1984).
12 In Tampa Sheet Metal, the court, citing Nolde Bros. v. Bakery
Workers Local 358, 430 U.S. 243 (1977), and the same contract re-
newal language in art. X, sec. 8—which clause was before the Court
held, that the arbitrator (Joint Board) properly ruled that under the
‘‘expansive language in the arbitration clause’’ [‘‘this agreement
shall remain in force and effect until conferences relating thereto
have been terminated by either party’’], the contract was in force
and bound the parties.
in support of the assertion that even timely withdrawal from
multiemployer bargaining does not vitiate an interest arbitra-
tion obligation, Respondent cites Sheet Metal Workers Local
57 Welfare Fund v. Tampa Sheet Metal Co., 786 F.2d 1459
(11th Cir. 1986), a non-Board case. In that case, Respondent
accurately observes that the Court of Appeals for the Elev-
enth Circuit rejected, per curiam, the argument that timely
withdrawal from a multiemployer bargaining group con-
stituted a withdrawal from the obligation to abide by the in-
terest arbitration clause (the same clause as in the instant
case) negotiated by the multiemployer group. It is apparent,
therefore, that Respondent is correct in asserting that the
court, in a Section 301 suit to confirm the decision of an ar-
bitration panel’s ‘‘interest arbitration’’ award renewing
agreements, has extended the enforceability to timely with-
drawn employers. Tampa Sheet Metal Co., supra. Further,
Respondent, noting the possible inconsistency between Cahn
Electric and Tampa Sheet Metal, would escape the issue by
distinguishing Cahn Electric. According to Respondent,
Cahn Electric it dealt with termination of the interest arbitra-
tion obligation because of an employer’s withdrawal from a
multiemployer association rather than, as in the instant case,
where the employer individually consented ‘‘to an agreement
which incorporates a specific contract renewal procedure’’
(R. Br. 6). It must be noted, however, that the court in
Tampa Sheet Metal, supra at 1461, following NLRB v. Co-
lumbus Printing Pressman, 543 F.2d 1161 (5th Cir. 1976),
permitted enforcement of the interest arbitration award
against the timely withdrawn member only to the extent of
a new contract specifically minus the interest arbitration
clause. According to the court, the fear of perpetually bind-
ing the parties to arbitration makes arbitrated enforcement of
an interest arbitration clause, more than one time, against na-
tional policy.
If the Board’s Cahn Electric rule (termination of interest
arbitration obligation upon timely withdrawal) applies to the
instant facts, however, I am bound thereby notwithstanding,
with due deference, the court’s apparently limited contrary
position in Tampa Sheet Metal.
The short of the matter is that I reject Respondent’s prof-
fered distinction between, on one hand, an individual em-
ployer who binds himself to, and then, upon apparent con-
tract termination, seeks to escape from, a multiemployer
agreement (along with the overall grievance procedure,
which is the fruit of multiemployer bargaining); and, on the
other hand, an employer who, having lawfully withdrawn
from a multiemployer group, seeks to escape from the
group’s interest arbitration mechanism, as in Cahn Electric.
In either case, the employer, after apparent contract termi-
nation, whether a former member or a former consenting in-
dividual, is acting in its individual capacity and not as a
member of the group. In either case, the entire interest arbi-
tration mechanism was a result of multiemployer bargaining
to which the erstwhile member or, as here, the erstwhile con-
senting ‘‘individual employer’’ was bound.
Where, as here, an employer affirmatively and timely, no-
tifying all parties, rejects the use of the interest arbitration
mechanism agreed upon by the multiemployer group, the
holding in Cahn Electric is that the withdrawal from, or the
separation of, the individual employer from the group interest
arbitration provision effectively cancels the interest arbitra-
tion provision as binding on the individual. Indeed, Cahn
Electric dictum declares that even without effective with-
drawal from the multiemployer group, and even prior to con-
tract termination, an employer can abrogate the interest arbi-
tration clause without violating the Act because such a clause
relates to a mere nonmandatory subject of bargaining. More-
over, the decision in Cahn Electric specifically rejects the ar-
gument that the Union was merely seeking to enforce its
rights under the interest arbitration provision which survived
the termination of the agreement.12
Again, the issue is the applicability of the rule in Cahn
Electric. The parties here stipulated that Neyens, on January
14, and February 13, 1987, reaffirmed to Illowa and to the
Union that it had withdrawn its bargaining rights from
Illowa; that it never thereafter assigned such rights to Illowa
or SMACNA, and that it would no longer recognize the
Union after the May 31 contract termination. It is a little late
in the day for Respondent to implicitly now argue, distin-
guishing Cahn Electric, that Neyens’ action of January 14,
1987, ‘‘withdrawing’’ from Illowa, was a nullity because
Neyens had independent standing at all times and did not
withdraw from anything. Thus while I have concluded that
the holding in Cahn Electric is broad enough, under the in-
stant facts, to include an employer, like Neyens, who was not
a withdrawn member of the multiemployer group, it appears
that Respondent treated Neyens as a former member of the
multiemployer group by never challenging his repeated asser-
tion that he had timely withdrawn from Illowa.
I conclude, therefore, that contrary to Respondent’s argu-
ment (R. Br. 6), Neyens individual assent to the 1985 agree-
ment does not distinguish the case from Cahn Electric Co.,
supra. The entire interest arbitration procedure was a product
of multiemployer bargaining. When Neyens ‘‘withdrew’’
from granting its bargaining rights to Illowa on January 14,
1987, it sufficiently came within the holding of Cahn Elec-
tric, supra, relating to former members, to make the unilat-
eral submission by the Union unlawful. As noted by General
Counsel, the Board, in Cahn Electric and Employers Assn.
Roofers, supra, held that, in similar situations, there was stat-
utory restraint and coercion, within the meaning of Section
8(b)(1)(B) of the Act since ‘‘restraint’’ and ‘‘coercion’’ is
not limited to tactics involving violence, intimidation, or eco-
nomic reprisals.
3. Two further observations, I believe, are pertinent, the
matters in subparagraph (a) being not dispositive in view of
the conclusion in subparagraph (b):
(a) Tampa Sheet Metal’s contractual resolution should not
be followed in view of the Board’s contrary statutory policy
in Retail Associates:
I believe the rule in Cahn Electric is not only consistent
with the underlying Retail Associates (120 NLRB 388
(1958)) rationale, see Watson-Rummel Electric Co., 277
1149SHEET METAL WORKERS LOCAL 91 (NEYENS REFRIGERATION)
NLRB 1401 (1985), but that to permit the enforcement of the
interest arbitration clause against a withdrawn member or, as
here, an individual employer formally bound by assent to a
multiemployer agreement, might well disturb the keystone
element of the individual employer’s ‘‘consent’’ necessary to
the foundation of group bargaining. As the court noted in
Carvel Co. v. NLRB, 560 F.2d 1030, 1034–1035 (1st Cir.
1977):
The application of the Retail Associates rule over the
last two decades has given it sufficient precision of for-
mulation to leave action under it unembarassed by un-
certainty and misgivings about possibly vagarious ad-
ministrative applications. No more is necessary to oper-
ate safely in its domain of operation than advertence to
the notice dates in the current bargaining agreement.
Freedom of action is uncontrolled so long as it is un-
equivocal and timely.
With all due deference to the contrary holding in Sheet
Metal Workers Local 57 Welfare Fund v. Tampa Sheet Metal
Co., 786 F.2d 1459 (11th Cir. 1986), cited by Respondent,
the parties’ bargain for interest arbitration is derived from
group bargaining. Employer-members otherwise bound to the
group bargain, postexpiration, of course remain bound to the
interest arbitration provision. But those individual employers
who have lawfully disassociated themselves from the group
bargain should have the statutory Retail Associates benefit
regardless of the group contractual obligation. The court’s
resolution of the contractual interest arbitration problem—
imposing the new group contract on Tampa Sheet Metal
minus the interest arbitration clause, while clearly reasonable,
nevertheless impinges on the individual employer’s statutory
right, under Retail Associates, to escape that very result: to
be free of the group bargain, with or without the group’ s
interest arbitration clause or the fruit of any other group ac-
tion. To hold that the otherwise withdrawn member or indi-
vidual remains bound, nevertheless, under interest arbitration
conflicts with Retail Associates.
(b) Even if the Board should choose to follow Tampa
Sheet Metal, implicitedly thereby overruling Cahn Electric,
the NJAB decision here goes well beyond the court’s posi-
tion:
Lastly, there is the fear of being perpetually bound to arbi-
tration and arbitrated contracts. Sheet Metal Workers Local
59 (Employers Assn. of Roofers), 227 NLRB 520, 521
(1976). Even if Respondent’s distinction—which I have re-
jected—between former group membership (Cahn Electric,
supra) and an employer assenting to the group bargain con-
taining the interest arbitration clause, were tenable, here, the
NJAB decision (for which Respondent is actively pursuing
court enforcement) directs Neyens to execute and be bound
by the Illowa contract with the interest arbitration clause
therein (Jt. Exh. 20). Thus, here, Respondent has obtained,
and is pursuing enforcement of, an agreement with a provi-
sion well beyond that which the court in Sheet Metal Work-
ers Local 57 Welfare Fund v. Tampa Sheet Metal, supra, and
the Board, in NLRB v. Columbus Printing Pressmen, 543
F.2d 1161 (5th Cir. 1976), enfg. 219 NLRB 268 (1975), de-
clare as lawful national policy. In Tampa Sheet Metal, the
court stated (786 F.2d 1459, 1461):
Strong national policy favors arbitration of labor dis-
putes. Nolde Bros. Inc. v. Bakery Workers Local 358,
430 U.S. 243 . . . (1977). This strong national policy
does not, however, allow interest arbitration clauses to
be forced into arbitrated contracts more than one time.
Apparently recognizing that the NJAB decision openly
transgresses the lawful scope of Board and court public pol-
icy (a decision binding nonconsenting individual employers
to arbitrated contracts under an interest arbitration clause
with the new contract itself containing an interest arbitration
clause), the NJAB decision, as above stated, then adds:
2. It is not the intent of the NJAB to impose any
non-mandatory subjects on an unwilling party. In the
event either the NLRB or any court of competent juris-
diction finds that any provision of the agreement im-
posed is a non-mandatory subject, that provision will be
deleted. The parties in such event are directed to enter
into negotiations to substitute a mandatory replacement.
In the event the parties cannot agree on a replacement
for the disputed section, the Board retains jurisdiction
to resolve that issue.
This paragraph imposes on Neyens the obligation to com-
mence, and win, a lawsuit to escape an obligation which the
court, in Sheet Metal Workers Local 57 Welfare Fund v.
Tampa Sheet Metal Co., supra, relied on by Respondent,
states is against national policy. Not only is this interest arbi-
tration clause the imposition of a nonmandatory term which,
as the Board states in Sheet Metal Workers Local 59 (Em-
ployers Assn. of Roofers), supra, 227 NLRB at 521, is a bar-
rier to future negotiations (establishing the perpetual exist-
ence of unlawful arbitration), but, if it does not conclusively
bind Neyens to an Illowa contract containing the prohibited
clause, it imposes an unacceptable burden and drag on
Neyens’ rights under Retail Associates. If, under the court’s
position in Tampa Sheet Metal, supra, as I read it, Neyens,
after disassociating himself from group bargaining, must be
absolutely free, in his new contract, from imposition of a fur-
ther interest arbitration clause, then he should not be ‘‘free’’
only by recourse to successful litigation, which is the re-
course he has under the instant NJAB decision. The burden
of NJAB-directed legal entanglement of Neyens on Neyens’
court and Board right to be ‘‘free’’ from a subsequent inter-
est arbitration device is too heavy to be lawfully supported.
The full extent of the Union’s (NJAB’s) continued interest
arbitration entanglement of Neyens may be observed in what
awaits Neyens if, attempting recourse to the above contract
procedures, as required by the NJAB, decision, his court or
NLRB action is successful: he must nevertheless then bargain
to seek a mandatory replacement for the ousted arbitration
clause and, upon impasse, then again return to the NJAB to
‘‘resolve’’ the issue (whatever that means). Respondent,
through NJAB, thus, has gone far beyond the limit imposed
on individuals under interest arbitration clauses in Tampa
Sheet Metal, supra, its own principal support, i.e., to be free
of an interest arbitration clause in any succeeding contract
imposed under an interest arbitration clause in an ‘‘expired’’
contract. By forcing Neyens to be bound by a contract
against public policy, Respondent is similarly unlawfully re-
1150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 I do not pass on the further question of whether Respondent’s
Federal court enforcement of its NJAB-created contract against
Neyens thus runs afoul of Bill Johnson’s Restaurant v. NLRB, 461
U.S. 731 (1983).
14 In 8(f) cases, the following four Deklewa principles apply, see
Garman Construction Co., 287 NLRB 88 (1987):
(1) a collective-bargaining agreement permitted by Section 8(f)
shall be enforceable through the mechanisms of Section 8(a)(5)
and Section 8(b)(3); (2) such agreements will not bar the proc-
essing of valid petitions filed pursuant to Section 9(c) and Sec-
tion 9(e); (3) in processing such petitions, the appropriate unit
normally will be the single employer’s employees covered by
the agreement; and (4) upon the expiration of such agreements,
the signatory union will enjoy no presumption of majority status,
and either party may repudiate the 8(f) bargaining relationship.
15 In 8(f) contracts, under Deklewa, upon contract expiration, the
Union enjoys no presumption of majority status, and the Union has
the burden to prove that 9(a) relationship. Harris Painting, 286
NLRB 642 (1987).
straining and coercing Neyens within the meaning of Section
8(b)(1)(B).13
The Application of John Deklewa Co., 282 NLRB
1375 (1987)
The General Counsel argues that under Deklewa, Neyens
had the right to repudiate the collective-bargaining relation-
ship with the Union because the agreement was a Section
8(f) agreement and that, at its expiration on May 31, 1987,
Neyens was under no obligation to recognize and bargain
with the Union. This is so, according to General Counsel, be-
cause the Union never achieved the status under Section 9(a)
of the Act as the employees’ majority representative. Re-
spondent counters by arguing that Neyens’ three employees
at the time of expiration were indeed union members; and,
alternatively, even if they were not, Deklewa is not applica-
ble because the contract had not expired on May 31 even
though some of its terms would lead to that conclusion. In
particular, Respondent points to the inclusion in the collec-
tive-bargaining agreement of article XII, section 1 (which
provides that the contract remains in effect beyond its expira-
tion date where proceedings pursuant to art. X, sec. 8, are
not completed prior to the expiration date). Thus, Respondent
would argue that here, the NJAB proceedings were pro-
ceedings under article X, section 8, and therefore the con-
tract, by its terms, was extended beyond May 31 and that
Neyens’ repudiation of the agreement, contrary to the
Deklewa rule, was the unlawful repudiation of an existing
Section 8(f) agreement rather than the repudiation after expi-
ration.14 Cf. Sheet Metal Workers Local 57 v. Tampa Sheet
Metal Co., supra, 786 F.2d at 1461. While I find that the
Deklewa issue is immaterial to the disposition of this case,
I agree with General Counsel (G.C. Br. 16) that a Neyens
violation of Section 8(a)(5) in refusing to bargain, even as-
suming arguendo that, as Respondent asserts, Neyens unlaw-
fully repudiated a Section 9(a) relationship under Deklewa15
is not a defense to the Union’s misconduct under Section
8(b)(1)(B) in forcing the unwilling Neyens before an arbitra-
tion panel in which he is not represented. S. Freedman Elec-
tric, 256 NLRB 432 (1981), enfd. without published opinion
(2d Cir. 1981), petition for rehearing denied December 21,
1981. Thus, even if Neyens repudiated a Section 9(a) collec-
tive-bargaining relationship, and even if this were not lawful,
this would not serve as a defense to Respondent’s own un-
lawful conduct under Section 8(b)(1)(B).
CONCLUSIONS OF LAW
1. Robert Borders, d/b/a Neyens Refrigeration Co.
(Neyens), is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Sheet Metal Workers Local Union No. 91, affiliated
with Sheet Metal Workers International Association, AFL–
CIO (the Union) is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Union unlawfully restrained and coerced Neyens, in
violation of Section 8(b)(1)(B) of the Act, by causing Neyens
to select the National Joint Adjustment Board (NJAB) as its
collective-bargaining representative for settling contract dis-
putes after the expiration of Neyens’ obligation under the
collective-bargaining agreement to submit to NJAB jurisdic-
tion and after Neyens had rejected the NJAB as its collec-
tive-bargaining representative, and at a time when Neyens
was not represented on NJAB by any members of its own
choosing.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]