Tampa Sheet Metal Co., Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1988

288 N.L.R.B. 322 (N.L.R.B. 1988)

322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Tampa Sheet Metal Company, Inc. and Sheet Metal
Workers' International Association, Local
Union No. 57. Case 12-CA-10932
March 31, 1988
DECISION AND ORDER
CHAIRMAN STEPHENS AND TylEMBERS BABSON
AND CRACRAFT
On December 20, 1984, Administrative Law
Judge Peter E. Donnelly issued the attached deci-
sion. The Charging Party' and the General Coun-
sel each filed exceptions and a supporting brief, and
the Respondent filed a brief in support of the
judge's decision as well as an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, 2 findings, and
conclusions only to the extent consistent herewith.
The complaint alleged that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by refusing
to abide by a collective-bargaining agreement the
National Joint Adjustment Board (NJAB) imposed
pursuant to a contractual interest arbitration provi-
sion, and by unilaterally ceasing payments to cer-
tain benefit funds and ceasing dues checkoff.
The judge dismissed the complaint, finding, inter
alia, that because interest arbitration is not a man-
datory subject of bargaining, 3 the interest arbitra-
tion provisions of the expired contract did not sur-
vive the contract's expiration. The judge found
that the Respondent was accordingly free to reject
interest arbitration as a union proposal in individual
contract negotiations. The judge reasoned, there-
fore, that the contract resulting from the Union's
invoking, over the Respondent's objection, the in-
terest arbitration provisions of the expired
The Respondent filed a motion to strike the Charging Party's excep-
tions on the ground that they fail to comply with Sec 102 46(b) of the
Board's Rules and Regulations in that they do not identify the part of the
judge's decision to which objection is made and do not designate page
citations to the record The Charging Party filed a response. We con-
clude that the Charging Party's exceptions sufficiently identify the por-
tions of the judge's decision the Charging Party claims are erroneous
See, e.g , Fiber Industries, 267 NLRB 840 fn. 2 (1984), Giddings & Lewis,
Inc., 240 NLRB 441 fn 2 (1979) Accordingly, we deny the Respondent's
motion to strike exceptions
2 The judge inadvertently failed to rule on the General Counsel's
motion to correct the transcript As the motion is unopposed, we grant
the General Counsel's motion Accordingly, the transcript is corrected in
certain respects.
3 See Sheet Metal Workers Local 59 (Employers Assn ), 227 NLRB 520
(1976) (cited by the judge); Electrical Workers IBEW Local 135 (LaCrosse
Electrical), 271 NLRB 250 (1984) (not cited by the judge).
SMACNA4 contract did not bind the Respond-
ent.6
Regarding the unilateral discontinuance of pay-
ments to the benefit funds and cessation of dues
checkoff, the judge found the parties reached an
impasse in their negotiations as of July 1, 6 when
the Union invoked the interest arbitration provi-
sions of the expired SMACNA contract. The judge
further found that bargaining under such circum-
stances would be futile and that therefore the Re-
spondent did not violate Section 8(a)(5) and (1) of
the Act by discontinuing fund payments and dues
checkoff, despite the fact that these changes were
not contemplated by the Respondent's last negoti-
ating proposa1.7
After the judge's decision issued and exceptions
and briefs were filed, the General Counsel filed a
motion to partially withdraw the complaint. The
General Counsel moved to withdraw the allega-
tions concerning the Respondent's refusal to abide
by the NJAB-imposed contract because she had re-
evaluated the issue of interest arbitration provisions
and their impact on Section 8(a)(5) and Section
8(b)(3). In her motion, the General Counsel stated
that, contrary to the complaint allegations, her po-
sition is that when the Respondent timely with-
drew from the multiemployer bargaining unit in
March 1983, it was no longer bound by the interest
arbitration provision in the 1981-1983 multiemploy-
er bargaining agreement. The General Counsel
argues that the interest arbitration provision sets
the procedure for future bargaining in a unit to
which the Respondent had become a stranger. The
General Counsel also moved, in the event the
Board denied her motion to partially withdraw
complaint, to withdraw her exceptions on this
4 The Respondent had been a member of SMACNA, Sheet Metal and
Air Conditioning Contractors National Association, Inc., Florida West
Coast Chapter, a contractors' association and multiemployer bargaining
group, and had authorized SMACNA to negotiate contracts with the
Union on its behalf The last contract was effective July 19, 1981,
through June 30, 1983 The Respondent timely withdrew its bargaining
authorization from SMACNA March 28, 1983, and notified the Union
that it would thereafter bargain on an individual basis, as more fully de-
tailed below.
5 The judge's analysis appears to confuse the Union's proposal to in-
clude an interest arbitration clause in the new contract with the parties'
disagreement about whether the interest arbitration clause in the 1981-
1983 contiact should be used to resolve the ongoing negotiations The
conduct alleged to be unlawful here involves the Respondent's refusal to
submit the ongoing negotiations to interest arbitration under the old mul-
tiemployer contract The issue of whether the Union unlawfully insisted
to impasse on an Interest arbitration clause in the new contract is not
before us in this case. Because of this confusion, the judge's rationale for
dismissal is unclear
6 All dates are in 1983 except as otherwise indicated.
7 As a general rule, after good-faith bargaining to impasse, an employ-
er does not violate the Act by making unilateral changes that are reason-
ably comprehended within its preimpasse proposals Taft Broadcasting
Co. 163 NLRB 475, 478 (1967), affd 395 F.2d 622 (DC. Cir. 1968).
288 NLRB No. 43
TAMPA SHEET METAL CO. 323
issue. The Charging Party strongly opposes 'the
motion.
We have considered the General Counsel's
motion, and have decided to deny it. Under Sec-
tion 102.17 of the Board's Rules and Regulations,
after a case has been transferred to the Board, the
Board may, upon the General Counsel's motion,
allow a complaint to be amended. The Board,
however, has discretion to deny such motions. The
case raises significant legal issues. The matter was
fully litigated, exceptions and briefs have been
filed, and the Charging Party vigorously opposes
withdrawal. We believe that, under the circum-
stances of this case, the interest of justice would be
better served by a decision on the merits. See, e.g.,
Sheet Metal Workers Local 263 (Sheet Metal Con-'
tractors), 272 NLRB 43, 44 (1984), and cases cited
therein.
'We grant the General Counsel's alternative
motion to withdraw her exceptions concerning this
aspect of the case, but observe that the interest ar-
bitration issue is not mooted, as the Charging Party
has excepted to the judge's resolution of this ques-
tion.
We shall dismiss the complaint allegation that
the Respondent unlawfully refused to abide by the
NJAB award. In doing so, we rely only on the ra-
tionale stated in section A below. For the reasons
stated in section B below, we reverse the judge's
dismissal of the allegation that the Respondent
made unlawful unilateral changes.
The following statement or facts is based on that
set forth in the judge's decision, as well as other
undisputed record evidence.
'The SMACNA contract, which expired June 30,
1983, provided, in 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 dis-
pute 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 opin-
ion of the Local Union or the Local Contrac-
tors' Association, or both, notice to that effect
shall be given to the office of the General
President of Sheet Metal Workers' Internation-
al Association and the national office of Sheet
Metal and Air Conditioning Contractors' Na-
tional Association, Inc. . . .
The dispute shall be submitted to the Na-
tional 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.
The NJAB submittal procedural rules state, inter
alia:
If negotiations for a new agreement have
not been successfully concluded by the 45th
day prior to the expiration of the current
agreement and a new agreement has not been
negotiated within ten (10) days thereafter, they
shall for the purpose of this procedure, be con-
sidered "deadlocked" within the meaning of
Article X, Section 8 and the services of the
National Joint Adjustment Board shall be in-
voked. Notice thereof shall be given by either
party or both to the office of the General
President of the Sheet Metal Workers' Interna-
tional Association and to the National Office
of the Sheet Metal & Air Conditioning Con-
tractors' National Association on forms to be
furnished by either of such associations.
By letter dated March 25, the Union informed
SMACNA and the Respondent that it wanted to
negotiate modifications in the 1981-1983 agree-
ment. On March 28 the Respondent's president,
Jiretz, wrote to the Union's business manager, Sali-
nas, that he no longer desired to negotiate with the
Union as part of SMACNA, and that the Respond-
ent did not want to keep the current contract in
force on a year-to-year basis. The parties stipulated
that the Respondent's withdrawal from multiem-
ployer bargaining was proper and timely.
On May 27, before bargaining began, Union
Business Manager Salinas, pursuant to the NJAB
procedural rules, notified his International general
president that negotiations had not been completed,
and requested NJAB hearing dates. There is no
evidence, however, that Salinas informed the Re-
spondent that he had done so.
The Respondent and the Union conducted three
bargaining sessions. At the May , 31 meeting, the
union representatives proposed the "Standard
Form of Union Agreement." Ten sections were
"highlighted" in yellow for modification. The
union representatives did not suggest any alteration
of article X, -section 8. The Respondent's counsel,
Cusack, stated that because the nature of the Re-
spondent's operations had changed, the Standard
Form of Union Agreement was no longer appro-
priate. The Respondent's representatives, Cusack
and Jiretz, made no specific proposals, but indicat-
ed that they wanted to waive discussion of eco-
nomic proposals and resolve the work rules.
324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On June 15, the union representatives submitted
a "targeted jobs" proposal 8 and made economic
proposals. Cusack orally submitted a management-
rights provision. Cusack also stated that he be-
lieved the Respondent was not bound by the
NJAB dispute resolution procedures under article
X, section 8 of the current contract.
By letter dated June 27, Jiretz, the Respondent's
president, resigned from the board of trustees for
the union welfare and vacation funds. Jiretz also
notified SMACNA that the Respondent was re-
signing its SMACNA membership.
On June 29, the union representatives made
other proposals, and withdrew the Union's "Build-
ing Fund" proposa1. 8 Cusack again took the posi=
tion that the Respondent was not bound by the
NJAI3 interest arbitration procedures in the expir-
ing contract. Cusack told the union representatives
that he would prepare written proposals by June
30 or July 1.
On July 1, Cusack notified Salinas that he had
prepared a written proposal and asked if it would
be all right if he put it in the mail. Salinas agreed.
Salinas received the proposal July 5. The proposal
provided for payment to various funds," as in the
expired SMACNA contract, as well as union dues,
vacation fund, and political action fund checkoffs.
By form letter dated July 1, however, and
mailed to the Respondent July 2, Salinas stated that
he regarded negotiations as "deadlocked" and was
submitting the dispute to NJAB for resolution.
By July 5 telegram, SMACNA notified the Re-
spondent that the NJA13 would hear the dispute
between the Union and the Respondent at its July
11 meeting in Denver.
On July 7, Salinas hand-delivered to Jiretz an
"analysis" of the Respondent's proposal, as com-
pared with the Union's proposals.
On July 8, a union representative hand-delivered
a letter from Salinas to Jiretz (who did not person-
ally receive it until July 11), stating in part:
In accordance with the procedural rules of
the National Joint Adjustment Board and in
conjunction with the proceedings outlined in
Article X, Section 8 of our existing agreement,
we are hereby advising that SMWIA - L.U.
#57 is available to continue contract negotia-
tions in order to achieve an agreement prior to
This proposal allowed for lower journeyman wage rates for certain
projects in order to enhance bidding and employment opportunities and
obtain or recover work not presently being performed by an employer.
9 This proposal concerned the creation of a fund to provide for ap-
prenticeship training, union offices, and a meeting hall
" The proposal provided for contributions to an industry fund, nation-
al training fund, local training (apprenticeship) trust fund, and health,
welfare, and pension fund.
the appropriate submissions being made to the
N.J.A.B.
Please contact Harold J. Salinas at the union
office at 813/229-1052 and/or the Fairmont
Hotel, 1750 Welton Street, Denver, Colorado
whereby a representative of our union will be
made available to continue our contract dis-
cussions.
Salinas presented the case to the NJAB on July
11. The Respondent did not appear. Salinas testi-
fied that he did not recall orally notifying the
NJAB that the Respondent had withdrawn from
SMACNA, but he stated that this fact appeared in
the written submissions the Union made to NJAB.
The submission describes the dispute as being be-
tween the Respondent and Local 57; rather than
between SMACNA and Local 57. The Internation-
al Union and SMACNA select the NJAB mem-
bers, and the Respondent was not represented on
the NJAB.
By letter dated July 13, Cusack responded to Sa-
linas' July 8 letter, as follows:
Reference is made to your form letter of
July 8, 1983.
As you are aware, the undersigned repre-
sents Tampa Sheet Metal. It is our understand-
ing that this letter was hand delivered on
Friday, July 8, 1983 in the latter part of the
afternoon. Mr. Jiretz was not in the office and
did not have the opportunity to review it until
July 11, 1983.-
We view this letter as a continuation of your
attempts to compel my client to act as if it
were a member of the employer association.
As you are aware, we withdrew bargaining
rights from the association on March 28, 1983,
and negotiated with you individually thereaf-
ter. , During the course of negotiations, you
constantly made reference to your belief that
the Sheet Metal and Air Conditioning Con-
tractors' National Association had the power
to impose a contract upon us. We consistently
stated our position that we will not be forced
into a procedure whereby we would be denied
our statutory right to act as our own bargain-
ing representative.
On Monday, July 11, 1983, we were offered
the opportunity to go to the Fairmont Hotel,
in Denver', Colorado, "whereby a representa-
tive of our union will be made available to
continue our contract discussions."
The referenced letter is in direct variance
with your position stated on July 1, 1983,
when you advised that you were of the "opin-
TAMPA SHEET METAL CO. 325
ion that the negotiations for a renewal agree-
ment are deadlocked."
You may rest assured that any negotiations
that are conducted by Tampa Sheet Metal will
be at a time and place convenient to both par-
ties and with a bargaining representative of
our own choosing. We view your eleventh-
hour notice to meet you in Denver to be an
outrageous form of coercion.
On July 15, the NJAB directed the Respondent
to execute essentially a standard form, 3-year
SM ACNA contract, with article X, section 8 delet-
ed.
On July 19, Salinas requested the Respondent to
abide by the July 15 NJAB award, but by letter
dated July 21, Jiretz refused. The letter stated, inter
alia:
We wish to restate our position that the
entire course of your conduct during negotia-
tions reflected a calculated design to go
beyond impasse and attempt to invoke the pro-
cedures of the National Joint Adjustment
Board. This effectively ensured certain con-
tract provisions would be determined by a
panel on which we have no representation.
We hold this to be in patent derogation of our
right to bargain collectively through represent-
atives of our own choosing.
I have no intention of adhering to the en-
closed decision, and I take the position that
the collective bargaining agreement with your
organization terminated on June 30, 1983.
We reiterate our position of a willingness to
negotiate with you, your union, or any union
that can demonstrate that it represents the ma-
jority of the employees at Tampa Sheet Metal
Company.
By letter to Cusack dated August 9, the Union's
attorney, Kelly, stated, inter allia:
With respect to Tampa Sheet Metal, I attempt-
ed to reach you [Respondent's attorney] by
telephone today but was advised that you
were out of town. Harold Salinas received a
call from John Jiretz regarding a proposed
meeting scheduled for tomorrow to be attend-
ed by Mr. Salinas, John Jiretz and you. Harold
has notified Mr. Jiretz that he cannot attend
since we have matters pending before the Na-
tional Labor Relations Board requiring Har-
old's presence. To the extent that the meeting
relates to the current collective bargaining
agreement, I must remind you of our position.
As far as Local 57 is concerned, there is in
effect a collective ,bargaining agreement, be-
tween it and Tampa Sheet Metal, Inc. If there
are specific provisions of the agreement which
Tampa Sheet Metal does not understand, or if
there is some difficulty in administering the
agreement, then Local 57 will be glad to dis-
cuss it with your client. If you are attempting
to negotiate substantive terms and conditions
of employment, however, Local 57 must de-
cline any such meeting. Given the fact that
there exists a collective bargaining agreement,
Local 57 is not obligated to engage in contin-
ued negotiations.
Since July 5, the Respondent has forwarded no
money to the union trust funds and pension and
fringe benefit funds. From July 1 to September 7,
the Respondent continued deducting from employ-
ees' pay various assessments the expired agreement
required, but did not forward the money to the
trust funds or the Union. On September 7, the Re-
spondent stopped the deductions and notified the
Union, the trust funds, and the employees of its
cessation of deductions from employees' pay and
its refusal to contribute to the funds. Since July 5,
the Respondent has stopped contributions to the
local training trust fund, the national training fund,
pension fund, health and welfare fund, and SASMI
(not further identified). The Respondent has also
stopped deducting vacation fund and political
action fund contributions and union dues from em-
ployees' pay.
Conclusions
A. Refusal to Abide by NIAB Award
The issue is whether the Respondent violated
Section 8(a)(5) and (1) of the Act by refusing to
abide by the collective-bargaining agreement im-
posed by the NJAB pursuant to the expiring agree-
ment's interest arbitration provision. We agree with
the judge that the Respondent did not violate the
Act as alleged.
It is well settled that interest arbitration clauses
are ncmmandatory subjects of bargaining." In
Chemical Workers v. Pittsburgh Plate Glass, 404 U.S.
157 (1971), the Supreme Court held that a unilater-
al modification of a contract term is "a prohibited
unfair labor practice only when it changes a term
that is a mandatory rather than a permissive subject
of bargaining." 404 U.S. at 185. The Court further
held that the "remedy for a unilateral mid-term
modification to a permissive term lies in an action
for breach of contract . . . not in an unfair-labor-
practice proceeding." 404 U.S. at 188.
' 1 NLRB v. Columbus Printing Pressmen, 543 F.2d 1161, 1166 (5th Ctr.
1976); Electrical Workers IBEW Local 135 (LaCrosse Electrical), 271
NLRB 250, 251(1984); Sheet Metal Workers Local 59 (Employers Assn.),
227 NLRB 520 (1976).
326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Because interest arbitration is a nonmandatory
subject of bargaining, the Respondent's refusal to
abide by the contract imposed by the NJAB
amounted to a repudiation of a nonmandatory term
in the expiring collective-bargaining agreement.
Under Pittsburgh Glass, supra, such conduct is not
a violation of Section 8(a)(5) and (1) of the Act.12
The remedy for such a repudiation lies not with
the Board, but with the courts in a breach of con-
tract proceeding. Indeed, the Union and the trust
funds here have already obtained court decisions
ordering remedies for the Respondent's conduct."
Accordingly, we conclude that the Respondent did
not violate Section 8(a)(5) and (1) of the Act by re-
fusing to abide by the contract imposed by the
NJAB. 1 4
B. Unilateral Discontinuance of Fund Payments
and Dues-Checkoff Cessation
Contrary to the judge, we find that the Respond-
ent violated Section 8(a)(5) and (1) of the Act by
unilaterally discontinuing payments to employee
benefit funds.15
12 Cf Sea Bay Manor Home, 253 NLRB 739 (1980), enfd. mem 685
F 2d 425 (2d Cir 1982). In that case the Board held that the employer
violated Sec 8(a)(5) and (I) of the Act by refusing to abide by a stipula-
tion agreement to submit the contract under negotiation to mterest arbi-
tration After considerable bargaining over mandatory subjects the parties
voluntarily agreed to resolve their current differences by interest arbitra-
tion Under the particular circumstances presented, the Board held that
the stipulation agreement to submit to interest arbitration was tantamount
to a collective-bargaining agreement between the parties The agreement
to arbitrate was so intertwined with the mandatory terms and conditions
for the contract being negotiated as to take on the characteristics of the
mandatory subjects themselves Sea Bay Manor is distinguishable from the
instant case because there the agreement to interest arbitrate was made
during the negotiations for the contract in dispute and was in effect a
substitute for further negotiations over mandatory subjects of bargammg
It was designed to establish all the terms and conditions of employment
for the contract then under negotiation Here the agreement to submit to
interest arbitration was for a future contract and was not a substitute for
further negotiations over mandatory subjects of bargaining for the con-
tract then under discussion. The agreement when made did not have an
immediate effect on the employees' terms and conditions of employment.
Under such circumstances, unlike Sea Bay, we cannot find here that the
agreement to interest arbitrate took on the characteristics of the mandato-
ry subjects themselves. Thus, we find that because the interest arbitration
clause in the expiring multiemployer agreement was a nonmandatory sub-
ject of bargaining, the Respondent was free to repudiate the interest arbi-
tration clause without violating Sec 8(a)(5) and (1) of the Act.
13 Sheet Metal Workers Local 57 Welfare Fund v. Tampa Sheet Metal,
786 F 2d 1459 (11th Cir 1986), Sheet Metal Workers Local 57 v. Tampa
Sheet Metal, 122 LRRM 3382 (M.D. Fla. 1986)
14 Because we conclude that the Respondent did not violate Sec.
8(a)(5) and (1) on the ground that the interest arbitration clause in ques-
tion is a nonmandatory subject of bargaining, we find it unnecessary to
address the General Counsel's argument that the timely withdrawal from
multiemployer bargaining terminated the Respondent's obligation under
the Act to abide by the interest arbitration clause in the expiring multiem-
ployer agreement
15 The Respondent did not violate Sec. 8(a)(5) of the Act by ceasing
union dues checkoff An employer's duty to check off union dues is ex-
tinguished upon the expiration of the collective-bargaining agreement
Robbins Door & Sash Go, 260 NLRB 659 (1982) Here, because the con-
tract expired June 30, the Respondent's discontinuance of umon dues
checkoff was not unlawful.
Section 8(a)(5) of the Act generally prohibits
unilateral changes in the terms and conditions of
employment in an expired collective-bargaining
agreement until the parties negotiate a new agree-
ment or bargain in good faith to impasse. NLRB v.
Carilli, 648 F.2d 1206, 1214 (9th Cir. 1981). Fol-
lowing impasse, an employer does not violate the
Act by making unilateral changes that are reason-
ably comprehended within its preimpasse propos-
als. Taft Broadcasting Co., 163 NLRB 475, 478
(1967), affd. 395 F.2d 622 (D.C. Cir. 1968). Under
limited circumstances the Board has stated that it
would permit unilateral changes even in the ab-
sence of impasse. When, on expiration of a collec-
tive-bargaining agreement, the employer has dili-
gently sought bargaining and the union has avoided
or delayed bargaining, the employer may unilater-
ally implement the proposals without first bargain-
ing to impasse. However, the Board has specifical-
ly stated that the employer's changes must be con-
sistent with the employer's previous proposal to
the union. Stone Boat Yard, 264 NLRB 981, 982
(1983), enfd. 715 F.2d 441 (9th Cir. 1983), cert.
denied 466 U.S. 937 (1984); AAA Motor Lines, 215
NLRB 793 (1974); M&M Contractors, 262 NLRB
1472, 1476-1477 (1982), affd. mem. 113 LRRM
3360 (9th Cir. 1983). In this regard, the Ninth Cir-
cuit noted in Stone Boat Yard that an express notice
requirement is harmonious with policy consider-
ations on which the Act is based. Disclosure of
proposed changes facilitates open discussion of the
specific changes and gives the union notice of ex-
actly what might be lost if it waives the opportuni-
ty to bargain. 715 F.2d at 445. See also NLRB v.
Auto Fast Freight, 793 F.2d 1126, 1131 (9th Cir.
1986); Constructive Sheet Metal, 283 NLRB 1069
(1987); PRC Recording Co., 280 NLRB 615 (1986),
enfd. 836 F.2d 289 (7th Cir. 1987); Emsing's Super-
market, 284 NLRB 302 (1987).
In the instant case, the Respondent's July 1, 1983
proposal included a continuation of contributions
to the Union's pension and welfare funds. The par-
ties stipulated that on July 5, 4 days after transmit-
tal of the Respondent's proposal, which included
continuation of fund contributions, the Respondent
ceased making contributions to these funds. The
Respondent did not notify the Union until Septem-
ber 7 of its refusal to continue fund payments.
The judge found that because of the Union's in-
sistence that the Respondent abide by the NJAB
award and its refusal to negotiate, any further at-
tempt by the Respondent to bargain would have
been futile. Therefore, the judge reasoned, the Re-
spondent was justified in discontinuing the fund
payments, despite the fact that the changes went
beyond the Respondent's last proposal. This finding
TAMPA SHEET METAL CO. 327
is clearly contrary to the above-cited Board and
court precedent which requires that the union be
given notice of the proposed changes before imple-
mentation, even when the union has avoided bar-
gaining. 16
In the instant case, the Respondent not only
failed to notify the Union of its proposed discon-
tinuance of the fund payments before implementa-
tion, but it actually proposed the continuation of
the funds in its July 1 proposal. Contrary to the
judge, we do not believe that the Union's insistence
in taking the dispute to the NJAB pursuant to an
interest arbitration clause in an expiring collective-
bargaining agreement should justify unilateral
changes which not only go beyond any proposal
ever given to the Union, but actually conflict with
that proposal. Because the Respondent's unilateral
changes in fund payments were never proposed to
the Union before implementation, we find that they
violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LA W
1. By unilaterally discontinuing payments to
union trust funds and pension and fringe benefit
funds, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7)
of the Act.
2. The Respondent has not otherwise engaged in
unfair labor practices.
REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order it
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act.
We shall order the Respondent to commence
making the required payments to the union trust
funds and pension and fringe benefit funds and to
transmit to the funds the contributions it has failed
to make since its unlawful cessation of payments."
15 In AAA Motor Lines, supra, the Board, m finding the unilateral
changes to be permissible, specifically relied on the fact that the employ-
er had given the union notice of the proposed changes 2-1/2 months
before the changes were implemented and the employer implemented
only those changes that had already been proposed to the union. Similar-
ly, in MciM Contractors, the changes implemented were consistent with
those proposed to the union, In Stone Boat Yard, the Board, in finding a
violation of Sec. 8(a)(5), relied on the fact that the implemented changes
were not consistent with any previous proposal made to the union
" Because the provisions of employee benefit fund agreements are
variable and complex, the Board does not provide for the addition of a
fixed rate of interest on unlawfully withheld fund payments at the adjuch-
catory stage of a proceeding. We leave to the compliance stage the ques-
tion whether the Respondent must pay any additional amounts into the
benefit funds in order to satisfy our "make-whole" remedy. Depending
on the circumstances of each case, such additional amounts may be deter-
mined by reference to provisions in the documents governing the funds at
issue and, where there are no governing provisions, by evidence of any
We shall also order the Respondent to make whole
unit employees for any loss of benefits caused by
its failure to make the required fund payments and
to reimburse employees for any expenses ensuing
from the Respondent's unlawful failure to make
such payments as set forth in Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d
940 (9th Cir. 1981). Interest on such expenses shall
be computed in the manner prescribed in New Ho-
rizons for the Retarded."
ORDER
The National Labor Relations Board orders that
the Respondent, Tampa Sheet Metal Company,
Inc., Tampa, Florida, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to make required pay-
ments on behalf of its unit employees to union trust
funds and pension and fringe benefit funds.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Make required payments on behalf of its unit
employees to the union trust funds and pension and
fringe benefit funds.
(b) Pay into the funds those contributions it
failed to make as a result of its unlawful unilateral
discontinuance of fund payments, in the manner set
forth in the remedy section of this Decision and
Order.
(c) Make whole unit employees for any losses or
expenses they may have suffered as a result of the
unilateral discontinuance of fund payments, in the
manner set forth in the remedy section of this De-
cision and Order.
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
losses directly attributable to the unlawful withholding, which might in-
clude the loss of return on investment of the portion of funds withheld,
additional administrative costs, etc, but not collateral losses. Merry-
weather Optical Co., 240 NLRB 1213, 1216 In 7 (1979).
is In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U.S,C. § 6621. Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 U.S.0 6621), shall be computed in accordance with
Florida Steel Carp, 231 NLRB 651 (1977).
328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(e) Post at its facility in Tampa, Florida, copies
of the attached notice marked "Appendix."19
Copies of the notice, on forms provided by the Re-
gional Director for Region 12, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
19 If 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 Nation-
al 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."
Mark F. Kelly, Esq., of Tampa, Florida, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge. The
charge was filed on October 27, 1983, by Sheet Metal
Workers International Association, Local Union No. 57
(Union or Local 57). 1 A complaint thereon issued on
December 20, 1983, and an amendment to the complaint
issued on July 6, 1984, alleging that Tampa Sheet Metal
Company, Inc. (Employer or Respondent) violated Sec-
tion 8(a)(1) and (5) of the Act by ceasing payments to
certain funds; ceasing a union dues checkoff, and refus-
ing to abide by a collective-bargaining agreement im-
posed by a contractual interest arbitration provision. An-
swers thereto were timely filed by Respondent. A hear-
ing was held before me at Tampa, Florida, on July 11,
1984. Briefs have been timely filed by the General Coun-
sel and Respondent that have been considered
FINDINGS OF FACT
APPENDIX
I. THE EMPLOYER
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT fail and refuse to make required
payments on behalf of our unit employees to union
trust funds and pension and fringe benefit funds.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make required payments on behalf of
our unit employees to the union trust funds and
pension and fringe benefit funds.
WE WILL pay into the funds those contributions
we failed to make as a result of our unlawful uni-
lateral discontinuance of fund payments.
WE WILL make whole unit employees for any
losses or expenses they may have suffered as a
result of our unilateral discontinuance of fund pay-
ments, with interest.
TAMPA SHEET METAL COMPANY,
INC.
Margaret J. Diaz, Esq., for the General Counsel.
James J. Cusack, Esq. and John Robertson Esq., of
Tampa, Florida, for the Respondent.
The Employer is a Florida corporation with an office
and place of business in Tampa, Florida, where it is en-
gaged in the manufacture of sheet metal products.
During the past 12 months, the Employer, in the course
and conduct of its operations, sold and shipped from its
Tampa, Florida facility produce, goods, and materials
valued in excess of $50,000 directly to points located out-
side the State of Florida. The complaint alleges, the Re-
spondent admits, and I find that Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint, as amended, alleges, the Respondent
has stipulated, and I find, that Local 57 and Local 15 are
labor organizations within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The basic facts are not in issue and are covered by a
record stipulation entered into by the parties on July 11,
1984 (Jt. Exh 1) J L. Jiretz is president of Respondent.
The sheet metal employees of Respondent have been
represented under contract for more than 27 years by
Local 57. Respondent was a member of Sheet Metal and
Air Conditioning Contractors National Association, Inc.
(SMACNA), Florida West Coast Chapter. It had author-
ized SMACNA to negotiate contracts with Local 57 on
its behalf. The last was effective July 19, 1981, through
By merger on or about April 1, 1984, Sheet Metal Workers Interna-
tional Association, Local Union No. 15 (Local 15) replaced Local 57 and
is Local 57's successor,
TAMPA SHEET METAL CO. 329
June 30, 1983. 2 In addition to Respondent's membership
in SMACNA, Jiretz was on the board of trustees of the
Union's welfare and vacation funds. The SMACNA con-
tract provided, in relevant part, in article X, section 8:
In addition to the settlement of grievances arising
out of interpretation or enforcement of this agree-
ment 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 provid-
ed:
(a) Should the negotiations for renewal of this
agreement become deadlocked in the opinion of the
Local Union or 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 Sheet Metal and Air Conditioning Con-
tractors' National Association, Inc.
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 the board
shall be final and binding on the parties, rechiced to writ-
ing, 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
the board fails to reach a unanimous decision and the
parties have received written notification Of its failure.3
By letter dated March 25, Local 57 notified SMACNA
and Respondent of its desire to negotiate modifications
of the 1981-1983 collective-bargaining agreement. How-
ever, Respondent had decided that it no longer wanted
to negotiate with Local 57 as a part of the Association,
and by letter from Jiretz, dated March 28, Respondent
withdrew authorization from SMACNA. 4 The letter
reads, inter alia:
Our company's agreement with SMACNA, Flor-
ida West Coast Chapter, which was effective July
1, 1981, expires on June 30, 1983.
3 All dates refer to 1983 unless otherwise indicated
3 The submittal procedural rules of the National Joint Adjustment
Board (NJAB) state, inter alia.
PROCEDURES UNDER ARTICLE X, SECTION 8
OF THE STANDARD FORM OF UNION AGREEMENT
SUBMITTAL PROCEDURE
If negotiations for a new agreement have not been successfully
concluded by the 45th day prior to the expiration of the current
agreement and a new agreement has not been negotiated within ten
(10) days thereafter, they shall for the purpose of this procedure, be
considered "deadlocked" within the mea_nmg of Article X, Section 8
and the services of the National Joint Adjustment Board shall be in-
voked. Notice thereof shall be given by either party or both to the
office of the General President of the Sheet Metal Workers' Interna-
tional Association and to the National Office of the Sheet Metal &
Air Conditioning Contractors' National Association on forms to be
furnished by either of such associations
4 The parties' stipulation notes that Respondent's withdrawal from
multiemployer bargaining was "proper and timely'
This is to advise we do not wish to participate in
joint negotiations with your union as part of the
Florida West Coast Chapter of SMACNA. Also,
we hereby notify you, in accordance with Article
26 of this agreement, that we do not wish to keep
this contract in force on a year-to-year basis.
Should we have reason to believe a union repre-
sents a majority of our employees in an appropriate
bargaining unit, we would be willing to negotiate
with that union.
Thereafter, Respondent and the Union held three bar-
gaining sessions in an effort to negotiate an individual
contract. At the first session on May 31, the Union sub-
mitted to Respondent, as a proposal, the "Standard Form
Union Agreement" with some 10 sections of the standard
agreement "highlighted" with a yellow marker, and
which the Union proposed for modification. These sug-
gested areas of modification, however, did not include
any modification of article X, section 8 which the Union
was proposing be retained in any individual contract. Re-
spondent suggested that the nature of its operations had
changed and that the Standard Form of Union Agree-
ment was not appropriate to its present operation. Re-
spondent, however, made no proposals of its own at this
session and took the position that it wanted to dispose of
noneconomic items before negotiating economic items.
A second negotiating session was conducted on June
15. At this meeting the Union submitted written propos-
als covering "targeted jobs," and made certain economi-
cal proposals. Respondent orally proposed a manage-
ment-rights provision However, no agreement was
reached at this session.
By letter dated June 27, Jiretz resigned his position on
the board of trustees for the union welfare and vacation
funds. By a second letter from Jiretz, also dated June 27,
Respondent resigned its 'membership in SMACNA.
At the third and last bargaining session on June 29, the
Union proposed additional written economic and non-
economic proposals. The Union's original modifications
to the Standard Form Union Agreement were reviewed,
without agreement, except that the Union withdrew one
item (Building Fund) dealing with the creation of a fund
to provide for apprenticeship training, union offices, and
a meeting hall. It is undisputed that Respondent at this
session and during the prior session on June 15 took posi-
tion that it was opposed to and did not feel bound by the
dispute resolution procedures of NJAB under article X,
section 8 of the contract. At this last session, Respondent
advised the Union that it would prepare written propos-
als for the Union's consideration.
On July 1, Respondent's attorney notified Union Busi-
ness Manager Harold J. Salinas that it was putting a pro-
posal in the mail. This proposal was not received by the
Union until July 5. Respondent's proposal for a 1-year
contract provided for payment by Respondent to various
funds, as in the expired SMACNA contract, including an
industry fund, national training fund, local training (Ap-
prenticeship) trust fund, and health, welfare and pension
fund. Nonetheless, the Union notified Respondent, by
letter dated July 1, mailed on July 2, as well as several
other contractors, that it regarded negotiations as "dead-
330 DECISIONS OF THE NATIONALLABOR RELATIONS BOARD
locked" and was submitting the dispute to NJAB for res-
olution. The letter reads, inter alia:
In accordance with Article X, Section 8 of our
collective bargaining agreement, Local 57 advises
you of its opinion that the negotiations for renewal
of the agreement are deadlocked. Local 57 intends
to submit the dispute to the National Joint Adjust-
ment Board for resolution. We have enclosed copies
of our notice to the General President of Sheet
Metal Workers' International Association and the
form prescribed by the National Joint Adjustment
Board for presenting your submittal.
By telegram dated July 5, Respondent was notified by
SMACNA that NJAB at its meeting on July 11 would
hear the case between Local 57 and Respondent.
On July 7 Salinas hand delivered to Jiretz what Salinas
described as an "analaysis" of Respondent's proposal. It
is essentially a comparison of the Respondent's proposal
with the union proposal of May 31.
By letter dated July 8, hand delivered to Respondent
on that date, although not personally received by Jiretz
until July 11, the Union advised Respondent and several
other contractors that it would be available to continue
contract discussion in Denver prior to the submission of
the matter to the NJAB, the letter reads, inter alia:
In accordance with the procedural rules of the
National Joint Adjustment Board and in conjunc-
tion with the proceedings outlined in Article X,
Section 8 of our existing agreement, we are hereby
advising that SMWIA-L.U. #57 is available to con-
tinue contract negotiations in order to achieve an
agreement prior to the appropriate submissions
being made to the N.J.A.B.
Please contact Harold J. Salinas at the union
office at 813/229-1052 and/or the Fairmont Hotel,
1750 Welton Street, Denver, Colorado whereby a
representative of our union will be made available
to continue our contract discussions.
On July 11, the Union presented the case to NJAB.
Respondent was not present or represented. This presen-
tation consisted of the written submissions requested by
NJAB, and an oral presentation covering the unresolved
contract issues. Salinas, appearing for Local 57, does not
recall telling NJAB that the Respondent had withdrawn
bargaining authority from SMACNA, but Salinas testi-
fied that this fact appears in the written submissions
made by the Union to NJAB. 5 The members of NJAB
are selected by the International Union and by
SMACNA. Respondent was not represented on NJAB.
In response to Salinas' letter of July 8, Respondent's
attorney, by letter dated July 13, wrote, inter alia:
Reference is made to your form letter of July 8,
1983.
5 While not explicit, this submission appears to describe the contract
dispute as between Respondent and Local 57 rather than SMACNA and
Local 57. This suggest that bargaining authonty no longer resided in
SMACNA
As you are aware, the undersigned represents
Tampa Sheet Metal. It is our understanding that this
letter was hand delivered on Friday, July 8, 1983 in
the latter part of the afternoon. Mr. Jiretz was not
in the office and did not have the opportunity to
review it until July 11, 1983
We view this letter as a continuation of your at-
tempts to compel my client to act as if it were a
member of the employer association. As you are
aware, we withdrew bargaining rights from the as-
sociation on March 28, 1983, and negotiated with
you individually thereafter. During the course of
negotiations, you constantly made reference to your
belief that the Sheet Metal and Air Conditioning
Contractors' National Association had the power to
impose a contract upon us. We consistently stated
our position that we will not be forced into a proce-
dure whereby we would be denied our statutory
right to act as our own bargaining representative.
On Monday, July 11, 1983, we were offered the
opportunity to go to the Fairmont Hotel, in
Denver, Colorado, "whereby a representative of
our union will be made available to continue our
contract discussions."
The referenced letter is in direct variance with
your position stated on July 1, 1983, when you ad-
vised that you were of the "opinion that the negoti-
ations for a renewal agreement are deadlocked."
You may rest assured that any negotiations that
are conducted by Tampa Sheet Metal will be at a
time and place convenient to both parties and with
a bargaining representative of our own choosing.
We view your eleventh-hour notice to meet you in
Denver to be an outrageous form of coercion.
By decision dated July 15, together with a clarification
dated August 24, NJAB directed Respondent to execute
what was essentially a Standard Form 3-year SMACNA
contract, with the deletion of article X, section 8, effec-
tive July 1, 1983.
By memorandum dated July 19, Local 57, requested
Respondent to abide by the July 15 NJAB sward by
giving effect to the collective-bargaining agreement im-
posed by NJAB.
By letter dated July 21, from Jiretz, Respondent re-
fused to abide by the NJAB award. This letter reads,
inter alia:
Enclosed you will find the decision you delivered
to me on July 20, 1983.
We wish to restate our position that the entire
course of your conduct during negotiations reflect-
ed a calculated design to go beyond impasse and at-
tempt to invoke the procedures of the National
Joint Adjustment Board. This effectively ensured
certain contract provisions would be determined by
a panel on which we have no representation. We
hold this to be in patent derogation of our right to
bargain collectively through representatives of our
own choosing.
I have no intention of adhering to the enclosed
decision, and I take the position that the collective
TAMPA SHEET METAL CO. 331
bargaining agreement with your organization termi-
nated on June 30, 1983.
We reiterate our position of a willingness to ne-
gotiate with you, your union, or any union that can
demonstrate that it represents the majority of the
employees at Tampa Sheet Metal Company.
Ely letter dated August 9, Local 57 declined to contin-
ue to negotiate with Respondent. That letter from the
Union's attorney reads, inter alia:
With respect to Tampa Sheet Metal, I attempted
to reach you [Respondent's attorney] by telephone
today but was advised that you were out of town.
Harold Salinas received a call from John Jiretz re-
garding a proposed meeting scheduled for tomor-
row to be attended by Mr. Salinas, John Jiretz and
you. Harold has notified Mr. Jiretz that he cannot
attend since we have matters pending before the
National Labor Relations Board requiring Harold's
presence. To the extent that the meeting relates to
the current collective bargaining agreement, I must
remind you of our position. As far as Local 57 is
concerned, there is in effect a collective bargaining
agreement, between it and Tampa Sheet Metal, Inc.
If there are specific provisions of the agreement
which Tampa Sheet Metal does not understand, or
if there is some difficulty in administering the agree-
ment, then Local 57 will be glad to discuss it with
your client. If you are attempting to negotiate sub-
stantive terms and conditions of employment, how-
ever, Local 57 must decline any such meeting.
Given the fact that there exists a collective bargain-
ing agreement, Local 57 is not obligated to engage
in continued negotiations.
I hope the foregoing expresses with clarity Local
57's position regarding the current agreement. If
you have any questions, please communicate with
me.
it is undisputed that Respondent has stop making pay-
ments to various funds under the NJAB composed con-
tract. The stipulation in this regard reads:
Since July 5, 1983, TSM has forwarded no
monies to the union trusts funds (described in the
1981-1983 collective bargaining agreement and the
1983-86 agreement imposed by the NJAB) nor to
Local 57 or Local 15 for pension, fringe benefit and
similar assessments. From on or about July 1, 1983
to on or about September 7, 1983, TSM continued
deducting from employees' pay for the various as-
sessments required by the expired collective bar-
gaining agreement; however, during this same
period no monies were forwarded to the trust funds
or Local 57. On or about September 7, 1983, TSM
ceased further deductions. By letters dated Septem-
ber 7, 1983, TSM informed Local 57, the trust
funds, and the employees of its cessation of deduc-
tions from employees' pay, and its refusal to con-
tribute to the various employee benefit funds. (Joint
Exhibits 12, 13, 14.) Since July 5, 1983, and continu-
ing to date, TSM has ceased local training trust
fund, national training fund, pension fund, health
and welfare fund and SASMI contributions. TSM
further ceased deducting vacation fund and political
action fund contributions and union dues from em-
ployees' pay.
On or about September 21, Local 57 filed suit in Fed-
eral district court against Respondent to enforce the
NJAB award. That case was pending at the time of the
hearing in the instant case.
On or about September 21, various fringe benefits
funds filed suit against Respondent in Federal District
Court for the Middle District of Florida, Tampa Divi-
sion. A memorandum decision issued in that case on June
29, 1984. In essence, the decision concluded that Re-
spondent was bound by the NJAB award, and ordered
Respondent to make the contributions to the various
funds as required under the NJAB-imposed contract.
On October 11, Respondent filed a charge against
Local 57 (Case 12-CB-2573). On December 22, that
charge was partially dismissed and an appeal of this par-
tial dismissal was denied on February 13, 1984. On De-
cember 20, a complaint issued on the undismissed portion
of that charge, which complaint was amended on Febru-
ary 29, 1984. It alleges that beginning on or about July 1,
and continuing to date, the Union has insisted to impasse
that the Respondent agree to a grievance procedure pro-
viding for resolution of grievances by a representative
not selected by Respondent, i.e., NJAB. On April 13,
1984, a unilateral settlement and notice was approved in
that case providing, inter alia, "Will not refuse to bargain
in good faith with Tampa Sheet Metal Company, Inc.
(the Employer) by insisting to the point of impasse, as a
condition of a new collective-bargaining agreement, on a
nonmandatory subject of bargaining providing for resolu-
tion of grievances by a representative not selected by the
Employer." On April 17, 1984, Case 12-CB-2573 was
dismissed based on the settlement. No appeal was taken
from the April 17, 1984 dismissal,
B. Discussion and Analysis
1. Refusal by Respondent to abide by the NJAB
contract
The General Counsel takes the position that the inter-
est arbitration provisions of the expired 1981-1983 con-
tract between the Union and SMACNA survived the
contract and that the NJAB award obtained by the
Union was binding on Respondent. I do not agree.
The short answer to this question is that under Board
law, interest arbitration provisions are not mandatory
subjects of bargaining. 6 See Sheet Metal Workers Local
38 (Elmsford Sheet Metal), 231 NLRB 699 (1977), in
which the Board states:
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
6 Interest arbitration can be defined as requiring final and binding arbi-
tration over the terms of successive contracts.
332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
other terms and conditions of employment." A pro-
vision which does not relate to these matters is a
nonmandatory subject of bargaining and no party
may insist upon its inclusion in the bargaining
agreement to the point of impasse. The Board has
held that industry funds and interest arbitration
clauses are nonmandatory subjects of bargaining.
Because interest arbitration is thus a permissive bar-
gaining subject, it follows that the interest arbitration
provisions of the expired SMACNA contract did not
survive the contract's expiration. Respondent was free
then to reject interest arbitration as a union proposal in
individual contract negotiations. This is what Respond-
ent did. The Union at the outset of negotiations proposed
retention of the interest arbitration provisions of the
SMACNA contract in any individual contract. From the
outset, Respondent rejected this proposal, taking the po-
sition that it had no intention of being obligated to any
contract imposed by a tribunal on which it was not rep-
resented.
Despite the Respondent's protestations, and over its
continuing objection, the Union, by letter dated July 1,
invoked the interest arbitration provisions of the expired
SMACNA contract, and unilaterally brought the matter
to NJAB who made an award on July 15 imposing a
new 3-year contract on the parties.
Obviously, because Respondent was free to reject with
impunity as it did the Union's interest arbitration propos-
al, it follows that the contract that resulted from the
NJAB award was not binding on the Respondent and
Respondent's refusal to abide by it did not violate Sec-
tion 8(a)(5) of the Act.
Indeed, had the Union insisted to impasse on the inclu-
sion of an interest arbitration provision, this would have
violated Section 8(b)(3) and (1)(B) of the Act. Sheet
Metal Workers Local 38 (Elmsford Sheet Metal), 231
NLRB 699 (1977). In view of this, it would be inconsist-
ent to allow the Union to obtain adherence to this con-
tract unilaterally, and over the objection of Respondent
by imposing an 8(a)(5) remedy on Respondent ordering
such relief.7
The General Counsel's reliance on NoIde Bros. v.
Bakery Workers Local 358, 430 U.S. 243 (1977), is mis-
placed. In Nolde, the Supreme Court held that the griev-
ance arbitration provisions of an expired contract applied
to the resolution of a dispute over severance pay because
it was a dispute arising over the application and intrepre-
tation of the expired agreement. In NoIde, however, the
grievance arbitration provision of the expired contract
was a mandatory bargaining subject whereas the interest
arbitration provision of the expired contract in the in-
stant case is a nonmandatory subject. Further, the dis-
pute in the instant case does not involve the application
or interpretation of the expired contract, but is prospec-
7 Although the matter has not been litigated, the General Counsel
issued a complaint against the Union and obtained settlement based on
the allegation that the Union was insisting "to impasse that TSM (Tampa
Sheet Metal) agree to a grievance procedure providing for resolution of
grievance by a representative not selected by TSM" because that griev-
ance procedure was a nonmandatory bargaming subject (Case 12-CB-
2573)
tive because it vests in NJAB the right to create and
impose a new contract on the parties.
2. Unilateral discontinuance of payments to various
funds
The General Counsel takes the position that Respond-
ent had a continuing obligation to make payments to var-
ious fringe benefit funds under both the expired
SMACNA contract and the new contract imposed by
NJAB. As noted above, I have concluded that Respond-
ent is not obligated to abide by the terms of the NJAB
imposed contract. Accordingly, I reject the theory that
the NJAB imposed contract constitutes any basis for im-
posing on Respondent an additional 3-year obligation to
contribute to these funds.
The General Counsel also contends that the Respond-
ent is obligated to continue,. payments to the funds be-
cause that obligation survives the expiration of the
SMACNA contract. The Board has long held that terms
and conditions of employment governing the employer-
employee relationship survive a collective-bargaining
agreement, while those governing the relationship be-
tween a union and an employer do not. See Bay Area
Sealers, 251 NLRB 89 (1980). Although it is not entirely
clear, the General Counsel's suggested order appears to
seek relief limited to the following funds: national train-
ing funds, local training (apprenticeship) trust fund,
health, welfare and pension plans, vacation fund, political
action fund, and dues-checkoff provision. Apparently,
the General Counsel feels that these funds involve the
employer-employee relationship.
The general proposition, however, is not absolute.
There are circumstances that permit exceptions to the
general principle. For instance, in Bay Area Sealers, the
Board recognizes the general rule that provisions gov-
erning the employer-employee relationship survive the
contract, but limits the application of that rule with the
caveat "unless the employer gives timely notice of its in-
tention to modify a condition of employment and the
union fails to timely request bargaining, or impasse is
reached during bargaining over the proposed change."
The issue presented is whether the general proposition
applies, or the circumstances of this case warrant, an ex-
ception to the general proposition.
First, I am satisfied that the parties had reached an im-
passe in their negotiations. From the outset of negotia-
tions, Respondent had maintained its opposition to the in-
terest arbitration provisions of this SMACNA contract
proposed by the Union. The Union was equally adamant
in insisting that the interest arbitration provisions of the
SMACNA contract be retained, and by letter dated July
1 invoked interest arbitration procedures by declaring a
deadlock in negotiations and announcing its intention to
submit to the dispute to NJAB. From that point forward
the facts support the conclusion that the Union would be
satisifed with nothing less than the NJAB contract
award, unilaterally obtained on July 15. The Union
thereafter consistently refused to enter into any negotia-
tions on a new contract, insisting that a new contract al-
ready existed by reason of the NJAB award. This con-
tinuing and basic disagreement of the parties on a matter
TAMPA SHEET METAL CO. 333
of overriding importance, i.e., intereSCarbitration, and
the Union's acknowledgement of that ultimate disagree-
ment by submitting the matter to NJAB, makes it clear
that continued bargaining would have been futile and
that an impasse existed between the parties at the time
that the Union announced its intention on July 1 to
submit the dispute to NJAB.8
In my opinion, after the Union on July 1 invoked the
procedures leading to the NJAB imposed contract, it
was no longer interested in pursuing any meaningful ne-
gotiations, and all prospects for a negotia,ted agreement
had been exhausted. Taft Broadcasting Co., 163 NLRB
475 (1967).
Having thus concluded that impasse had been reached,'
there remains for consideration the extent to which, if at
all, Respondent was privileged to discontinue payments
to the various funds. Under existing Board law, once an
impasse has been reached, an employer may implement
whatever provisions may reasonably be encompassed
within its last contract proposal. Taft Broadcasting Co.,
supra. The General Counsel contends that because Re-
spondent's last contract proposal of July 1 included con-
tributions to the various funds, it could not unilaterally
discontinue payments to those funds because such action
was not consistent with its last proposal.
Absent any impasse as to the specific contract provi-
sions dealing with the various funds, it could reasonably'
be argued that the Respondent was obligated to negoti-
ate further as to those matters before discontinuing pay-
ments to them. However, Respondent has been preclud-
ed from engaging in any further negotiations as to those
or any other matters. Indeed, Respondent attempted in
its letter of July 21 to resume negotiating with the
Union. It was the Union in its response of August 9 that
rejected further negotiations by taking the position that a
binding 3-year contract, including contributions to the
3 The Board has recently held that the "overall Importance" of an
issue lends support to an impasse finding Bell Transit Go, 271 NLRB
1272 (1984).
„
varibus iiids, was already in effect, thus conclusively
defining their collective-bargaining relationship for the
next 3 years. In these circumstances, any further effort
by Respondent to promote negotiations on any contract
matter would have been an exercise in futility. Respond-
ent was clearly warranted in assuming that further bar-
gaining would have been futile. See Alsey Refractories
Co., 215 NLRB 785 (1974), and Patrick & Co., 248
NLRB 390 (1958). To order the Respondent to continue
making payments to these funds, while at the same time
the Union is insisting that the 3-year NJAB-imposed con-
tract is binding and not negotiable, would have the effect
of obligating the Respondent to contribute to these funds
for an additional 3 years without any prospect of being
able to negotiate changes. In these circumstances, the
Respondent did not violate Section 8(a)(5) of the Act
when it discontinued payments to the various funds, and
discontinued the dues checkoff, 8 and this is true despite
the fact that the changes it made went beyond its last
proposal.
Accordingly, I conclude that Respondent did not vio-
late the Act by refusing to abide by the NJAB award; by
discontinuing payments to the various fringe benefit
funds; or by discontinuing the dues checkoff.
CONCLUSION OF LAW
Respondent has not engaged in any conduct violative
of the Act.
[Recommended Order for dismissal omitted from pub-
lication.]
9 Normally a dues-checkoff provision does not survive an expired con-
tract because it involves an employer-union relationship. Bay Area
Sealers, supra The fact that the Union was unilaterally pursuing enforce-
ment of a nonmandatory bargaining subject, i e, interest arbitration, does
not, as the General Counsel contends, obligate Respondent to maintain
the dues-checkoff provision after the expiration of the contract.