Sheet Metal Workers Local 9 (Concord Metal)

National Labor Relations Board - Board Decisions

Jan 15, 1991

301 N.L.R.B. 140 (N.L.R.B. 1991)

140
301 NLRB No. 32
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
The Respondent contends that the judge’s credibility findings in favor of the
witnesses presented by the General Counsel and the Charging Parties indicate
his bias against the Respondent. The Respondent also asserts that the judge
improperly refused to continue the hearing in order for the Respondent to
present a ‘‘key witness,’’ and that this refusal also shows clear and unmistak-
able bias against the Respondent. We agree with the judge’s refusal to grant
a continuance of the hearing in order to allow Leroy Gauthier to testify, par-
ticularly in light of the fact that the Respondent failed to subpoena Gauthier
and gave no reason for its failure to do so. Further, we have carefully exam-
ined the judge’s decision and the record, and we are satisfied that the Re-
spondent’s contentions with regard to bias on the part of the judge are without
merit.
2 Collier involved the additional fact that the union’s submission of unre-
solved bargaining issues to interest arbitration was pursuant to a multiemployer
contract after the employer had timely withdrawn from the multiemployer bar-
gaining association that had negotiated that original contract. The analyses
whether a union bargains in bad faith and whether an employer is restrained
or coerced by a union in the selection of its bargaining representative by the
pursuit of interest arbitration are equally applicable, however, in situations in-
volving single-employer bargaining, as in the present case.
3 The Association had a number of members who had not designated the
Association as their collective-bargaining representative. Those members were
not part of the multiemployer bargaining unit and became bound to the con-
tracts between the Association and the Respondent only by signing ‘‘me too’’
contracts or negotiating on an individual basis with the Respondent. At one
point, the Respondent accepted a ‘‘conditional appointment of bargaining
rights’’ from contractors, which gave the Association’s labor committee the
right to bargain on their behalf, but gave the contractor the right to refuse to
sign the resulting agreement. Such a conditional appointment was executed by
Charging Party Triangle on March 21, 1984 and again on January 7, 1987.
The Respondent, however, refused to accept the conditional appointment of
bargaining rights for the 1987 negotiations. By letter dated March 16, 1987,
the Association’s labor committee informed the Respondent that several con-
tractors, including Charging Parties Triangle and Pueblo, wished to be rep-
resented by the labor committee on an individual basis and not as a part of
the multiemployer group for the 1987 negotiations. By letter dated June 30,
1987, Triangle informed the Respondent that it was terminating its conditional
appointment of bargaining rights to the Association’s labor committee, and
stated that any further negotiations would be conducted on an individual basis.
Although there is no evidence in this record that Charging Parties Concord
or Pueblo ever assigned their bargaining rights to the Association, Pueblo sent
a letter to the Respondent, identical in content to that sent by Triangle but
dated July 1, 1987, terminating the conditional appointment of bargaining
rights. Concord also sent the Respondent a letter, dated January 6, 1987, ‘‘re-
voking and cancelling any and all prior assignment of bargaining rights to the
SMACNA Labor Committee,’’ and stating that it would negotiate on an indi-
vidual basis.
Sheet Metal Workers International Association,
Local Union No. 9 and Concord Metal, Inc;
Pueblo Sheet Metal Works, Inc; Triangle Sheet
Metal Company. Cases 27–CB–2562–2, 27–CB–
2563, and 27–CB–2564
January 15, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On April 19, 1989, Administrative Law Judge Rich-
ard D. Taplitz issued the attached decision. The Gen-
eral Counsel and the Charging Parties filed exceptions
and briefs. The Respondent filed cross-exceptions and
a brief in opposition to the General Counsel’s and the
Charging Parties’ exceptions. The General Counsel and
the Charging Parties filed answering briefs to the Re-
spondent’s cross-exceptions. The General Counsel also
filed a motion for expedited consideration.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions,
cross-exceptions, and briefs and has decided to affirm
the judge’s rulings, findings,1 and conclusions only to
the extent consistent with this Decision and Order.
The judge found that the Respondent did not violate
Section 8(b)(1)(B) and (3) by insisting that the Charg-
ing Party contractors are bound to an interest arbitra-
tion clause for a successor agreement, by invoking the
services of the National Joint Adjustment Board (Joint
Board or NJAB) pursuant to that clause, and by pur-
suing enforcement of the NJAB awards through griev-
ing the Charging Parties’ failure to comply with the
awards and through its assertion in Federal district
court that the Employers are bound to interest arbitra-
tion. Since the issuance of the judge’s decision, the
Board has decided Electrical Workers IBEW Local 113
(Collier Electric), 296 NLRB 1095 (1989). Collier sets
forth the Board’s analysis for determining whether a
union violates the Act by submitting unresolved bar-
gaining issues to interest arbitration.2 Applying this
analysis, we find that the Respondent, by the various
actions noted above in pursuit of interest arbitration,
violated Section 8(b)(1)(B) of the Act. For the reasons
set forth below, we adopt the judge’s conclusion that
the Respondent did not violate Section 8(b)(3).
The Alleged Unfair Labor Practices
A. Background
1. The 1981–1983 agreement
The three contractors involved in the present case
are all employers engaged primarily in the building
and construction industry. All were members of the
Sheet Metal and Air Conditioning Contractors National
Association, Colorado Chapter (SMACNA-Colorado or
the Association), and had established relationships with
the Respondent.3
In 1981, the Association and the Respondent entered
into a collective-bargaining agreement effective from
May 1, 1981, through June 30, 1983. This agreement
contained a clause, known as article 10, section 8 (art.
10–8), that provided for interest arbitration for a re-
newal contract. Article 10–8 provided that in the event
negotiations for a new contract became deadlocked, a
dispute resolution mechanism could be invoked that
would culminate in the setting of new contract terms
by the Joint Board. A unanimous decision of the Joint
Board was to be final and binding on the parties, who
141SHEET METAL WORKERS LOCAL 9 (CONCORD METAL)
were to reduce the award to writing and sign it. The
contract further provided that there was to be no strike
or lockout unless the Joint Board failed to reach a
unanimous decision. Concord, Triangle, and Pueblo
were each bound to the 1981–1983 agreement.
2. The 1983–1986 agreement
In early 1983, before the 1981–1983 contract ex-
pired, the Association and the Respondent engaged in
bargaining for a new contract. During these negotia-
tions, the Association took the position that interest ar-
bitration was a nonmandatory subject of bargaining,
and refused to negotiate about it. The Association and
the Respondent were unable to reach an agreement,
and the Respondent submitted the dispute to the NJAB
under article 10–8 of the 1981–1983 contract.
The Joint Board issued its decision on June 15,
1983. The award directed implementation of the A–3–
83 standard form of the union agreement, ‘‘with the
exception of Article 10, Section 8.’’ Despite this state-
ment, however, near the end of the decision there was
a provision that certain economic packages were to be
put into effect at the expiration of the agreement unless
the matters were resolved by interest arbitration. The
award also provided for a reopener for economic issues
on July 1, 1984, and July 1, 1985.
From the time that the award was received, the As-
sociation took the position that article 10–8 had been
eliminated in its entirety, and that its members were
not bound by interest arbitration. The Respondent ar-
gued that interest arbitration still applied, but only to
the wage reopeners scheduled for 1984 and 1985. A
clarification was requested of the NJAB on several oc-
casions. On August 10, 1983, the Joint Board issued
a clarification of its July 15, 1983 award, stating that
its intention was that the A–3–83 standard form union
agreement would be implemented in its entirety, with
the exception of article 10–8, and that no other
changes in the existing agreement were directed except
those agreed on locally. The Respondent and the Asso-
ciation executed a new agreement effective July 1,
1983, through June 30, 1986, to which the Joint Board
award and clarification were annexed. The agreement
deleted article 10–8 in its entirety.
3. The 1985 extension of the contract
In 1985, the 1983–1986 agreement was extended by
the Respondent and the Association through June 30,
1987, and a revised contract (the green book) for
1983–1987 was printed. The green book contained
changes in certain economic conditions and in the ex-
piration date. There is no contention that the 1983–
1986 contract or its 1983–1987 extension contained
any interest arbitration provision applicable to a re-
newal agreement.
The 1983–1987 contract contained a ‘‘preferential
clause’’ (favored nations clause) as had predecessor
agreements. That clause provided that if the Respond-
ent gave any other employer in the sheet metal indus-
try better terms or conditions than those set forth in the
current agreement, those terms or conditions would be
made available to the signatory employer for all jobs
in Colorado. It also provided that the Respondent
would immediately notify the signatory employer of
any such concessions.
4. The expiration of the 1983–1987 agreement
The 1983–1987 agreement expired on June 30,
1987. On June 2, 1987, the Respondent sent a telegram
to the NJAB requesting the services of the Joint Board
with respect to certain contractors, including Concord,
Triangle, and Pueblo. The telegram further stated that
the Respondent would continue to negotiate in good
faith. On July 10, 1987, the Respondent wrote the
Joint Board, again requesting its services with respect
to certain contractors, including Concord, Triangle, and
Pueblo. The letter also stated that each contractor
would be notified by registered mail of the request and
would be sent a copy of the material affecting it.
On July 20, 1987, the law firm representing a num-
ber of the independent contractors, including Concord,
Triangle, and Pueblo, wrote to the Respondent and the
Joint Board. The letter stated that the Joint Board had
no authority or jurisdiction to issue an award, that the
Respondent had fraudulently sought to secure the juris-
diction of the Joint Board, and that for a number of
reasons the contractors were not bound by article 10–
8, therefore, any award issued by the Joint Board
under that provision would be void. The letter also
stated that the contractors were considering a suit in
the Federal district court to seek an injunction.
On November 12, 1987, the Joint Board issued three
decisions. Those decisions, without any statement of
reasons, found that Concord, Triangle, and Pueblo
were bound to the interest arbitration procedures. All
three decisions required that the contractors execute a
collective-bargaining agreement with the Respondent.
None of the Charging Parties did so.
Thereafter, the Respondent filed and prosecuted
grievances against the three contractors on the grounds
that those employers had failed to comply with the
Joint Board’s awards. The Joint Board heard the griev-
ances, and found in favor of the Respondent. Concord,
Triangle, and Pueblo were ordered to begin complying
with the union agreement and were assessed penalties
of $5000 each for violations. These penalties were to
be suspended provided that all arrearages due employ-
ees and fringe benefits were paid within 30 days. The
decisions were sent to Pueblo on December 15, 1987,
and to Concord and Triangle on January 28, 1988.
142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 It appears that, at this point none of the three Charging Parties here were
part of the multiemployer bargaining group.
Sometime later, Concord, Triangle, and Pueblo,
along with other individual contractors, brought suit in
the Federal District Court for the District of Colorado
(Civil Action No. 87–C–1074), to set aside the Joint
Board award. The Respondent filed an answer and a
counterclaim. The Respondent also filed a motion to
confirm all of the arbitration awards.
B. The Parties’ Bargaining Histories
1. The 1983–1986 agreement
Concord, Triangle, and Pueblo each received a letter
from the Respondent dated August 25, 1983, addressed
to all contractors signatory with the Union.4 The letter
stated that the Respondent was presenting for the con-
tractors’ signature a new contract ‘‘which contains the
changes agreed to with Colorado SMAC, the changes
ordered by the NJAB and remaining unchanged provi-
sions from the 1981–1983 agreement.’’ The letter ex-
plained that there were differences between the Re-
spondent and the Association over the meaning of cer-
tain provisions in the NJAB award, and that the en-
closed contract contained the Respondent’s version of
those disputed issues. The letter further stated that if
any differences with the Association were resolved in
the Association’s favor, the contractors would be enti-
tled to implement those changes under the ‘‘favored
nation’’ clause in the agreement.
Enclosed with the letter was the ‘‘Standard form of
Union Agreement (A–3–83),’’ as well as the Joint
Board award and its clarification. In the standard
agreement was a truncated version of article 10–8.
This section provided that ‘‘any controversy or dispute
arising out of the failure of the parties to negotiate the
wage reopener this agreement [sic] shall be settled as
hereinafter provided: (a) Should the negotiations for re-
opening of this Agreement become deadlocked’’ the
parties would proceed through certain steps. The con-
tract language referred to a procedure for resolving the
dispute without going before the National Joint Adjust-
ment Board, but ended abruptly in midsentence with-
out delineating any steps for appearing before the
NJAB.
On November 14, 1983, the 1983–1986 contract was
signed by SMACNA-Colorado and the Respondent.
This agreement deleted article 10–8 in its entirety. The
Respondent then sent a letter dated November 15,
1983, to ‘‘All Union Sheet Metal Contractors Whose
Bargaining Rights are not held by SMACNA-Colo-
rado,’’ stating that the contract had been signed and
that the Respondent would be approaching contractors
‘‘to sign the same agreement on an individual basis
that was negotiated with SMACNA-Colorado.’’
a. Concord
A few days after the November 14 letter was re-
ceived by Concord, one of the Respondent’s business
representatives, Ronald Halvorson, left a union con-
tract with Rudy Tezak, Concord’s president, that con-
tained an article 10–8 provision relating to the ‘‘wage
reopener.’’ This was the same article that had appeared
in the contract Concord had received in August 1983.
Tezak wrote ‘‘out’’ next to article 10–8. Sometime
later, Halvorson returned to pick up the contract and
they discussed it. Halvorson asked Tezak why he had
written ‘‘out’’ next to article 10–8. Tezak replied that
there was no article 10–8 in the agreement. Halvorson
stated that the provision related only to the wage re-
opener. Tezak responded ‘‘fine,’’ and signed two cop-
ies of the agreement. Tezak kept the contract with the
notation ‘‘out’’ next to article 10–8, and Halvorson
took with him the other ‘‘clean’’ copy of the agree-
ment. As stated above, the article 10–8 provision on its
face was clearly limited to wage reopeners and made
no mention of a renewal agreement.
b. Triangle
Sometime in August 1983, prior to receiving the
August 25 letter, Triangle had received a proposed
contract containing the full article 10–8 clause, which
referred to interest arbitration for a renewal agreement.
As noted above, the contract Triangle received with
the August 25 letter contained only the truncated
version of article 10–8, referring to wage reopeners. In
November 1983, Triangle received the November 14
letter requesting Triangle to sign on an individual basis
the same contract to which the Association had agreed.
On about December 12, 1983, Thomas Kulas, the
president of Triangle, had a conversation with Re-
spondent Business Representative Leroy Gauthier in
which they discussed the two different contracts that
Triangle had received. Gauthier told Kulas that the
contract with the attachments was the correct one.
Kulas wrote ‘‘void’’ on the contract containing the full
article 10–8 clause and then signed the other contract
containing the truncated version of article 10–8, refer-
ring only to wage reopeners.
c. Pueblo
On September 13, 1983, the Respondent’s represent-
ative, Ed Eason, went to the Pueblo shop and spoke
to Pueblo’s secretary-treasurer Darrell Haun. Haun did
not ordinarily deal with labor relations for that Com-
pany. Eason said that he had to have the contract
signed right away, and spoke of pulling the men if it
was not signed. There was no discussion of the terms
of the contract, and Haun did not compare the contract
that Eason brought with him to the contract the Com-
pany had received with the August 25 letter. Haun
signed two copies of the contract that Eason had
143SHEET METAL WORKERS LOCAL 9 (CONCORD METAL)
brought with him. Eason took one of the contracts with
him and left the other at Pueblo. Unlike the contract
received by Pueblo with the August 25 letter, the con-
tract Haun signed contained a full article 10–8 clause
which bound the parties to interest arbitration for a re-
newal agreement at the expiration of the contract.
2. The 1985 extension
In 1985, the Respondent and the Association re-
opened the 1983–1986 agreement for the purpose of
bargaining over certain economic terms. Agreement
was reached on those terms and on a new expiration
date of June 30, 1987. After this agreement was
reached, the Respondent sent a copy of the new agree-
ment and a cover letter to all the sheet metal contrac-
tors, including Concord, Triangle, and Pueblo, asking
them to sign the new agreement by July 1, 1985. The
cover letter made clear that the contractors, by signing
the extension agreement, would be agreeing to an ex-
tension of the terms of the Union-Association agree-
ment. The letter further stated that a new collective-
bargaining agreement, complete with all language and
wages, would be forthcoming in the near future. Con-
cord signed the extension agreement on June 18, 1985.
Triangle signed the agreement on June 19, 1985. Pueb-
lo also signed this agreement at that time. The Re-
spondent then sent Concord, Triangle, and Pueblo a
copy of the green book, which contained the terms of
the 1983–1987 agreement. As noted above, the green
book did not contain any references to article 10–8, or
interest arbitration.
3. The expiration of the 1983–1987 agreement
a. Concord
Representatives of Concord met with the Respond-
ent on June 5 and 19, 1987, for individual negotia-
tions. At the June 19 meeting, the Respondent asserted
that Concord was bound by article 10–8 of the original
contract. Tezak denied the Company was so bound and
later sent the union representative a copy of the agree-
ment he had signed. On July 1, 1987, Concord sent the
Respondent a letter stating that its contract with the
Respondent had expired on June 30, 1987; that notice
of contract termination had been timely served; that the
Respondent had never been certified by the Board; and
that the Company had never voluntarily recognized the
Respondent pursuant to Section 9(a) of the Act as the
majority representative of its employees. The letter
went on to state that
pursuant to John Deklewa & Sons, 282 NLRB
No. 184 (1987), our company has no obligation to
bargain for a successor agreement or otherwise
engage in collective bargaining with your labor
organization. Any bargaining obligation which
may have existed prior to the termination of our
collective bargaining agreement is hereby repudi-
ated.
In August 1987, the Respondent filed a petition for
an election. The election was held and the Respondent
was certified as the collective-bargaining representative
for Concord’s employees on September 10, 1987.
After the Respondent was certified, it engaged in bar-
gaining with Concord, but no agreement was reached.
b. Triangle and Pueblo
In March 1987, the Association’s labor committee
informed the Respondent that a number of contractors,
including Triangle and Pueblo, desired the labor com-
mittee to represent them in negotiations on an indi-
vidual basis. In the early part of June, the Respondent
informed Steve Larson, who represented the individual
contractors, that the Respondent would be taking some
of the contractors to the Joint Board via article 10–8.
By letter dated June 12, 1987, the Association’s labor
committee, on behalf of the individual contractors, re-
jected the Respondent’s claim that some of the em-
ployers were bound to interest arbitration by article
10–8. The letter stated that the individual contractors
were asserting their rights under the preferential clause
to adopt the grievance procedure in the Association’s
contract, which deleted article 10–8. The letter also
stated that the contractors specifically rejected and re-
fused to adopt any form of interest arbitration. The Re-
spondent responded by a letter dated June 15, 1987,
stating that the contractors had a right to invoke the
preferential clause as of June 12, 1987, but that the
Respondent had invoked article 10–8 on June 2, 1987,
at which time interest arbitration was put into effect.
On July 1, 1987, Triangle repudiated its 8(f) bar-
gaining relationship with the Respondent. The text of
the letter was identical to the one that Concord had
sent to the Respondent. The Respondent thereafter pe-
titioned for an election. The election was held and on
August 26, 1987, the Board certified the Respondent
as the bargaining representative for Triangle’s unit em-
ployees. Thereafter, Triangle and the Respondent en-
gaged in bargaining, but no agreement was reached.
On July 15, 1987 Pueblo sent the Respondent the
same letter the Respondent had received from Concord
and Triangle, repudiating its 8(f) bargaining relation-
ship with the Respondent. From that time, Pueblo has
operated nonunion and has not recognized the Re-
spondent as the representative of its employees. There
have been no negotiations between Pueblo and the Re-
spondent since July 15, 1987.
144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 296 NLRB 1095 (1989).
6 Id. at 10–11.
7 John Deklewa & Sons, 282 NLRB 1375 at 1386 (1987).
8 282 NLRB at 1387.
9 Chairman Stephens agrees that, for the reasons stated above, the Respond-
ent violated Sec. 8(b)(1)(B) of the Act. He would, in any event, find a viola-
tion under the theory set out in his dissent in Collier Electric, supra.
Assuming for argument’s sake that the majority’s reasoning in Collier Elec-
tric, supra, is correct, Member Oviatt agrees that the Respondent has violated
Sec. 8(b)(1)(B) under either of the views expressed in Collier Electric.
10 Id. at 10–11.
C. Analysis and Conclusions
1. The 8(b)(1)(B) allegation
In Electrical Workers IBEW Local 113 (Collier
Electric),5 the Board found that a union is free to seek
enforcement of its contractual rights by submitting un-
resolved bargaining issues to interest arbitration and by
pursuing court enforcement of an arbitration award
only if the parties’ collective bargaining agreement at
least arguably binds the employer to interest arbitra-
tion. If the contract does not even arguably bind the
employer to interest arbitration, then the union’s sub-
mission of the unresolved bargaining issues to interest
arbitration constitutes coercion of the employer in the
selection of its bargaining representative in violation of
Section 8(b)(1)(B) of the Act.6 The Board in Collier
found support for its position in Bill Johnson’s Res-
taurants v. NLRB, 461 U.S. 731 (1983). Bill Johnson’s
sets forth a two-part test for determining whether the
Board can properly enjoin a pending court action.
Under this test, the Board must determine whether the
suit has a reasonable basis and whether there is a retal-
iatory motive in the filing of the lawsuit.
Here, the judge concluded, and we agree, that none
of the Charging Parties were bound by interest arbitra-
tion at the expiration of the 1983–1987 contract. In
1985, each of the Charging Parties signed the 1985 ex-
tension agreement negotiated by the Association and
the Respondent. The cover letter sent by the Respond-
ent to the Charging Parties with the extension agree-
ment stated that a new collective-bargaining agree-
ment, complete with all language and wages, would be
forthcoming in the future. Thereafter, the Charging
Parties were sent the 1983–1987 contract, and became
bound by its terms. This contract contained no ref-
erence to article 10–8 or interest arbitration.
Further, neither Concord’s nor Triangle’s original
1983–1986 contracts had, on their face, any reference
to interest arbitration for a renewal agreement. With
respect to Pueblo, although its 1983–1986 contract did
contain a full article 10–8 clause, we agree with the
judge that whatever the legal significance of that
agreement, it was later supplanted by the 1983–1987
green book, which contained no reference to interest
arbitration whatsoever. Pueblo, along with Concord
and Triangle, was offered and signed the 1985 exten-
sion agreement and became bound by the terms of the
1983–1987 green book. In these circumstances, we
find that Pueblo was not bound by the interest arbitra-
tion provisions in its 1983–1986 agreement with the
Respondent. Given the fact that the contract the Charg-
ing Parties were bound to in 1987 did not contain an
interest arbitration clause, we conclude that there is no
reasonable basis for the Respondent’s 1987 submission
of unresolved bargaining issues to the Joint Board for
interest arbitration or for its action in district court.
Having found no reasonable basis for the Respond-
ent’s claim that the Charging Parties were bound to in-
terest arbitration for a successor agreement in 1987, we
then examine whether the Respondent’s pursuit of in-
terest arbitration and its counterclaim in Federal court
reflect an improper motivation. We conclude that they
do.
In the absence of an interest arbitration clause, the
Charging Parties, as well as the Respondent, had the
right under the Act to repudiate the collective-bar-
gaining relationship.7 The Respondent’s actions in pur-
suing interest arbitration here is in derogation of the
Charging Parties’ exercise of their statutory right to re-
pudiate their bargaining relationship with the Union
after their 8(f) contracts with the Union expired. In es-
sence, the Respondent is seeking through its Federal
court suit to bind each of the Charging Parties to the
limited 9(a) relationship described in Deklewa,8 and to
prevent the Charging Parties from repudiating their
8(f) bargaining relationship with the Respondent, as
they are legally entitled to do in the absence of a bind-
ing agreement. In these circumstances, the Respondent,
by seeking the services of the NJAB, by pursuing its
position through the grievance procedure, and by as-
serting in Federal district court that Concord, Triangle,
and Pueblo are bound to interest arbitration for a suc-
cessor agreement has restrained and coerced the Charg-
ing Parties in the choice of their bargaining representa-
tive in violation of Section 8(b)(1)(B) of the Act.9
2. The 8(b)(3) allegation
The General Counsel asserts that the Respondent has
violated Section 8(b)(3) of the Act by invoking the
NJAB procedures on June 2, 1987, because at that
time, it had a duty to bargain with the Charging Par-
ties. The General Counsel further asserts that the Re-
spondent violated Section 8(b)(3) when it continued to
pursue interest arbitration even after the Respondent
became the certified bargaining representative of the
employees at Concord and Triangle.
At first glance, Collier would seem to support this
argument. In Collier, the Board stated that if a contract
does not even arguably bind an employer to interest ar-
bitration, then a union’s submission of unresolved bar-
gaining issues to interest arbitration constitutes bad-
faith bargaining in violation of Section 8(b)(3) of the
Act.10 Collier, however, involved a union and em-
145SHEET METAL WORKERS LOCAL 9 (CONCORD METAL)
11 282 NLRB at 1386.
12 Deklewa, 282 NLRB at 1386.
13 The record in this case provides few details of the parties’ conduct during
the postcertification period other than to indicate that they met and bargained.
The Board’s decision in Concord Metal, 298 NLRB 1076 (1990), however,
presents some information as to the postcertification bargaining between the
Respondent and Concord. In that case, the administrative law judge set forth
the events between the date of the Respondent’s certification and the economic
strike that the Respondent engaged in on December 9, 1987. During that time,
the parties met and negotiated on three occasions.Concord, supra. Nowhere in
that decision is there any suggestion that the Respondent did not meet its duty
to bargain collectively with the Employer.
14 Teamsters Local 418 (Seigle’s Express), 254 NLRB 953 at 957 (1981).
See also Teamsters Local 301 (Merchants Moving), 210 NLRB 783 (1974).
In particular, there is no evidence that the Respondent was treating its submis-
sions on various subjects to the NJAB as a constraint on positions it was will-
ing to take in bargaining with Triangle and Concord.
15 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
ployer who had been parties to a 9(a) agreement. In
contrast, the present case involves a union and employ-
ers who have been parties to an 8(f) agreement.
Deklewa does impose a limited 9(a) status on the
parties to an 8(f) agreement, including a duty to bar-
gain about certain changes in terms and conditions of
employment during the life of the contract.11 Deklewa
also makes clear, however, that in an 8(f) relationship,
a union does not enjoy a presumption of majority sta-
tus and, at the expiration of the contract, either party
can repudiate the relationship.12 Accordingly, we find
that where the parties are bound to an 8(f) agreement
and the union is not a 9(a) representative, there is no
duty to bargain for a successor agreement, and there
can thus be no violation of Section 8(b)(3) of the Act.
On August 26 and September 10, 1987, the Re-
spondent became the certified 9(a) representative of the
unit employees of Triangle and Concord, respectively.
The question then becomes whether the Respondent
violated Section 8(b)(3) by its continued pursuit of in-
terest arbitration in violation of Section 8(b)(1)(B)
after its certification in these units where there was no
reasonable basis for its initial submission to the NJAB.
We find that, in the circumstances here, it did not.
The Respondent met its duty to bargain collectively
with both Triangle and Concord after its certification
as the 9(a) representative in those units. On several oc-
casions during the postcertification period, the Re-
spondent met and negotiated separately with the des-
ignated bargaining representatives of these employ-
ers.13 Although it is true that the Respondent continued
to pursue interest arbitration during the
postcertification period even as it was negotiating with
Triangle and Concord, the General Counsel does not
allege and the evidence fails to establish that the Re-
spondent did not ‘‘enter into negotiations with an open
mind . . . .’’14 There is no indication that the Re-
spondent would have failed to execute and abide by an
agreement had one been reached. Accordingly, in these
circumstances, we find that the Respondent did not
violate Section 8(b)(3), either at the time of its submis-
sion to the NJAB when it was in an 8(f) relationship
with the Charging Parties, or later during the
postcertification period when it enjoyed a 9(a) relation-
ship with Triangle and Concord.
ORDER
The National Labor Relations Board orders that the
Respondent, Sheet Metal Workers International Asso-
ciation, Local Union No. 9, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Restraining or coercing Concord Metal, Inc.,
Pueblo Sheet Metal Works, Inc., and Triangle Sheet
Metal Company in the selection of their representative
for the purpose of collective bargaining and the adjust-
ment of grievances by insisting they are bound to an
interest arbitration clause for a successor agreement, by
invoking the services of the National Joint Adjustment
Board pursuant to that clause, and by pursuing the en-
forcement of the NJAB awards through grieving the
Charging Parties’ failure to comply with the awards
and through its continued assertion in Federal district
court that Concord, Triangle, and Pueblo are bound to
interest arbitration for a successor agreement.
(b) In any like or related manner restraining or co-
ercing Concord Metal, Inc., Pueblo Sheet Metal
Works, Inc., and Triangle Sheet Metal Company in the
selection of their bargaining representatives for the
purpose of collective bargaining or the adjustment of
grievances.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Request dismissal of its counterclaim filed in the
civil case in the United States Federal District Court
for the District of Colorado, Civil Action No. 87–C–
1074, to reform the 1983–1987 collective-bargaining
agreements with Concord Metal, Inc. and Triangle
Sheet Metal Company, and cease asserting in Federal
district court that Concord Metal, Inc., Pueblo Sheet
Metal Works, Inc., and Triangle Sheet Metal Company
are bound to interest arbitration for a successor agree-
ment.
(b) Make whole the Charging Parties for losses they
may have sustained as a result of the Respondent’s un-
lawful actions, including all legal expenses incurred in
defense of the Respondent’s charge that they were
bound to interest arbitration, with interest computed in
the manner set forth in New Horizons for the Retarded,
283 NLRB 1173 (1987).
(c) Post at the Respondent Union’s offices and meet-
ing halls copies of the attached notice marked ‘‘Ap-
pendix.’’15 Copies of the notice, on forms provided by
the Regional Director for Region 27, after being signed
by the Respondent’s authorized representative, shall be
146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to members
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.
(d) Sign and mail sufficient copies of that notice to
the Regional Director for Region 27 for posting by
Concord Metal, Inc., Pueblo Sheet Metal Works, Inc.,
and Triangle Sheet Metal ompany, if they are willing,
at all locations where notices to employees are custom-
arily posted.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO MEMBERS AND 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 or-
dered us to post and abide by this notice.
WE WILL NOT restrain or coerce Concord Metal,
Inc., Pueblo Sheet Metal Works, Inc., and Triangle
Sheet Metal Company in the selection of their rep-
resentative for the purpose of collective bargaining and
the adjustment of grievances by insisting they are
bound to an interest arbitration clause for a successor
agreement, invoking the services of the National Joint
Adjustment Board pursuant to that clause, and pur-
suing the enforcement of the NJAB awards through
grieving their failure to comply with the awards and
through our continued assertion in Federal district
court that Concord, Triangle, and Pueblo are bound to
interest arbitration for a successor agreement.
WE WILL NOT in any like or related manner restrain
or coerce Concord Metal, Inc., Pueblo Sheet Metal
Works, Inc., and Triangle Sheet Metal Company in the
selection of their bargaining representatives for the
purpose of collective bargaining or the adjustment of
grievances.
WE WILL request dismissal of our counterclaim filed
in the civil case in the United States Federal District
Court for the District of Colorado, Civil Action No.
87–C–1074, to reform our 1983–1987 collective-bar-
gaining agreements with Concord Metal, Inc. and Tri-
angle Sheet Metal Company, and WE WILL cease as-
serting in Federal district court that Concord Metal,
Inc., Pueblo Sheet Metal Works, Inc., and Triangle
Sheet Metal Company are bound to an interest arbitra-
tion clause for a successor agreement.
WE WILL make whole Concord Metal, Inc., Pueblo
Sheet Metal Works, Inc., and Triangle Sheet Metal
Company for losses they may have sustained as a re-
sult of our unlawful actions, including all legal ex-
penses incurred in defense of the our charge that they
were bound to interest arbitration, plus interest.
SHEET METAL WORKERS INTER-
NATIONAL ASSOCIATION, LOCAL UNION
NO. 9
Daniel C. Ferguson, Esq., for the General Counsel.
Walter C. Brauer III, Esq (Brauer & Buescher, P.C.), of
Denver, Colorado, for the Respondent Union.
Robert Miller and Cynthia Hanley, Esqs (Stettner, Miller &
Cohn, P.C.), of Denver, Colorado, for the Charging Par-
ties.
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge. This
case was tried in Denver, Colorado, on February 2 and 3,
1989. The charges in Cases 27–CB–2562–2, 27–CB–2563,
and 27–CB–2564 were filed on December 21, 1987, respec-
tively by Concord Metal, Inc. (Concord), Pueblo Sheet Metal
Works, Inc. (Pueblo), and Triangle Sheet Metal Company
(Triangle). An order consolidating cases and a complaint
issued on November 15, 1988, and an amended complaint
issued on December 12, 1988. The complaint as amended al-
leges that Sheet Metal Workers International Association,
Local Union No. 9 (the Union) violated Section 8(b)(1)(B)
and (3) of the National Labor Relations Act.
Issue
The Union interpreted certain collective-bargaining agree-
ments with the Charging Parties (Triangle, Concord, and
Pueblo) to include an ‘‘interest arbitration’’ clause so as to
give an industry joint board power to set the terms of new
contracts with those employers. The ultimate issue in this
case is whether the Union refused to bargain in violation of
Section 8(b)(3) and restrained or coerced the Charging Par-
ties in the selection of their bargaining representatives in vio-
lation of Section 8(b)(1)(B) of the Act by obtaining an award
setting forth a new collective-bargaining agreement from the
Joint Board, by grieving the failure of the Charging Parties
to obey that award, and by counterclaiming in a Federal dis-
trict court action to reform the prior contract. A preliminary
question is whether any of the Charging Parties had agreed
to the ‘‘interest arbitration.’’
All parties were given full opportunity to participate, to in-
troduce evidence, to examine and cross-examine witnesses,
to argue orally, and to file briefs. Briefs, which have been
carefully considered, were filed on behalf of the General
Counsel, the Charging Parties, and the Union.
On the entire record of the case and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. JURISDICTION
Concord, a corporation with an office and place of busi-
ness in Aurora, Colorado, is engaged in the purchase, fab-
147SHEET METAL WORKERS LOCAL 9 (CONCORD METAL)
rication, installation, and selling of services in connection
with various sheet metal products. It annually receives goods
and services valued in excess of $50,000 directly from points
outside the State of Colorado and it annually sells and ships
goods and services valued in excess of $50,000 directly to
other enterprises within Colorado which are directly engaged
in interstate commerce. Pueblo, a corporation with an office
and place of business in Pueblo, Colorado, is engaged in
sheet metal construction. It annually purchases and receives
goods and services valued in excess of $50,000 directly from
points outside the State of Colorado and annually sells and
ships goods and services valued in excess of $50,000 directly
to other enterprises within Colorado which are directly en-
gaged in interstate commerce. Triangle, a corporation with an
office and place of business in Arvado, Colorado, is also en-
gaged in sheet metal construction. It annually purchases and
receives goods and services valued in excess of $50,000 di-
rectly from outside the State of Colorado and annually sells
and ships goods and services valued in excess of $50,000 di-
rectly to other enterprises within Colorado which are directly
engaged in interstate commerce. Concord, Pueblo, and Tri-
angle are employers engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
The Charging Parties are employers engaged primarily in
the building and construction industry and the Union is a
labor organization in which building and construction em-
ployees are members within the meaning of Section 8(f) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and the Associations’ Dealings with
the Union
The Sheet Metal and Air Conditioning Contractors Na-
tional Association, Colorado Chapter (SMACNA, Colorado,
or the Association) is an organization composed of various
employers. It exists in part for the purpose of representing
those of its employer-members, who have designated it to do
so, in negotiating and administering collective-bargaining
agreements with various labor organizations including the
Union. The Association has a number of members who have
not designated the Association as their collective-bargaining
representative. Those members are not part of a multiem-
ployer collective-bargaining unit and they can be bound by
union contracts only by their signing of ‘‘me too’’ contracts
or by individual bargaining. As it set forth in more detail
below, at the critical times herein, the Charging Parties had
not authorized the Association to bargain for them in the
multiemployer bargaining unit and they were not bound by
any agreement in such a unit. However it is necessary to fol-
low the course of Association bargaining in order to under-
stand how the Charging Parties fit into the picture.
The relevant history began in 1981 when the Association
and the Union entered into a May 1, 1981–June 30, 1983
collective-bargaining agreement. That agreement contained a
clause known as article 10, section 8 which provided for in-
terest arbitration. It provided that in the event that negotia-
tions for renewal of the agreement became deadlocked, a dis-
pute resolution mechanism was to be invoked which cul-
minated in the setting of new contract terms by a national
joint adjustment board (Joint Board or the NJAB). A unani-
mous decision of that board was to be final and binding on
the parties, who were to reduce the award to writing and sign
it. The contract provided that there was to be no strike or
lockout unless and until the board failed to reach a unani-
mous decision. Under the procedural rules of the Joint Board
a quorum required an equal number of management and
union members.
In early 1983, before the 1981–1983 contract expired, the
Association and the Union were bargaining for a new con-
tract. During those negotiations the Association took the po-
sition that interest arbitration was a nonmandatory subject of
bargaining. On that basis, the Association refused to discuss
interest arbitration and notified the Union that it would not
accept any new contract that contained the provisions of arti-
cle 10, section 8. The parties did not reach agreement on a
new contract and the Union submitted the dispute for interest
arbitration to the Joint Board under article 10, section 8 of
the 1981–1983 agreement.
In an award dated July 15, 1983, the Joint Board directed
the parties to enter into a 3-year agreement, effective July 1,
1983, containing certain changes in wages and other condi-
tions of employment. The parties were directed to implement
the A-3-83 standard form of union agreement ‘‘with the ex-
ception of Article 10, Section 8.’’ The award provided for
a reopener for economic issues on July 1, 1984, and July 1,
1985. However, near the end of the award there was a provi-
sion that certain economic packages were to be put into ef-
fect at the expiration date of the agreement unless the matters
were resolved by negotiations or by the Joint Board under
article 10, section 8. From the time the award was received
the Association took the position that article 10, section 8
was eliminated and that there was no interest arbitration.
Shortly after the award issued, the Union’s business man-
ager, William Stephens, agreed with one of the Association’s
negotatiators, Steve Larson, that article 10, section 8 was not
part of the new contract. However over the next few months
Stephens changed his position and argued that article 10, sec-
tion 8 still applied but only to the wage reopener that was
scheduled for 1984 and 1985. The Association and the Union
were in disagreement as to a number of the provisions of the
award, and clarification was asked from the Joint Board on
several occasions. On August 10, 1983, the Joint Board
issued a clarification of its July 15, 1983 award. The clari-
fication stated that it was the intention of the Joint Board that
the A-3-83 standard form union agreement would be imple-
mented in its entirety with the exception of section 8, article
10, and that no other changes in the existing agreement ex-
cept for those agreed on locally were directed.
The Union and the Association executed a July 1, 1983–
June 30, 1986 agreement to which the Joint Board awards
were annexed. That agreement deleted article 10, section 8
in its entirety.
Though the Union claimed at one time that article 10, sec-
tion 8 still applied to the 1984–1985 wage reopeners, there
is no contention by anyone that the Union-Association con-
tract which was to expire in 1986 and which was extended
through part of 1987 contained any interest arbitration provi-
sion that would apply to a new contract in 1987. Even the
Union’s contention that article 10, section 8 did apply to the
1984–1985 reopener is moot because the Association and the
148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union worked out their differences in 1984 and 1985 and no
interest arbitration was called for.
On May 3, 1985, the Union and the Association, pursuant
to the reopener for economic issues, executed an agreement
under which certain economic conditions of the 1983–1986
contract were changed and that contract was extended for
one full year so as to expire June 30, 1987. Subsequently,
a revised contract (the green book) for July 1, 1983–June 30,
1987, was printed. It contained all the agreed-upon terms. As
indicated, it did not contain any provision for interest arbitra-
tion.
The 1983–1987 contract contained a ‘‘preferential clause’’
as had the predecessor agreements. That clause provided that
the Union agreed, with exceptions not applicable here, that
if it gave any other employer in the sheet metal industry bet-
ter terms or conditions than set forth in the Union-Associa-
tion agreement, such terms or conditions would be made
available to the employer for all jobs in Colorado and that
the Union would immediately notify the employer of any
such concessions.
B. Concord’s Bargaining History
Concord was a member of the Association but had not au-
thorized the Association to bargain for it. Concord was not
part of the multiemployer bargaining unit. It did however
sign a letter of understanding under which it became bound
by the terms of the 1981–1983 agreement. Concord did not
assign bargaining rights to anyone in 1983 and the Union
never contacted Concord in 1983 to open negotiations for a
new contract.
On about August 25, 1983, Concord received a letter from
the Union which was addressed to all contractors signatory
with the Union. The letter stated that the Union was pre-
senting for Concord’s signature a new contract ‘‘which con-
tains the changes agreed to with Colorado SMAC, the
changes ordered by the NJAB and remaining unchanged pro-
visions from the 1981–1983 agreement.’’ The letter also stat-
ed that there were differences between the Union’s and the
Association’s interpretation of the Joint Board award and that
the enclosed contract contained the Union’s interpretation of
those disputed issues. The letter went on to state that if any
differences with the Association were resolved in the con-
tractors’ favor, Concord would be entitled to implement them
under the favored nations clause of the agreement. Annexed
to the letter was the ‘‘Standard Form of Union Agreement
(A-3-83),’’ as well as the Joint Board award and its clarifica-
tion. A truncated version of article 10, section 8 appeared in
the contract which the Union was asking Concord to sign.
It provided ‘‘any controversy or dispute arising out of the
failure of the parties to negotiate the wage reopener this
agreement shall be settled as herein provided.’’ The agree-
ment went on to provide for negotiations for ‘‘reopening of
this agreement.’’ However the contract language ended
abruptly so as to become meaningless with regard to ‘‘inter-
est arbitration.’’
As is set forth above the Union and the Association signed
the 1983–1986 agreement which deleted article 10, section 8
in its entirety. On November 15, 1983 Union Business Man-
ager William Stephens wrote to ‘‘All Union Sheet Metal
Contractors Whose Bargaining Rights are not held by
SMACNA-Colorado,’’ including Concord. The letter stated
that on November 14, the contract was signed between the
Union and the Association, that bargaining rights for Con-
cord were not held by the Association and that ‘‘Local No.
9 will be approaching you to sign the same agreement on an
individual basis that was negotiated with SMACNA-Colo-
rado.’’
A few days after the November 15, 1983 letter was re-
ceived by Concord, Union Business Representative Ronald
Halvorson left a union contract with Rudy Tezak, the presi-
dent of Concord. In reading the contract, Tezak saw that it
contained an article 10-8 provision relating to ‘‘the wage re-
opener’’ and the same language as the contract he received
on August 25, 1983. He wrote ‘‘out’’ next to article 10, sec-
tion 8. Sometime later Halvorson came by to pick up the
contract and they discussed it. Halvorson asked why Tezak
had written ‘‘out’’ on article 10, section 8 and Tezak replied
that he did so because there was no article 10, section 8 in
the contract. Halvorson replied that the contract provision re-
lated only to the wage reopener. Tezak said ‘‘fine’’ and
signed two copies of the contract. The one he kept in his
possession had ‘‘out’’ written on article 10, section 8. The
other, which Halvorson brought with him and the Union
kept, did not have the ‘‘out’’ notation, but as Halvorson stat-
ed to Tezak, it was clearly limited to wage reopeners. On its
face, it had no application to a new contract at the expiration
of the old one.
The findings with regard to the conversation between
Halvorson and Tezak are based on the credited testimony of
Tezak. Halvorson’s version of the conversation was totally
unbelievable. He averred that he told Tezak that he
(Halvorson) had brought the article 10, section 8 contract and
it was the same one that Tezak had been living with for the
last few years without any problems. Halvorson averred that
Tezak then signed the contract. Halvorson acknowledged in
his testimony that he had read the contract he was proposing
to Tezak and that that contract contained the reopener lan-
guage. He also acknowledged that he knew that the Union
had taken the position that the interest arbitration affected
only the wage reopener. He testified that to him the wage
reopener language included renegotiation of the entire con-
tract at its conclusion, and that there were two contracts
being circulated, one that spoke of the wage reopener and the
other that eliminated article 10, section 8 in its entirety. His
testimony was so internally inconsistent and his testimonial
demeanor was so unconvincing that I am unable to credit any
of his testimony.
William Stephens, the Union’s business manager, testified
that in late August 1983, when he decided to start signing
up the contractors who would not give an authorization to
the Association, he instructed Business Representative Leroy
Gauthier to put together a contract for the independents that
contained the same language as the Association agreement
except that article 10, section 8 was to be included. He
averred that he told Gauthier to include article 10, section 8
so as to cover wage reopeners as well as renewal of the
agreements. He further averred that he never checked back
to see whether Gauthier had followed his instructions until
a problem arose at a later time. Even if those instructions
had been given to Gauthier, the contractors would not be
bound by them when the contract they signed either elimi-
nated article 10, section 8 or limited it to wage reopeners.
However I do not believe that Stephens was a credible wit-
ness and I am unable to give any weight to his testimony.
149SHEET METAL WORKERS LOCAL 9 (CONCORD METAL)
1 Steve Larson, who was chief spokesman for the Association in the 1983
negotiations, testified that the Association had an assignment of bargaining
rights from Triangle in 1983 but that he could not produce it. However, Thom-
as Kulas, the president of Triangle, testified that Triangle did not assign bar-
gaining rights to the Association in 1983. Kulas’ recollection was more likely
to be accurate than Larson’s, particularly where, as here, Kulas’ testimony was
against his own interest. If he had been part of the multiemployer bargaining
unit in 1983, he clearly would have been bound by the Association contract
that eliminated art. 10, sec. 8.
Stephens was the same man who wrote to ‘‘All Union Sheet
Metal Contractors Whose Bargaining Rights are not held by
SMACNA-Colorado’’ to tell them that they would be ap-
proached to sign the same agreement on an individual basis
that had been negotiated with SMACNA-Colorado. That con-
tract did not contain any article 10, section 8 provision and
the Union never even claimed that such an article could
apply to anything but a wage reopener. Yet Stephens asked
us to believe that he told his business agent to draft a con-
tract for the independents containing a full article 10, section
8 clause. He was not credible. The 1983–1986 contract that
Concord signed did not have any interest arbitration provi-
sion that would be applicable at the end of the contract and
neither Concord nor the Union intended that it should have.
After the Union and the Association reached agreement on
the 1985 contract reopener, which changed some of the eco-
nomic terms of the contract and extended it to June 30, 1987,
Union Business Manager Stephens sent that agreement to-
gether with a covering letter to all the sheet metal contractors
including Concord asking them to sign. The covering letter
stated that a new collective-bargaining agreement complete
with all languages and wages would be forthcoming in the
near future. Concord signed the extension agreement on June
18, 1985. Subsequently the Union sent Concord the green
book, which contained all the terms of the July 1, 1983–June
30, 1987 agreement. As noted above the green book did not
contain any provision for interest arbitration. Article 10, sec-
tion 8 had been deleted in its entirety.
By letter dated January 6, 1987, Concord confirmed the
fact that the Association did not have any authority to bar-
gain for it, by sending a letter to the Association and a copy
to the Union stating that Concord would bargain on an indi-
vidual basis and not as part of any multiemployer group.
Representatives of Concord met with the Union on June
5 and 19, 1987, for individual negotiations. At the June 19
meeting Union Representative Dale Swartz said that Concord
was bound by article 10, section 8 of the original contract.
Rudy Tezak, Concord’s president, denied that the Company
was so bound and he sent Swartz a copy of the agreement
that he had signed. As noted above, one copy of that 1983–
1986 agreement had a notation that article 10, section 8 was
out and the other copy had a truncated version which was
specifically limited to wage reopeners and had no application
to a new agreement at the expiration of the contract.
On July 1, 1987, Concord sent the Union a letter stating
that its contract with the Union expired on June 30, 1987;
that notice of the contract termination was timely served; that
the Union was never certified by the Board; and that the
Company never voluntarily recognized the Union pursuant to
Section 9(a) of the Act as representing a majority of its em-
ployees. The letter went on to state: ‘‘pursuant to John
Deklawa & Sons, 282 NLRB No. 184 (1987), our company
has no obligation to bargain for a successor agreement or
otherwise engage in collective bargaining with your labor or-
ganization. Any bargaining obligation which may have ex-
isted prior to the termination of our collective-bargaining
agreement is hereby repudiated.’’
In August 1987 the Union filed a petition for an election.
The election was held and the Union was certified on Sep-
tember 10, 1987, as the exclusive collective-bargaining rep-
resentative of Concord’s shop and field employees. After the
Union was certified, it had four or five bargaining sessions
with Concord but no agreement was reached.
C. Triangle’s Bargaining History
Triangle’s bargaining experiences with the Union were
very similar to those of Concord. Triangle was a party to the
1981–1983 contract on an individual basis. Though it was a
member of the Association, Triangle did not assign bar-
gaining rights to the Association in 1983 nor did it sign an
interim agreement agreeing to be bound by future contracts.1
Some time before late August 1983, the Union delivered
to the Triangle office a proposed contract that contained a
full article 10, section 8 clause.
In late August or early September 1983, the Union deliv-
ered another proposed contract to Triangle. It contained the
truncated article 10, section 8 language and limited the appli-
cation of that clause to wage reopeners. It was the same lan-
guage that had been proposed to Concord. Accompanying
this proposed contract was the August 25, 1983 letter to ‘‘all
contractors’’ which stated that those contractors were being
asked to sign a new contract which contained the changes
agreed to with the Association, the changes ordered by the
Joint Board and remaining unchanged provisions from the
1981–1983 agreement. There was also reference to the most-
favored-nations clause in the event that any disagreements
were resolved in favor of the Association. Attached to the
letter and contracts were copies of the Joint Board awards.
The Union sent Triangle the November 15, 1983 letter
which said that the Association contract was signed on No-
vember 14, 1983; that the Association did not hold Tri-
angle’s bargaining rights; and that the Union would be ap-
proaching Triangle to sign the same agreement on an indi-
vidual basis that was negotiated with the Association.
On about December 12, 1983, Thomas Kulas, the presi-
dent of Triangle, had a conversation with Union Business
Representative Leroy Gauthier in which they discussed the
two different contracts. Gauthier told Kulas that the contract
with the attachments was the correct one, that is the one with
the truncated article 10, section 8 and the reference to wage
reopener. Kulas wrote ‘‘void’’ on the proposed contract that
contained the full article 10, section 8 clause and then signed
the other contract. There is nothing in the 1983–1986 con-
tract that Triangle signed that would bind Triangle to interest
arbitration at the end of that contract. The evidence clearly
establishes that the parties did not intend article 10, section
8 to apply to such a situation.
On March 21, 1984, Triangle executed a conditional ap-
pointment of bargaining rights for the 1984–1985 wage re-
opener which arguably put Triangle in the multiemployer
unit. However, under that appointment Triangle retained the
right to refuse to be bound by any contract the Association
negotiated. At the time, the Union accepted the conditional
appointment. However, the contract extension that Triangle
signed was the same as the one signed by Concord and
150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Prior to that time some contractors had signed a conditional grant of bar-
gaining rights that was somewhat confusing and which allowed the individual
employer to reject any agreement. The Union refused to accept that conditional
designation for the 1987 negotiations. Bargaining from that point on was on
an individual basis even though the Association’s labor committee represented
many of those individuals.
3 The above findings are based on the credited testimony of Darrell Haun.
To the extent that Easom’s testimony differed from that of Haun, I do not
credit Easom. His testimony that he did not know until the day of the trial
that there were any contracts in which ‘‘wage reopener’’ was written into art.
10, sec. 8 was completely incredible.
Pueblo, both of whom were clearly in individual bargaining
units. Thereafter the Union rejected all conditional assign-
ments and still later, as indicated in a January 1987 letter to
the Association and the Union, Triangle withdrew the condi-
tional agreement. If Triangle left the single employer unit to
become part of the multiemployer unit, it returned to the sin-
gle employer unit well before the Union sought to institute
the 1987 Joint Board procedures described below.
After the Association and the Union agreed to the changes
in economic benefits and the contract extension in 1985, Tri-
angle received the letter sent to all contractors asking them
to execute the new agreement. That letter stated that a new
collective-bargaining agreement complete with all language
and wages would be forthcoming in the near future. Triangle
signed the agreement on June 19, 1985, and subsequently the
Union sent Triangle a copy of the green book, the complete
July 1, 1983–June 30, 1987 contract. That contract did not
contain article 10, section 8 and had no provision for interest
arbitration.
On March 16, 1987, the Association’s labor committee
wrote to the Union stating that a number of contractors de-
sired the labor committee to represent them on an individual
basis.2 Triangle was one of the contractors who bargained in-
dividually through the Association’s labor committee as its
agent. The same was true for Pueblo. In the early part of
June 1987 Union Business Manager Stephens told Steve
Larson, who was representing the individual contractors, that
the Union would be taking a group of contractors to the Joint
Board via article 10, section 8. By letter dated June 12, 1987,
the Association’s labor committee on behalf of the individual
contractors including Triangle and Pueblo, rejected the
Union’s claim that some of the employers were bound by ar-
ticle 10, section 8. The letter stated that the contractors were
exercising their right under the preferential clause to adopt
the grievance procedure in the Association contract which
deleted article 10, section 8. The letter also stated that the
employers specifically rejected any form of interest arbitra-
tion and specifically refused to adopt any form of interest ar-
bitration. The Union responded with a letter dated June 15,
1987. That letter acknowledged that the contractors had the
right to invoke the preferential clause and institute a new
grievance procedure as of the date the Union received the
June 12, 1987 letter. The letter went on to state that the
Union invoked article 10, section 8 on June 2, 1987, at
which time article 10, section 8 was put into effect. The
Union also stated that it intended to follow through with the
interest arbitration provision of the contract.
By letter dated July 1, 1987, Triangle repudiated its 8(f)
bargaining relationship with the Union. The text of the letter
was the same as the one that Concord had sent to the Union.
The Union filed a petition for an election, the election was
held and on August 26, 1987, the Board certified the Union
as the exclusive collective-bargaining representative of the
shop and field employees of Triangle. Thereafter bargaining
sessions were held but no agreement was reached.
D. Pueblo’s Bargaining History
Like Concord and Triangle, Pueblo was bound by the
1981–1983 contract on an individual basis. On August 25,
1983, after the Union and the Association had reached agree-
ment on the 1983–1986 agreement, Pueblo received from the
Union the same letter the other contractors did which stated
in part: ‘‘We are presenting for your signature a new contract
which contains the changes agreed to with Colorado SMAC,
the changes ordered by NJAB and remaining unchanged pro-
visions from the 1981–1983 agreement.’’ The letter noted
that there were differences of opinion between the Associa-
tion and the Union and if the contractors’ interpretation was
sustained, Pueblo would be entitled to implement the changes
under the most-favored-nations clause. The Joint Board
awards and the proposed contract accompanied the letter.
The proposed contract contained the truncated article 10, sec-
tion 8 provision which was limited to the wage reopener. It
is the same contract that Triangle signed. It incorporated the
Union’s position that the Joint Board award permitted inter-
est arbitration for the 1984–1985 wage reopener but for noth-
ing else.
That contract was received by Pueblo on about August 25,
1983. On September 13, 1983, Union Business Representa-
tive Ed Easom went to the Pueblo shop and spoke to Darrell
Haun who was secretary-treasurer of Pueblo. Darrell Haun
did not ordinarily deal with labor relations for that Company.
Eason said that he was there making the rounds of the town
and he had to have the contract signed right away. He spoke
of pulling the men if it was not signed. There was no discus-
sion about the terms of the contract and Haun did not com-
pare the contract that Eason brought with him with the one
that the Company had been given on August 25. Haun
signed two copies of the contract that Easom had with him
and Easom took one away. That contract was substantially
different than the one that the Union had sent Pueblo on Au-
gust 25. The contract that Haun signed contained a full arti-
cle 10, section 8 clause which bound the parties to interest
arbitration at the expiration of the contract.3
It is apparent that the Union was either perpetrating a
fraud or was making a mistake when it obtained Haun’s sig-
nature on the 1983–1986 contract. A short time before, the
Union had offered Pueblo the same contract that the Union
had agreed to with the Association. The Joint Board award,
which was incorporated in that agreement, made it clear that
there would be no interest arbitration at the expiration of the
1986 contract. The Union sent Pueblo a copy of a proposed
contract which gave the Union’s interpretation of the Joint
Board award to the effect that interest arbitration did apply
to the wage reopener. The term ‘‘wage reopener’’ was writ-
ten into the proposed contract. A short time later a union
representative spoke of pulling the men and fast-talked a
company representative who was inexperienced in labor rela-
tions into signing a contract which the company representa-
tive had every reason to believe was the same as the one that
had been previously sent to the company by the Union. As
I am reluctant to find any improper motives, I will simply
151SHEET METAL WORKERS LOCAL 9 (CONCORD METAL)
4 The mistake appears to be similar to the one made with Triangle. There,
the Union left a proposed contract containing the full art. 10, sec. 8 but there-
after Union Business Representative Gauthier told Triangle that that first pro-
posed contract was wrong and a new one was substituted for it. The new one
contained the truncated art. 10, sec. 8 provision limited to wage reopeners. An-
other independent contractor, Frontier Heating, had a similar experience. In
1983 Union Business Representative Gauthier left a proposed contract with
Frontier that included a full art. 10, sec. 8. Frontier signed the contract. Some-
time later, Gauthier came back and said that he had another contract with him
and they were to void the first contract. The second contract had the truncated
article 10, section 8 clause which was limited to the wage reopener. Gauthier
wrote ‘‘void’’ on the first contract and said that article 10, section 8 was out.
assume that Easom did not know what he was doing and
made a mistake.4 However that mistake was corrected by the
subsequent actions of the parties.
After the Union and the Association reached agreement on
the wage reopener in 1985, Union Business Manager Ste-
phens sent a copy of that extension agreement to Pueblo and
the other independent contractors. The agreement was ac-
companied by a covering letter which solicited the contrac-
tors to sign the extension agreement. The letter made it clear
that the contractors, by signing the extension agreement,
would be agreeing to an extension of the terms of the Union-
Association agreement. If there was any doubt, it was re-
solved by the last paragraph of the letter which stated ‘‘A
new Collective Bargaining Agreement complete with all lan-
guage & wages will be forth-coming from this office in the
near future.’’ That new collective-bargaining agreement was
forthcoming. It was the green book which was the July 1,
1983–June 30, 1987 Union-Association agreement. A copy
was sent to Pueblo. That was the contract that the Union of-
fered Pueblo in 1985 and the contract that Pueblo accepted
by signing the extension agreement in 1985. In effect the
sloppy handling of the 1983–1986 contract by the Union was
corrected in 1985 when the parties made it clear that Pueblo
was bound by the terms of the 1983–1987 agreement be-
tween the Union and the Association. That agreement did not
contain article 10, section 8 nor did it contain any provision
that would bind the parties to interest arbitration. At the very
least, from 1985 on, Pueblo had no obligation to accept inter-
est arbitration.
As noted in the discussion relating to Triangle, Pueblo au-
thorized the Association to act as its agent in individual bar-
gaining with the Union; the Union informed the Association
that it was about to invoke article 10, section 8 with regard
to some contractors; the Union invoked the most-favored-na-
tions clause of the contract; and the Union took the position
that the Association was too late because the Joint Board
provisions had already been invoked.
By letter dated January 15, 1987 Pueblo notified the Asso-
ciation and the Union that Pueblo canceled any assignment
of bargaining rights to the Association and intended to bar-
gain on an individual basis and not as part of any multiem-
ployer group.
On July 16, 1987, Pueblo sent the Union a letter repudi-
ating its 8(f) bargaining relationship under John Deklawa &
Sons, 282 NLRB 1375 (1987). From that time Pueblo has
operated nonunion and has not recognized the Union as the
representative of its employees. There have been no negotia-
tions since July 16, 1987, and, unlike the situation with Con-
cord and Triangle, the Board has not certified the Union as
the representative of Pueblo’s employees.
E. The Union’s Attempts to Enforce the Interest
Arbitration Provisions
On June 2, 1987, the Union sent a telegram to a number
of independent contractors including Concord, Triangle, and
Pueblo stating that the Union was requesting the services of
the Joint Board.
On July 10, 1987, the Union wrote the Joint Board claim-
ing that contractors including Concord, Triangle, and Pueblo
were bound by article 10, section 8 and requesting the Joint
Board’s services.
On July 20, 1987, Stettner, Miller & Cohn, P.C., a law
firm representing a number of independent contractors in-
cluding Concord, Triangle, and Pueblo, wrote to the Union
and to the Joint Board. The letter stated that the Joint Board
had no authority or jurisdiction to issue an award; that the
Union had fraudulently sought to secure the jurisdiction of
the Joint Board; and that for a number of reasons the con-
tractors were not bound by article 10, section 8 and that any
award by the Joint Board under that provision would be
void. The letter also stated that the contractors were consid-
ering a suit in the Federal district court to seek an injunction.
On November 12, 1987, the Joint Board issued three deci-
sions. Those decisions found that Concord, Triangle, and
Pueblo were bound to the interest arbitration procedures. The
three decisions all said:
The parties shall execute a collective bargaining
agreement identical to that referred to in the home area
as ‘‘X-10’’ with the exception that Article X, Section
8 will be deleted.
It is not the intent of the NJAB to impose any non-
mandatory subjects of bargaining upon an unwilling
party. In the event the National Labor Relations Board
or any court having jurisdiction over the matter deter-
mines that any provision of the agreement imposed by
the NJAB herein is a non-mandatory subject of bar-
gaining to which a party objected, that provision will
be deleted, and the parties, in that event are directed to
enter into negotiations to replace the deleted provision
with one that is a mandatory subject of bargaining. In
the event the parties cannot agree on a replacement for
the non-mandatory provision, the NJAB retains jurisdic-
tion to resolve that issue.
None of the Charging Parties executed a collective-bar-
gaining agreement as called for by the Joint Board award.
Thereafter the Union filed and prosecuted grievances
against Concord, Triangle, and Pueblo on the grounds that
those employers had failed to comply with the Joint Board
award. The Joint Board, who heard the grievances, found in
favor of the Union. Concord, Triangle, and Pueblo were or-
dered to begin complying with the union agreement and were
assessed $5000 each as penalties for violations. The awards
provided that the $5000 penalties were suspended provided
all arrearages due employees and fringe benefits were paid
within 30 days. The decisions were sent to Pueblo on De-
cember 15, 1987, and to Concord and Triangle on January
28, 1988.
Thereafter Concord, Triangle, and Pueblo along with other
contractors brought suit in the Federal District Court for the
District of Colorado (Civil Action 87–C–1074), to set aside
the Joint Board award. The Union counterclaimed with re-
152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The pleadings before the district court were not introduced in evidence in
this case. The Union admitted in its answer that it sought to reform Concord’s
and Triangle’s collective-bargaining agreements and the attorney for the Union
acknowledged on the record that the Union filed a motion to confirm the arbi-
tration awards.
6 The Union’s contention that the Board should defer to the Joint Board
award is without merit. Even if the other criteria set forth in Olin Corp., 268
NLRB 573 (1984), are met, the Board will not defer in the absence of a bind-
ing arbitration procedure. ‘‘The Board’s policy of deferral to arbitration is
predicated upon the availability of contractual arbitration procedures.’’ Atlas
Tack Corp., 226 NLRB 222, 228 (1976), enfg. 559 F.2d 1201 (1st Cir. 1977).
7 With regard to the district court action, the complaint in the instant case
is limited to alleging a violation of the Act through the Union’s attempt to
reform the 1983–1987 collective-bargaining agreement to include the interest
arbitration procedure of art. 10, sec. 8. However that attempt to reform the
contract is meaningful only in connection with the parallel attempt in the dis-
trict court to enforce the arbitration award. If the General Counsel succeeds
in preventing the Union from making its argument before the district court
with regard to the contract reformation issue, in large measure the General
Counsel will also be preventing the Union from meaningfully arguing the arbi-
tration award confirmation issue before the district court.
gard to Concord and Triangle, and prayed for judgment
against Concord and Triangle to reform their 1983–1987 col-
lective-bargaining agreements to include the interest arbitra-
tion procedure of article 10, section 8. The Union also filed
a motion to confirm all the arbitration awards.5
F. Analysis and Conclusions
As is set forth in detail above, none of the Charging Par-
ties agreed that they would be bound by interest arbitration
at the expiration of the 1983–1987 contract. As interest arbi-
tration is consensual in nature, and there was no consent in
this case, the Joint Board had no jurisdiction or authority to
bind the Charging Parties to a new contract. The Joint Board
awards were nullities.6 Obviously I disagree with the Union’s
interpretation of the 1983–1987 contract. However the ulti-
mate question for me is whether the Union violated Section
8(b)(1)(B) and 8(b)(3) of the National Labor Relations Act
by seeking to put into effect its interpretation of the contract
through the interest arbitration procedure before the Joint
Board, the grievance procedure, and its district court counter-
claim.7 For the reasons set forth below, I am unprepared to
find that the Union violated the Act by its use of the Joint
Board, grievance, and court proceedings.
The General Counsel contends that the Union’s use of the
Joint Board, grievance procedure and court proceedings con-
stitutes an attempt to force the Charging Parties to accept the
Joint Board as its bargaining agent in violation of Section
8(b)(1)(B) of the Act and that by its actions the Union re-
fused to bargain in violation of Section 8(b)(3) of the Act.
Interest arbitration is a nonmandatory subject of bargaining
and a union may not insist to the point of impasse on interest
arbitration in a new contract or use an interest arbitration
clause in an existing contract to perpetuate that clause in a
new contract (a self-perpetuating interest arbitration system).
Sheet Metal Workers Local 263 (Sheet Metal Contractors),
272 NLRB 43 (1984); Sheet Metal Workers Local 59, 227
NLRB 520 (1976). However it does not follow that the en-
forcement of an interest arbitration provision contained in an
old contract, as to mandatory subjects of bargaining, con-
stitutes a violation of the Act where the interest arbitration
provision is not carried over into the new contract. In Sheet
Metal Workers Local 263, supra, the Board considered the
same article 10, section 8 clause as is present in the instant
case. The Board adopted the decision of the administrative
law judge which held:
Interest arbitration generally, and the clause involved
here specifically, have been held a nonmandatory sub-
ject of bargaining. However, parties may agree to inter-
est arbitration and within limit, such is enforceable.
That limit is the subject matter which the parties agree
to arbitrate. Thus in NLRB v. Sheet Metal Workers,
Local 38, 575 F.2d 394 (2d Cir. 1978), enfg. 231
NLRB 699 (1977), insistence to impasse on a clause
substantially identical to the one here was violative of
Section 8(b)(1)(B) and (3). The court, went on to note
that while interest arbitration of mandatory subjects is
permissible, although not itself a mandatory subject of
bargaining, interest arbitration as to nonmandatory sub-
jects ‘‘is void as contrary to public policy.’’
And in Sheet Metal Workers Local 14 v. Aldrich Air
Conditioning. 717 F.2d 456 (8th Cir. 1983), the court
held that interest arbitration may not itself be the sub-
ject of arbitration lest the bargaining system be self-
perpetuating. ‘‘[A]n interest arbitration clause is unen-
forceable insofar as it applies to the inclusion of a simi-
lar clause in the new collective bargaining agreement.’’
717 F.2d at 459.
To summarize, interest arbitration is a nonmandatory
subject of bargaining which, even if agreed to, is unen-
forceable insofar as it purports to resolve the inclusion
of an interest arbitration in a successor collective-bar-
gaining agreement. Parties may agree to arbitrate dis-
putes arising during the course of negotiations but those
agreements are binding and enforceable only to the ex-
tent that mandatory subjects are resolved. While the
parties may arbitrate nonmandatory subjects, for such
does not appear unlawful, either party may, with impu-
nity, withdraw from the proceeding at any time.
Thus here, article X, section 8 of the expiring collec-
tive-bargaining agreement was valid and enforceable
only as to mandatory subjects of bargaining. The Union
could not enforce this clause against the Council as to
nonmandatory subjects including the Council’s refusal
to include it in a successor collective-bargaining agree-
ment.
Here the Joint Board awards specifically excluded the inter-
est arbitration clause from the new contract and stated that
it was not the intent of the Joint Board to impose any non-
mandatory subjects of bargaining on an unwilling party. A
procedure was set forth for deleting parts of the new agree-
ment that dealt with nonmandatory subjects. The new con-
tract as a whole dealt with wages, hours, and other condi-
tions of employment. Key matters such as an interest arbitra-
tion clause were omitted and nonmandatory subjects such as
the industry promotion fund were merely incidental. Such
provisions cannot prevent enforcement of the remainder of
the contract. The nonmandatory matters ‘‘do not involve
issues so fundamental to the new agreement that the entire
contract must be voided.’’ Sheet Metal Workers Local 206
v. R. K. Burner Sheet Metal, 859 F.2d 759, 761 (9th Cir.
1988). In that case the Ninth Circuit considered the question
of the enforceability of a Joint Board award under cir-
cumstances that were very similar to the ones in the instant
153SHEET METAL WORKERS LOCAL 9 (CONCORD METAL)
8 In NLRB v. Sheet Metal Workers Local 38 (Elmsford), 575 F.2d 394, 400
(2d Cir. 1978), enfg. 231 NLRB 699 (1977), the court held the same Joint
Board that is involved in the instant case was a situs of negotiations rather
than an impartial adjudicative body; that interest arbitration was a nonmanda-
tory subject of bargaining; and that the Union could not take to impasse the
question of whether interest arbitration should be carried into the next contract.
9 The General Counsel’s contention finds some support in Electrical Work-
ers IBEW Local 194 (Cahn Electric), 285 NLRB 328 (1987). However in that
case the Board pointed out that exceptions were not filed as to any substantive
legal issues. The Board decision was therefore pro forma and the equivalent
of an adoption in the absence of exceptions with regard to the substantive
legal issues. As such it has no binding precedential value. As the instant case
does not involve an attempt to apply the interest arbitration provision of a con-
tract in a multiemployer bargaining unit (which is applicable only to employ-
ers in that bargaining unit) to an employer in an individual bargaining unit,
there is no need to resolve this issue. Here, whatever contracts were reached
with the Charging Parties were in individual bargaining units. There might
however be some reason to question the General Counsel’s underlying as-
sumption that there is something in interest arbitration that is antithetical to
the policies of the Act or that when an employer leaves a multiemployer bar-
gaining unit but carries with him the terms of the multiemployer contract the
interest arbitration provisions of that contract are automatically canceled. The
courts as well as the Board have long expressed preference for arbitration over
economic force in the resolution of labor disputes. A serious argument could
be made to the effect that interest arbitration that is voluntarily agreed to
should be actively encouraged rather than shackled by the Board. Industrial
peace, which is one of the objects of the Act, is certainly enhanced when the
parties agree on dispute resolving mechanisms, whether those mechanisms are
geared to contract interpretation during the life of the contract or to the resolu-
tion of disputes as to what a future contract should contain.
case, except for the one major difference that in the instant
case the Charging Parties never agreed to any interest arbitra-
tion provision in the expiring contract. The court found that
where an employer, on an individual basis, signed a contract
containing an interest arbitration provision, it was bound by
a Joint Board award based on that provision even though the
Joint Board arbitrator selection process could be disadvanta-
geous to employers outside of the Association. The Court
also held that the interest arbitration clause survived the expi-
ration of a collective-bargaining agreement.
The Union cannot insist to impasse on a nonmandatory
subject of bargaining such as interest arbitration.8 A party
may not insist to impasse that a third party make final deci-
sions with regard to new contract negotiations. Electrical
Workers IBEW Local 135 (La Crosse Electrical), 271 NLRB
250 (1984). However in the instant case the Charging Parties
and the Union had not agreed on any wages, hours, or other
terms or conditions of employment at the expiration of the
1987 contract. The Union did not insist to the point of im-
passe on an interest arbitration provision in the new contract
and the new contract put forth by the Joint Board did not
contain any such provision.
The Union may not lawfully attempt to force an employer
into or out of an association so as to include it or exclude
it from a multiemployer bargaining unit. That is not an issue
in this case. There is no indication that the Union has put
pressure on any of the Charging Parties to join a multiem-
ployer bargaining unit. The General Counsel argues that a
union violates the Act when it takes action to enforce an in-
terest arbitration provision, contained in a multiemployer bar-
gaining unit contract, against an individual employer after
that employer has withdrawn from the multiemployer bar-
gaining unit. However that is not the situation in the instant
case.9 Concord and Pueblo were individual employers in in-
dividual bargaining units. They were never part of any multi-
employer bargaining unit. Triangle also was never a part of
the multiemployer unit, except arguably for some period of
time after the 1985 extension and before that company with-
drew from the Association. When it executed the contract,
when the contract expired and when the Joint Board pro-
ceedings were taking place, Triangle was clearly in a single
employer bargaining unit.
The parties to a contract are free to rescind any nonmanda-
tory term of that contract at any time without violating the
refusal to bargain sections of the Act. Allied Chemical & Al-
kali Workers v. Pittsburgh Glass, 404 U.S. 157 (1971). It
does not follow however that a union violates 8(b)(3) or
8(b)(1)(B) of the Act when it seeks to enforce that non-
mandatory provision through non-Board litigation. Indeed in
Pittsburgh Glass, supra, the Supreme Court indicated that
such non-Board enforcement was quite proper. In that case
the company rescinded benefits of retired employees. The
high court held that such matters involved nonmandatory
subjects of bargaining and that the employer had not violated
Section 8(a)(5) of the Act. The Court then went on to say
(at p. 181): ‘‘The retiree, moreover, would have a Federal
remedy under Section 301 of the Labor Management Rela-
tions Act for breach of contract if his benefits are unilaterally
changed.’’ At another point the high Court stated (at p. 188)
that the Act does not require:
continued adherence to permissive as well as mandatory
terms. The remedy for unilateral mid-term modification
to a permissive term lies in an action for breach of con-
tract . . . not in an unfair-labor-practice proceeding.
Consistent with the Supreme Court case the Board has held
that contract clauses containing nonmandatory subjects can
be breached without violation of Section 8(a)(5) of the Act
even though court action can properly be sought to enforce
them. In Tampa Sheet Metal Co., 288 NLRB 322, 325
(1988), the Board applied that logic to a situation that in-
volved the same interest arbitration clause that is present in
the instant case. The Board held:
A. Refusal to Abide by NJAB Award
The issue is whether the Respondent violated Section
8(a)(5) and (1) of the Act by refusing to abide by the collec-
tive-bargaining agreement imposed by the NJAB pursuant to
the expiring agreement’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
nonmandatory subjects of bargaining. In Chemical
Workers v. Pittsburgh Plate Glass, 404 U.S. 157
(1971), the Supreme Court held that a unilateral modi-
fication of a contract term is ‘‘a prohibited unfair labor
practice only when it changes a term that is a manda-
tory rather than a permissive subject of bargaining.’’
404 U.S. 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.
Because interest arbitration is a nonmandatory sub-
ject of bargaining, the Respondent’s refusal to abide by
the contract imposed by the NJAB amounted to a repu-
diation of a nonmandatory term in the expiring collec-
154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 For examples of situations where the Board will find violations, see Han-
ford Atomic Metal Trades (Rockwell International), supra. See also Bill John-
son’s Restaurants v. NLRB, 461 U.S. 731 (1983).
11 The General Counsel’s case is beset by a number of other problems.
Pueblo withdrew recognition from the Union at the expiration of the 1983–
1987 contract as did Concord and Triangle. All three were construction indus-
try employers and the General Counsel does not contest the fact that they
could lawfully withdraw recognition at that time. Pueblo has had no dealings
with the Union since then and the other two employers continued their non-
recognition of the Union for some time until the Union was certified as the
bargaining representative of their employees. Apparently the General Counsel
has taken the position that the Union violated Sec. 8(b)(3) of the Act by refus-
ing to bargain with the employers even during times when the employers had
no duty to bargain with the Union because they had lawfully withdrawn rec-
ognition from the Union. That position is difficult to maintain in light of Sec.
8(d) of the Act which defines the duty to bargain in terms of the mutual obli-
gation of the employer and the labor organization. However, as the complaint
is being dismissed on other grounds, that issue need not be reached.
tive-bargaining agreement. Under Pittsburgh Glass,
supra, such conduct is not a violation of Section 8(a)(5)
and (1) of the Act. The remedy for such a repudiation
lies not with the Board, but with the courts in a breach
of contract proceeding. Indeed, the Union and the trust
funds here have already obtained court decisions order-
ing remedies for the Respondent’s conduct. Accord-
ingly, we conclude that the Respondent did not violate
Section 8(a)(5) and (1) of the Act by refusing to abide
by the contract imposed by the NJAB.
In that case the Board held that the remedy for the com-
pany’s repudiation of the contract imposed by the Joint
Board lay with the courts in a breach of contract proceeding.
Yet in the instant case the General Counsel is contending
that the Union violated the Act by seeking such a remedy.
It could be argued that access to the courts should have
greater protection than access to arbitration. However where
the court action is to enforce an arbitration award, the two
are inseparably connected. If access to the arbitration proce-
dure is precluded, then Court action to enforce an arbitration
award is effectively barred because there can be no award to
enforce. I believe that the logic of that case requires that the
complaint in the instant case be dismissed.
Moreover, as a general proposition, the Board exercised
extreme caution in limiting access to grievance and court
proceedings. The Board has limited access to grievance and
court proceedings where it was found necessary to protect
access to its own processes; where it was necessary to pre-
serve the integrity of its bargaining unit determinations; and
in situations where the claimant sought to compel an act
which was directly and in itself unlawful. Hanford Atomic
Metal Trades Council (Rockwell International), 291 NLRB
418 (1988). None of those situations are present in the in-
stant case. Here the Union seeks to enforce its interpretation
of the contract through the grievance procedure and the
courts. The Union was not seeking to compel an act which
was directly and in itself unlawful.10
Two other recent Board cases also indicated the Board’s
reluctance to interfere with access to grievance procedures
and the courts. In Teamsters Local 483 (Ida Cal), 289 NLRB
924 (1988), the issue was whether a union was unlawfully
attempting to force owner-operators, who were independent
contractors, to join the union under the provisions of a
union-security clause. Though the owner-operators were
found by the Board to be independent contractors, it was
held that the union’s filing of the grievance and lawsuit did
not constitute a violation of Section 8(b)(4)(ii)(A) of the Act.
Though it could have been argued that the union pursued the
grievance and lawsuit for the unlawful object of forcing inde-
pendent contractors to join the union, the Board found that
the union’s actions were consistent with the goal of obtaining
an adjudication, through arbitration or court action, of the
status of the owner-operators. In addition the Board noted
that the union did not strike or picket and that the union’s
contention that owner-operators were statutory employees
was not unreasonable. A similar result was reached in Elec-
trical Workers IBEW Local 532 (Brink Construction), 291
NLRB 437 (1988). The Board held ‘‘that Congress intended
the judiciary to be the appropriate forum for resolving con-
tractual disputes.’’ The issue presented in that case was
whether a union violated Section 8(b)(1)(B) of the Act by
suing in district court to compel a company to comply with
the grievance and arbitration provision in a collective-bar-
gaining agreement. The administrative law judge had held
that the union violated Section 8(b)(1)(B) of the Act by filing
the lawsuit because the lawsuit was groundless and was an
unlawful attempt to force the company to select an associa-
tion as its representative for the purpose of collective bar-
gaining. The Board reversed, holding that the union did noth-
ing more than invoke its right to file an action in federal
court to resolve a bona fide dispute as to whether a contract
continued to exist. The Board further held that the union’s
‘‘conduct was in harmony with Congress’ decision to leave
the enforcement of collective bargaining agreements to the
courts in accordance with the usual processes of the law.’’
Charles Dowd Box [Co. v. Courtney], 368 U.S. [502], 511
[1962] . . . .’’
As found above the Charging Parties did not agree to be
bound by interest arbitration at the expiration of the 1983–
1987 contract and the Joint Board awards were therefore nul-
lities. The evidence in this unfair labor practice proceedings
clearly establishes that there is no valid collective-bargaining
agreement to which Concord, Triangle, or Pueblo are bound.
That issue has been fully litigated before me and it is unfor-
tunate that the parties as well as the court may have to be
subjected to multiple, redundant litigation on the same sub-
ject. However the ultimate issue before me is whether the
Union violated the Act by litigating its contention that a con-
tract did in fact exist. In the light of the above cited cases
I must hold that such litigation before the Joint Board, the
grievance tribunal and the District Court did not violate the
Act as alleged in the complaint. I shall therefore recommend
that the complaint be dismissed.11
CONCLUSION OF LAW
The General Counsel has not established by a preponder-
ance of the credible evidence that the Union violated the Act
as alleged in the complaint.
[Recommended Order for dismissal omitted from publica-
tion.]