NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,415, SHEET METAL WORKERS’ INTERNATIONAL ASSOCIATION, LOCAL UNION NO. 162 and DWIGHT LANG’S ENTERPRISES, INC., (Aug. 29, 1994), National Labor Relations Board, (Aug 29, 1994)

SHEET METAL WORKERS’ INTERNATIONAL ASSOCIATION, LOCAL UNION NO. 162 and DWIGHT LANG’S ENTERPRISES, INC.

314 NLRB No. 146.Case No. 32-CB-2847. August 29, 1994 Amended August 31, 1994..

Before Gould, Stephens, Devaney, Browning and Cohen.

Union Restraint and Coercion--Choice of Employer Representative--Interest Arbitration Clause.--A union did not attempt to coerce an employer’s choice of its bargaining representative in future contract negotiations by submitting negotiating issues to the National Joint Adjustment Board over the employer’s objection and by seeking a court order binding the employer to the terms of an expired bargaining contract set by the NJAB’s interest arbitration award. Although the employer timely withdrew from an employer’s association that had negotiated and executed the bargaining contract, the terms of that agreement arguably bound the employer to a renewal of the contract and to the NJAB’s resolution of disputes concerning the renewal. The union merely sought to preserve the status quo. Section 8(b)(1)(B).

Back reference: ¶4350.86.

From Text of Board’s Decision

Upon charges filed on December 4, 1987, by Dwight Lang’s Enterprises, Inc., the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing on December 16, 1987. The complaint alleges that the Respondent, Sheet Metal Workers’ International Association, Local Union No. 162, violated Section 8(b)(1)(B) of the National Labor Relations Act by invoking the interest arbitration clause of the expired collective-bargaining agreement between the Respondent and the Northern San Joaquin Valley Chapter of the Sheet Metal and Air Conditioning Contractors National Association (SMACNA) after the Employer had timely withdrawn from membership in, and revoked its assignment of bargaining rights to, that multiemployer association. The complaint further alleges that the Respondent violated Section 8(b)(1)(A) of the Act. In his brief to the Board, the General Counsel contended that the Respondent violated Section 8(b)(1)(A) of the Act by attempting to enforce a union-security clause contained in the collective-bargaining agreement which was imposed by the interest arbitration award at a time when the Respondent was not the Section 9(a) representative of these employees and when the agreement it sought to enforce was not a voluntary Section 8(f) agreement privileged under Deklewa. [1]

On August 1, 1988, the General Counsel, the Respondent, and the Employer filed a stipulation of facts. The parties agreed that the charge, the complaint, the Respondent’s answer, and the stipulation of facts, including attachments, constituted the entire record in this case and that no oral testimony was necessary or desired. The parties further stipulated that they waived a hearing and findings of fact, conclusions of law, and the issuance of a decision by an administrative law judge. The parties agreed that the Board should issue its decision containing findings of fact and conclusions of law.

On September 28, 1988, the Board issued an order approving the stipulation and transferring the proceedings to the Board. Thereafter, the parties filed briefs. [2]

On the entire record and the briefs, the Board makes the following

Findings of Fact

I. Jurisdiction

The Employer is a California corporation with an office and principal place of business in Modesto, California, where is it primarily engaged in sheet metal, air conditioning, heating, plumbing, and pipefitting construction work. During the calendar year 1987, the Employer received in excess of $50,000 in supplies from suppliers located outside of California, which were shipped directly to the Employer’s warehouse in Modesto or to jobsites in California. We find that Dwight Lang’s Enterprises, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Respondent admits, and we find, that it is a labor organization within the meaning of Section 2(5) of the Act.

II. Alleged Unfair Labor Practices

A. Stipulated Facts

The Respondent entered into a collective-bargaining agreement with the Northern San Joaquin Valley Chapter of SMACNA (the Association) covering the period of July 1, 1985, through June 30, 1987. The Association is composed of employers who are engaged in the purchase, distribution, transmission, installation, servicing, and sale of heating and air conditioning products. The agreement provided for the terms and conditions of employment for employees of employer-members of the Association as well as for employees of individual employers who executed the agreement as “individual employers.” At the time the Association and the Respondent entered into this agreement, the Employer was a member of the Association and had assigned its bargaining rights to it. [3]

The 1985-1987 collective-bargaining agreement contained an interest arbitration clause providing for arbitration of controversies or disputes arising out of the failure of the parties to negotiate a new or succeeding agreement. The interest arbitration clause included a provision establishing a procedure for submitting any such dispute to the National Joint Adjustment Board (NJAB). [4] The agreement also contained an expiration clause which provided that the agreement automatically renewed itself unless timely notice of reopening was given and that the contract expiration date (of June 30, 1987) would not be effective if proceedings under the interest arbitration clause had not been completed prior to that date. [5]

On January 21, 1987, the employer withdrew its delegation of bargaining authority from the Association and notified it of its intention to bargain individually with the Respondent following the expiration of the collective-bargaining agreement on June 30, 1987. By letter dated March 26, 1987, the Employer notified both the Association and the Respondent that it intended to “negotiate our own agreements upon expiration of our present agreements.” Representatives of the Employer and the Respondent met once in May 1987 to discuss a successor contract, but no agreement was reached.

On July 2, 1987, the Employer notified each of its sheet metal employees and the Respondent that it was unilaterally changing the employees’ terms and conditions of employment and, under recent Board authority, [6] it was under no obligation to bargain for a new contract. On July 9, 1987, the Respondent informed the Employer that it regarded the Employer as bound to the interest arbitration provision of the expired contract and that it intended to submit the parties’ failure to arrive at a new agreement to the NJAB for resolution.

The Employer refused to recognize the NJAB’s jurisdiction and refused to participate in the NJAB hearing on August 3, 1987. The Employer raised no specific objection to any specific term of the contract proposed by the Respondent. About August 7, 1987, the NJAB rendered its award imposing a new collective-bargaining agreement on the parties to be effective from July 1, 1987, to June 30, 1989. That contract included an interest arbitration provision and a provision (art. V, sec. 1), carried over from the expired contract, requiring membership in the Respondent as a condition of continued employment. The award also included a proviso stating that any provision of the imposed collective-bargaining agreement found nonmandatory by the Board or a court would be deleted and referred back to the NJAB if the parties could not agree on a replacement for the disputed provision. [7]

The Employer refused to comply with the award and filed a petition in state court to vacate it. The Respondent removed the case to Federal court and filed a counterpetition to confirm the award. Both petitions are currently pending. [8] On two occasions in November 1987, the Respondent requested information from the Employer about its current employees so that it could verify the Employer’s compliance with the union-security clause of the contract imposed by the NJAB. The Employer has not complied with these requests.

The stipulation of facts does not state whether the 1985-1987 agreement was a Section 8(f) or a Section 9(a) agreement. However, in separate proceedings before the Board in which the Employer sought the processing of an employer (RM) petition under Section 9(c)(1)(B) of the Act, the Regional Director found that the parties had an 8(f) contract. Neither party sought review of that portion of the Regional Director’s decision, and the Board affirmed it. [9]

B. Contentions of the Parties

The General Counsel contends that the Respondent’s submission of the bargaining dispute to the NJAB for binding interest arbitration and its later efforts to enforce the resulting award in court violated Section 8(b)(1)(B) by forcing the Emmployer to relinquish its statutory right to select its own representatives for collective bargaining. The General Counsel points out that under the terms of article X, section 8, of the collective-bargaining agreement, the NJAB is empowered to resolve disputes “arising out of the failure of the parties to negotiatee a renewal agreement.” (Emphasis added.) Thus, according to the General Counsel, the applicability of the interest arbitration provision is limited to those entities signatory to the agreement--the members of the Association and the Respondent. Since the Employer had timely withdrawn from the Association, the General Counsel argues that the Employer was no longer a “party” to the agreement to which article X, section 8, by its own terms applied. Moreover, the General Counsel contends, the Employer, having terminated its 8(f) relationship with the Respondent on July 2, 1987, no longer had a collective-bargaining relationship with the Respondent. Thus, the General Counsel argues, the Respondent’s action in unilaterally invoking the interest arbitration provision must be seen as an attempt to substitute the NJAB for any bargaining representatives that the Employer might choose on its own belief. Therefore, the General Counsel concludes the Employer is deprived of its right, under Section 8(b)(1)(B), to select its own bargaining representative.

The Employer argues that article X, section 8, forces an employer to consent to representation by a multiemployer bargaining group even after, as here, that employer has properly withdrawn bargaining authority previously granted to that group. According to the Employer, the Respondent, by unilaterally declaring a deadlock and invoking the contractual interest arbitration provision, has violated Section 8(b)(1)(B) by coercing it in the selection of its bargaining representative. The Employer also contends that the Respondent further violated Section 8(b)(1)(B) by attempting to enforce the NJAB-imposed agreement, which itself contained an interest arbitration clause through which the Employer would be forced to relinquish its bargaining authority in perpetuity.

The Employer contends that the grounds for these violations are not affected by Deklewa because the parties remained in a collective-bargaining relationship, notwithstanding that neither Section 8(a)(5) nor Section 8(b)(3) applied to their action. In the Employer’s view, the continuing relationship was based on the Respondent’s invocation of interest arbitration, the resulting collective-bargaining agreement imposed by NJAB, the Respondent’s efforts to enforce that agreement in Federal court, and the Respondent’s claim of majority status among the Employer’s employees. Thus, concluded the Employer, the Respondent has demonstrated an intent to represent the Employer’s employees and its actual purpose in invoking interest arbitration was to interfere with the Employer’s selection of its bargaining representative.

The Respondent argues that the Employer’s act of withdrawing from the Association which had freely negotiated the interest arbitration provision is not, contrary to the General Counsel’s theory of the case, sufficient grounds for finding that the Respondent’s later invocation of article X, section 8, constituted unlawful coercion of the Employer. The Respondent denies that the withdrawal from the multiemployer association can expunge article X, section 8, by stressing that there is no contingent term in the contract declaring that a change in bargaining representative (from the NJAB to some other representative) cancels the provisions of article X, section 8. Thus, according to the Respondent, there is no “escape clause” from the interest arbitration that the complaint reads into the collective-bargaining agreement.

C. Analysis and Conclusions

The central issue in this case is whether the Respondent, which had an 8(f) relationship with the Employer, violated Section 8(b)(1)(B) of the Act by (1) unilaterally submitting unresolved bargaining issues between it and the Employer to the interest arbitration procedures contained in the 1985-1987 agreement after the Employer had timely withdrawn from and revoked its assignment of bargaining rights to the Association and notified the Respondent that it was under no obligation to bargain for a new contract and (2) filing a Federal court action to confirm the resulting arbitration award. [10] We find that the Respondent did not act unlawfully in either respect.

The analytical framework for resolving 8(b)(1)(B) allegations of this nature was established in Electrical Workers IBEW Local 113 (Collier Electric), [11] which issued after this case was transferred to the Board. Under Collier, the Board considers whether the union has a reasonable basis in fact and law for submitting unresolved bargaining issues to interest arbitration. If such a basis exists--i.e., if the agreement arguably binds the employer to the interest arbitration provisions--the union may lawfully invoke its contract rights, including initiating court action to enforce any resulting contract. On the other hand, if the agreement does not arguably bind the employer to interest arbitration, then the union will unlawfully coerce the employer in the selection of its collective-bargaining representative, in violation of Section 8(b)(1)(B), by submitting unresolved bargaining issues to interest arbitration. [12]

Collier emphasized, however, that the presence of an interest arbitration clause in a collective-bargaining agreement does not relieve employers and unions of their responsibility to engage in good-faith bargaining. On proper invocation of its jurisdiction, the Board will review the bargaining for a renewal agreement to ensure that the parties have bargained in good faith before submitting any unresolved issues to interest arbitration.

The Collier doctrine has met with court approval. In West Coast Sheet Metal v. NLRB, [13] the court examined the Board’s decision in light of the statute and its legislative history and held that Collier was “reasonable” and “consistent” with the National Labor Relations Act.

The court declared that in Section 8(b)(1)(B), “Congress was targeting union practices absent in Collier Electric, i.e., the conditioning of bargaining upon an employer’s affiliation with a multiemployer association.” 938 F.2d at 1362. The court stated that “the Board could reasonably classify the peaceful, good-faith resort to legal process as a legitimate effort to preserve the fruits of prior industry-wide bargaining, not as unlawful ‘restraint’ or ‘coercion.'” Id.

The court also rejected the argument that Collier is inconsistent with the clear and unmistakable waiver standard:

We find this argument misguided. “Waiver” is a concept that operates to counter claims that a recognized right has been infringed; it does not apply beyond the scope of the right that has allegedly been invaded. In Collier Electric, however, the Board in effect decided that the employer’s right at issue is not so sweeping as West Coast conceives it to be. On the Board’s analysis, which we have found to be reasonable, [S]ection 8(b)(1)(B)’s ban on union “restraint” and “coercion” does not bestow upon an employer, who has withdrawn mid-term from a multiemployer association, any right to be free from a union’s invocation, after bargaining in good faith to impasse, of an at least arguably applicable interest arbitration provision. In the present case, therefore, the Board had no occasion to determine whether West Coast had “waived” its [S]ection 8(b)(1)(B) right, “clearly and unmistakably” or otherwise; instead, the key question is simply whether Local 206 infringed that right, either by unreasonably invoking the interest arbitration clause, or by bargaining in bad faith before invoking the clause. [Id.]

Finding that the Board had reasonably answered that “key question,” the court affirmed the Board’s dismissal of the unfair labor practice complaint.

Applying the Collier standard to the facts in this case, we find that the Respondent did not violate Section 8(b)(1)(B) by submitting negotiating issues to NJAB over the Employer’s objection and seeking a court order binding the Employer to the terms of the collective-bargaining agreement set by the interest arbitration award. Our finding is consistent with the Board’s findings in Sheet Metal Workers Local 20 (Baylor Heating), [1991-92 CCH NLRB ¶16,429] 301 NLRB 258 (1991); as well as in Sheet Metal Workers Local 54 (Texas Sheet Metal), [1989-90 CCH NLRB ¶15,957] 297 NLRB 672 (1990); and Sheet Metal Workers Local 283 (Conditioned Air), [1989-90 CCH NLRB ¶15,976] 297 NLRB 658 (1990), where the unions are found to have acted lawfully by unilaterally submitting bargaining disputes to interest arbitration pursuant to contractual provisions virtually identical to those contained in article X, section 8, in this case. [14] For the reasons set forth in those decisions, we find that the contractual interest arbitration provisions here could arguably be interpreted as binding the Employer as a single employer on whose behalf the provisions were negotiated and agreed to by the Association when it was still a member of the Association and had not yet revoked the assignment of bargaining rights to the Association. [15]

We recognize that the parties’ rights and obligations under 8(f) agreements are governed by Deklewa. However, for the reasons stated in Baylor, supra, we find that nothing in Deklewa mandates a different result. Here, as in Baylor, the introductory language of article X, section 8, requires submission to the NJAB following any “failure of the parties to negotiate a renewal of the Agreement.” We find that this language arguably binds the Employer to a renewal of the agreement and to the NJAB’s resolution of disputes concerning that renewal. Arguably, by agreeing to the interest arbitration clause, the parties have agreed to extend their bargaining relationship beyond the contract’s expiration date and thus the Employer’s privilege under Deklewa to repudiate the relationship had not been triggered at the time of submission to the NJAB.

We further find that the Respondent did not violate Section 8(b)(1)(B) to the extent its submission to the NJAB might have included interest arbitration provisions in the prospective contract. In this regard, the stipulation of facts states that only one bargaining session took place betwen the Respondent and the Employer, and it does not indicate that the subject of interest arbitration came up at that meeting. The stipulation does not contain any description of the contract proposed by the Respondent to the NJAB; it does state that the Employer refused to participate in the NJAB proceeding and raised no specific objection to any of the terms in the Respondent’s proposal. In its award, the NJAB simply directed the Employer to execute a collective-bargaining agreement containing the terms of the contract between the Respondent and the employers represented by the Association. In these circumstances, there is no basis for a finding that the Respondent specifically proposed the inclusion of an interest arbitration clause in the new contract, let alone that it insisted to impasse on such a term. Nor did the Respondent protest the limitation placed on the interest arbitration provisions by the NJAB in its award, that is, that any provision in the imposed collective-bargaining agreement found nonmandatory by the Board or a court would be deleted. Indeed, in its counterpetition for enforcement, the Respondent requested the court to confirm the award “in all respects.”

In finding that the Respondent did not violate Section 8(b)(1)(B), we stress that we are not consigning the Employer to a “perpetual cycle of binding interest arbitration.” [16] The NJAB award assures that neither party will be forced to accept, over its objection, any provison that is a nonmandatory subject of bargaining. [17] As interest arbitratation is a nonmandatory subject, we find that the Employer is not required by the NJAB award to submit any additional unresolved disputes to interest arbitration. [18]

From these findings, it follows that the Respondent did not violate Section 8(b)(1)(B) by petitioning the court for enforcement of the NJAB award. As the Board noted in Collier, under the Supreme Court’s decision in Bill Johnson’s Restaurants v. NLRB, [97 LB ¶10,130] 461 U.S. 731 (1983), if a lawsuit has a reasonable basis in fact and law, the Board may not enjoin the suit, but must allow it to proceed. Here, as we have found, the Respondent’s invocation of the interest arbitration procedures has a reasonable basis in fact and law, and we therefore will not interfere with the Respondent’s attempt to enforce the arbitration award in court.

For these reasons, we find that the Respondent did not violate Section 8(b)(1)(B) of the Act and shall dismiss the complaint. [19]

[Dissent]

Members Stephens and Cohen, dissenting in part: 1. For the reasons set forth in Member Stephens’ dissenting opinion in Sheet Metal Workers Local 20 (Baylor Heating), 301 NLRB 258 (1991), we would find that the Respondent violated Section 8(b)(1)(B) of the Act by submitting its unresolved dispute with the Employer to interest arbitration and by filing an action under Section 301 to enforce the NJAAB’s award, which included an interest arbitration provision [20] .

2. We join with the majority in denying the General Counsel’s motion to withdraw the 8(b)(1)(A) allegations of the complaint. Unlike our colleagues, however, we find that the Respondent violated Section 8(b)(1)(A) by involving the interest arbitration provisions of the expired collective-bargaining agreement and imposing on the Employer, without his consent, a successor agreement that included union-security clause.

The Employer was, through its membership in the Association, party to prehire collective-bargaining agreements sanctioned by Section 8(f). On July 2, 1987 the Employer, relying on the then recently issued Deklewa, terminated its voluntary bargaining relationship with the Respondent. In response to the Employer’s court efforts to vacate the NJAB arbitration award of August 7, 1987, the Respondent sought, through its counterpetition in Federal court, to enforce an arbitration award which imposed on the Employer’s employees a collective-bargaining agreement containing a union-security clause at a time when the Respondent was not the Section 9(a) representative of these employees and when, in our view, the Employer had not agreed to be bound by the agreement containing the clause. By these actions the Respondent violated Section 8(b)(1)(A), as alleged.