Local 87, Sheet Metal Workers

National Labor Relations Board - Board Decisions

Jun 10, 1975

218 N.L.R.B. 365 (N.L.R.B. 1975)

LOCAL 87, SHEET METAL WORKERS 365
Local Union No. 87, Sheet Metal Workers Interna-
tional Association, AFL-CIO and Tidewater Sheet
Metal Employers Association . Case 5--CB-1514
June 10, 1975
DECISION AND ORDER
By MEMBERS FANNING, KENNEDY, AND
PENELLO
On January 31, 1975, Administrative Law Judge
John M. Dyer issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor ,Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, fmdings,1 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
I The Administrative Law Judge misinterpreted Benton's testimony
when - he made the findings that as of May 2 the only remaining issue for the
next meeting was art. X, and also in his finding that two of the General
Counsel's witnesses admitted hearing the Union offer to let the companies
choose their own designees for arbitration when, in fact, only one so
testified. We view these findings as minor discrepancies having no effect on
the resolution of this case.
2 We limit our adoption of the Administrative Law Judge's Decision to
the finding that no impasse was reached. Accordingly, we shall dismiss the
complaint.
DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Administrative Law Judge: The Tidewa-
ter Sheet Metal Employers Association, herein called the
Association, filed a charge on May 15, 19741 alleging that
Local Union No. 87, Sheet Metal Workers International
Association, AFL-CIO, herein called Local 87, the Union,
or the Respondent, violated Section 8(b)(1)(B) and (3) of
the National Labor Relations Act, as amended. The
8(bXl)(B) allegation was later withdrawn and on October
15 the Acting Regional Director issued a complaint and
notice of hearing, which, in addition to the standard
jurisdictional and commerce allegations, alleges that the
Union refused to bargain with the Association by "main-
taming a fixed, inflexible position" and "demonstrating a
rigid unwillingness to change its position or to discuss the
Association's counterproposals with respect to Article X"
of the contract signed on May 13 which was effective from
May 1 and that the Union further refused to bargain by
"Conditioning agreement of a new contract and insisting to
impasse on the inclusion of Sections 3, 4 and 8 of Article X
in said contract," which provisions,, it is alleged, are
nonmandatory subjects of bargaining.
Respondent filed a timely answer which raised questions
as to the ability of the Association to do business in the
State of Virginia and its existence as set forth in the
complaint and denied that the Union had violated the Act
in any way. During the hearing of this matter which was
held on November 4 in Norfolk, Virginia, certain of the
commerce allegations in the complaint were amended and
stipulated to by the parties. During the hearing the parties
were afforded full opportunity to appear, to examine and
cross-examine the witnesses, and to argue orally, Respon-
dent additionally filed a brief which has been fully
considered.
On the basis of the evidence, I have concluded that
Respondent did not violate Section 8(b)(3) of the Act and
that it did not maintain an inflexible, fixed position nor did
the parties come to impasse concerning nonmandatory
bargaining issues in their negotiations and I will therefore
dismiss the complaint in its entirety.
On the entire record in this case, including my evaluation
of the reliability of the witnesses based on the evidence
received, I make the following:
FINDINGS OF FACT
1. COMMERCE FINDINGS AND UNION STATUS
The American Sheet Metal Corporation, Joseph S. Floyd
Corporation, Fowler Roofing Company, and Coley and
Petersen, Inc., are each Virginia corporations engaged in
the heating and air-conditioning and sheet metal industry
and they all have designated the Tidewater Sheet Metal
Employers Association to act in their behalf in negotiating
and entering into collective-bargaining agreements. The
four named companies collectively purchased and received
in interstate commerce, directly from points located
outside the State of Virginia, materials and supplies valued
in excess of $50,000.
The parties agree, and I find, that the companies are
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
The parties agree, and I find, that Local 87 is a labor
organization within the meaning of Section 2(5) of the Act.
IL THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Facts
The four companies named above plus one or two other
companies had bargained with the Union on an individual
' Unless specifically stated otherwise , all events herein occurred during
1974.
218 NLRB No. 59
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
basis for some 10 to 15 years and had signed contracts with
the Union which included sections 3 and 4 of article X.2
None of the companies who were signatories to these
contracts were members of the Sheet Metal and Air
Conditioning Contractors' National Association, Inc.,
herein called SMACNA, but under -the terms of the
contracts had agreed to the use of such grievance panel as
may be seen from section 3. This panel consists of one
representative appointed by the general president of the
Sheet Metal Workers International Association and one
representative appointed by the chairman of the Labor
Relations Committee of SMACNA. Therefore the deci-
sions of this group had to be unanimous or else they would
deadlock and there is no provision for a neutral arbitrator.
In 1971 the above four companies plus two others
engaged in negotiations with the Union through James
Rushing, who is the executive director of the Virginia
Contractors' Association. Rushing represented the compa-
nies throughout the 1971 negotiations and again through-
out the 1974 negotiations. No agreement was reached in
1971 and a strike of some 80 days ensued. The companies
individually signed contracts with the Union which were
referred to as standard form contracts. The 1971 contract
contained a new section 8 in article X,3 which in essence
provides that where the parties fail to negotiate a renewal
of the contract it should be settled by taking such a
deadlock before a panel to be appointed by the general
president of the International Union and a representative
of SMACNA who will attempt to conciliate the differences
between the parties and if they are not able to resolve it,
the dispute is to be submitted to the National Joint
Adjustment Board. Article X also provides that there is to
be no strike or lockout during the pendency of procedures
provided in the article and that except in case of deadlock
the decision of the National Joint Adjustment Board
would be final and binding on the parties.
The 1971 contract was due to expire on April 30, 1974.
On February 11, negotiations for a new contract were
commenced with the above-named four companies negoti-
ating through James gushing, and the union negotiators
were led by the business manager of Local 87, Raymond
DeGraw. A series of nine meetings were held by the parties
and on May 6 agreement on the terms of a new contract
was reached and the contract was thereafter ratified by the
union membership and signed on May 13, with an effective
date of May 1. Up until the May 2 meeting, Rushing was
representing the four companies as individual companies
and at the May 2 meeting Rushing announced that the
Association had been formed and would sign any contract
on behalf of its four members. As D. L. White, one of
General Counsel's witnesses and the vice president of
Joseph S. Floyd Corporation, testified, "and then, towards
the last when we seen that we might be getting it together,
we were faced with this problem of what are we going-
who is going to sign the contract" and as he stated, he
believed he suggested forming an association of just sheet
metal contractors for the culmination of negotiations.
B. The Negotiations
James Rushing, who was the spokesman for the
companies and the Association throughout the negotia-
tions, was not present at the hearing in this matter, but was
on vacation. The General Counsel called D. L. White and
Billy J. Benton, the latter being a vice president of
American Sheet Metal Corporation, to testify, since both
were present throughout the negotiations. The testimony of
these two gentlemen was somewhat sketchy and in some
instances was aided by leading questions.
Briefly stated, their testimony was to the effect that
article X was discussed at each of the nine negotiation
sessions and that the Union insisted on the inclusion of
article X without any variation in its terms . They,also
stressed that the companies offered other types of arbitra-
tion, such as the parties striking off names of a panel and
getting down to one neutral party from a list proposed by
the American Arbitration Association, or having someone
appointed as a neutral arbitrator by a judge, or picking
names from a hat. These proposals were discussed but the
Union took the position that they were not acceptable to it
and they were rejected. General Counsel's witnesses did
admit that during one of the bargaining sessions the Union
stated that for the purpose of the arbitration panels the
companies could pick their own designees to be members
of such joint grievance boards or panels but added that
such designees should have knowledge of the sheet metal
trade since the Union did not want people on those panels
who did not have any knowledge of what was involved in
the problems to be presented. As one of the General
Counsel's witnesses stated, the companies wanted the
proposed article X changed in any possible way but the
Union wanted it to stay as it was. Their testimony,
however, was not clear as to whether at the last bargaining
session Mr. Rushing told the Union or just -told the
company members of the Association that they would sign
a contract under protest.
Benton testified that as of the May 2 meeting the sole
remaining issue which was to be considered on May 6 was
article X, section 8. After some leading questions he added
sections 3 and 4, which had not previously been mentioned
in his testimony.
D. L. White testified that he kept notes during the
negotiations but stated that he threw them away after a
contract was signed. This testimony is somewhat hard to
believe if we are to accept the representations made by the
Association that they were signing this contract under
protest and intended to proceed with the matter through
the National Labor Relations Board. When pressed to
express just what the companies wanted in the way of
arbitration, White testified as follows:
Q. But you were insisting on an arbitrator?
A. We were insisting on the right that we would
like to have arbitration in the contract and we would
like to choose our representation for arbitration.
Q. Say that again, because I don't understand what
you are saying-
2 See Appendix A. 3 See Appendix B.
LOCAL 87, SHEET METAL WORKERS 367
A. We were insisting that we would like to have
had an arbitration clause in the contract to forestall
strikes, if possible; but we did not like the idea of being
told that we were married to an organization who did
not represent us, as our representative - who did not
represent us to be our representative in any dispute,
that we certainly would like to have and, in fact, we
insisted that we have the right to select our negotiator,
arbitrator or someone to present our side of a dispute.
Q. How many arbitrators were you all seeking?
A. We did not get to the formula stage, the recipe
stage, as you say, sir.
Q. Did you think it was going to be one arbitrator?
A. Possibly.
Q. And did you propose at one time that it be one
arbitrator?
A. We did not propose specifically.
Although the testimony presented by the General
Counsel would indicate that not much of a specific nature
was ever proposed by the Association to replace article X,
the companies had presented a proposal at the beginning
of the negotiations which would have established in the
event of a deadlock on negotiations that a neutral
arbitrator be selected from a list to be proposed by the
American Arbitration Association and would have had the
arbitrator make a choice between a company contract
proposal and a union contract proposal with no authority
to make any compromises.
The Union's version of the negotiations is somewhat
different in that, according to the Union, the first eight
negotiation sessions were used primarily by Rushing in
complaining about the 1971' negotiationns, and contract and
in stating that the companies did not like having SMAC-
NA represent the companies in arbitration proceedings.
Testimony presented by the Union was that during the
April 18 meeting the union representatives caucused and
came back and told the companies that they wished to
keep their union representatives in any arbitration panel
that was held, which would be the same two representa-
tives that were presently used in meetings with SMACNA,
but that if the companies desired, they could have anyone
they wanted as their designees to meet with the union
designees but the Union preferred that whoever the
companies chose would have knowledge of the sheet metal
industry. They said they did not want a panel to consider
matters in the sheet metal industry where the panel
members had no knowledge of it . There was some
discussion of this proposal, but after a short while,
according to the Union , Rushing again brought up the
1971 contract and nothing more was ' done concerning the
Union's proposal.
According to the Union, on May 2 and again on May 6,
the principal thing outstanding in negotiations was wages.
The Union admits that on the morning of May 6 it was
served with a two-page document entitled "Contractors'
Final Offer" which proposed changes in regard to article 1
of the contract, arbitration under article X of the contract,
and an article concerning wage rates . Ii would seem from
this document itself that the testimony adduced by General
Counsel, that on May 2 everything was concluded except
article X of the contract , clearly is erroneous . The parties
bargained thereafter for some 3 hours and did not,
according to the Union's testimony, consider the "Contrac-
tors Final Offer" as the basis for agreement but did discuss
wages, arbitration, and other items. The Union stated that
the session of May 6 was the only real bargaining which
took place throughout the entire period of negotiations.
According to DeGraw, who was called by the General
Counsel as a witness , after 3 hours of negotiations , it ended
with the companies offering the Union two packages. In
DeGraw's cross-examination they were set as the follow-
ing:
Q. (By Mr . Rosenstein) And they came back and
said, "We have an agreement subject to your ratifica-
tidn," is that correct?
A. No. They came back with this, that if we did,
that they would accept Eastern Industries money and
they would go along with the vacation, deduct the
sketchmen, sign under the Virginia Association of
Contractors, the agent for the independent contractors,
we would have to drop the bond, all reference to
foremen, Section 5, Article VIII, drop Section 12, 14,
Article VIII, drop Article X complete, drop Article XI,
drop Section 2, Article XIII; and if we didn't do this, -
if we didn't do all of this, then, they would contest all
these articles and the sections designated, that they
would contest that before the National Labor Relations
Board.
But, if we agreed to their money, they would sign the
agreement with Article X and agree upon all the other
proposals , the foremen, the general foremen and all of
these fringes . And we drew this proposal up, got the
people to initial it. I drew these things up, took it over
there to him , he initialed it and we presented it to our
body, and we gave up 20 cents an hour to go along with
these people, that we already had been offered. And
they agreed that they would pay it; but they coerced us
- I think they coerced us into accepting the $2 .50 that
we took.
There was no contradiction of this testimony. The Union
took the initialed proposal to the membership who ratified
it, and the contract was thereafter drawn up and signed.
Neither at the time of initialing this contract proposal nor
in the contract itself, nor at any time since the contract has
been signed or in any writing to the Union , have the
companies or the Association indicated that the contract
was signed under protest.
C. Analysis and Conclusion
In his oral argument , the General Counsel cited a
number of Board cases and in each of them the union had
sought to coerce management to accept its proposal by
going on strike after reaching an impasse in negotiations
on the particular nonmandatory bargaining subject the
union sought. Where the Board found a refusal to bargain,
it noted that the respondent had been guilty of maintaining
a fixed position which was inflexible throughout the
negotiations and extended through the strike in seeking to
get its way.
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Such a situation does not pertain in the present case for
several reasons. First, the basic question of whether there
was an impasse on a nonmandatory bargaining subject is
somewhat confused by the testimony of General Counsel's
witnesses both as to impasse and to whether they were
really talking about a mandatory or nonmandatory
subject. Clearly there appears to have been an attempt by
the companies to get away from two-party arbitration and
bring in a neutral or, third party for binding arbitration.
This position, if it was the companies' position, was not
made clear by the testimony adduced by the General
Counsel but would depend on the companies' written
proposal and the evidence does not show to what extent
bargaining took place on this proposal. The only thing that
was really stated in testimony was that the companies
wanted to change article X in any way that they could but
the evidence is not clear as to what the negotiations
demonstrated the companies' position to be. It was brought
out that the Union wanted to retain the contract's type of
arbitration just as much as the companies wanted to
change it.
Although the surface question is whether the Union is
attempting to dictate to the companies who their represent-
atives for arbitration purposes should be, the real question
is whether two-party arbitration panels such as is presently
in the contract is to continue or whether there should be a
change to a neutral or third-party type of arbitration.
It is clear from the testimony that the Union attempted
to keep the two-party system and meet the companies'
objections by offering at the April 18 meeting to keep its
own designees for such a panel but allow the companies to
designate who they wished as their representatives in this
two-party panel system. The question apparently did not
get resolved since the companies presumably again sought
to turn it into a third or neutral party arbitration system. In
stating that they preferred to have persons who were
knowledgeable in the sheet metal trades designated by the
companies, the Union in essence was saying that where
you have a two-party panel you need knowledgeable
people on that panel.
Where the true question appears to be whether the
parties will continue with a two-party arbitral system or go
to a neutral or third-party system, it would seem clear that
such is a mandatory subject of bargaining over which the
parties could go to impasse. Where the contention is that
the Union was remaining inflexible on the totality of article
X, the answer is that the Union did change its position and
offered that the companies designate whoever they wished
to be on the two-panel system.
The oral testimony that the parties were at an impasse
solely over section 8 of article X on May 2 and 6 which was
later stretched to include sections 3 and 4 was essentially
belied by the companies' "Final Offer," presented to the
Union at the start of the negotiation session of May 6,
which demonstrated that other essential contract items had
not been resolved, Further, the uncontradicted testimony is
that genuine hard bargaining took place on May 6 after
this "Final Offer."
AlAo denigrating the concept of impasse was the
testimony of D. L. White to the effect that the idea of the
Association to sign a contract was thought up because it
looked like the parties were getting close to a contract.
When to this is added the uncontradicted testimony that
the companies made the genuine (not paper) final offer of
two packages to the Union and the Union chose the one it
felt it could live with best, there can be no finding that an
impasse was ever reached in this series of negotiations.
Indeed if the parties had reached an impasse there was a
provision under section 8 of article X in the contract which
then controlled their negotiations, for such deadlocked
negotiations to be forwarded to the Joint Panel (see section
8, Appendix B). In regard to section 8, see Mechanical
Contractors' Association of Newburgh, 202 NLRB 1 (1973).
Respondent also sought dismissal of the complaint
because the Association was not registered under a
fictitious-names provision of the Virginia Code, which it
felt made it incapable of filing a charge. Since Respondent
knew who it dealt with and approved of the Association's
origin and existence and entered a contract with it, I find
the Association could file a charge and that the Virginia
Code provisions are not binding on this matter.
In summary, the evidence produced in this proceeding
does not establish that the Union had a fixed, inflexible
position and was rigidly unwilling to consider seriously any
possible alternatives to its proposal, since the Union has
demonstrated that it was willing to consider other
possibilities than that specifically set forth in article X.
Further, contrary to General Counsel's position, no
impasse was ever reached in the negotiations here, since
apparently the paper on which General Counsel relied was
handed to the Union at the beginning of the May 6
bargaining session and the parties thereafter bargained to a
contract with the companies proposing two separate
packages and the Union choosing one of those packages,
and there was no signing of the contract under` protest as
alleged.
I therefore conclude that the allegations of the complaint
have not been proven and that the complaint must be
dismissed in its entirety.
[Recommended Order omitted from publication.]
APPENDIX A
SECTION 3. Grievances not disposed of under the
procedure prescribed in Section 2 of this Article, because
of a deadlock, or failure of such Board to act, may be
appealed jointly or by either party to a Panel consisting of
one (1) representative appointed by the General President
of Sheet Metal Workers' International Association and one
(1) representative appointed by the Chairman of the Labor
Relations Committee of Sheet Metal and Air Conditioning
Contractors' National Association, Inc. Appeals on behalf
of employees shall be mailed to the General Secretary-
Treasurer of the Sheet Metal Workers International
Association and those on behalf of an employer mailed to
the Secretary of the Labor Committee of the Sheet Metal
and Air Conditioning Contractors' National Association,
Inc. Joint appeals shall be mailed to the Secretaries of both
Associations. Notice of appeal to the Panel shall be given
within thirty (30) days after termination of the procedures
prescribed in Section 2 of this Article. Such Panel shall
meet promptly, but in no event more than fourteen (14)
LOCAL 87, SHEET METAL WORKERS
calendar days following receipt of such appeal, unless such
time is extended by mutual agreement of the Panel
members. Except in case of deadlock, the decision of the
Panel shall be final and binding.
Notwithstanding the provisions of Paragraph I of this
Section, a contractor who was not a party to the labor
agreement of the area in which the work in dispute is
performed may appeal the decision of the Local Joint
Adjustment Board, including a unanimous decision, and
request a Panel hearing as set forth in Section 3 of this
Article, providing such appeal is approved by both the
Chairman of the Labor Relations Committee of Sheet
Metal and Air Conditioning Contractors' National Associ-
ation, Inc. and by the General President of Sheet Metal
Workers' International Association.
SECTION 4. Grievances not settled as provided in Section
3 of this Article may be appealed jointly or by either party
to the National Joint Adjustment Board, as established by
the Sheet Metal Workers' International Association and
the Sheet Metal and Air Conditioning Contractors'
National Association Inc. Submission shall be made and
decisions rendered under such procedures as may be
prescribed by such Board, from time to time, and mutually
approved by the parties creating nt. Copies of the
procedures shall be available from,, and submissions of
grievances may be made to, either the General Secretary-
Treasurer of Sheet Metal Workers' International Associa-
tion or the Secretary of the Labor Committee of the Sheet
Metal and Air Conditioning Contractors' National Associ-
ation, Inc. Submissions on appeal to the National Joint
Adjustment Board shall be made within thirty (30) days
after termination of the procedures prescribed in Section 3
of this Article.
APPENDIX B
SECTION 8. In addition to the settlement of grievances
arising out of interpretation or enforcement of this
agreement as set forth in the preceding sections of this
Article, any controversy or dispute arising out of the failure
of the parties to negotiate a renewal of this agreement shall
be settled as hereinafter provided:
(a) Should the negotiations for renewal of this agreement
become deadlocked in the opinion of the Local Union or
of the Local Contractors' Association, or both, notice to
that effect shall be given to the office of the General
President of Sheet Metal Workers' International Associa-
tion and the national office of the 'Sheet Metal & Air
Conditioning Contractors' National Association, Inc. If the
General President of Sheet Metal Workers' International
Association and the Chairman of the Labor Committee of
Sheet Metal and Air Conditioning Contractors' National
Association believe the dispute might be adjusted without
going to final hearing before the National Joint Adjust-
369
ment Board, each will then designate a panel representa-
tive who shall proceed to the locale where the dispute exists
as soon as convenient, attempt to conciliate the differences
between the parties and bring about a mutually acceptable
agreement. If such panel representatives or either of them
conclude that they cannot resolve the dispute, the parties
thereto and the General President of the Sheet Metal
Workers' International Association and the national office
of Sheet Metal and Air Conditioning Contractors' Nation-
al Association shall be promptly so notified without
recommendation from the panel representatives. Should
the President of Sheet Metal Workers' International
Association or the Chairman of the Labor Committee of
Sheet Metal and Air Conditioning Contractors' National
Association fail or decline to appoint a panel member or
should notice of failure of the panel representatives to
resolve the dispute be given, the parties shall promptly be
notified so that either party may submit the dispute to the
National Joint Adjustment Board.
The dispute shall be submitted to the National Joint
Adjustment Board pursuant to the rules as established and
modified from time to time by the National Joint
Adjustment Board. The unanimous decision of said Board
shall be final and binding upon the parties, reduced to
writing, signed and mailed to the parties as soon as possible
after the decision has been reached. There shall be no
cessation of work by strike or lockout unless and until said
Board fails to reach' a unanimous decision and the parties
have reached written notification of its failure.
(b) Any application to the National Joint Adjustment
Board shall be upon forms prepared for that purpose
subject to any changes which may be decided by the Board
from time to time. The representatives of the parties who
appear at the hearing will be given the opportunity to
present oral argument and to answer any question raised
by members of the Board. Any briefs filed by either party
including copies of pertinent exhibits will also be ex-
changed between the parties in advance,of the hearing.
(c) The National Joint Adjustment Board shall have the
right to establish time limits which must be met with
respect to each and every step or procedure contained in
this section. In addition, the 'President of SMWIA and the
Chairman of the National Labor Committee of SMACNA
shall have the right to designate time limits which will be
applicable to any particular case and any step therein
which may be communicated to the parties by mail,
telegram, or telephone notification.
(d) Unless a different date is agreed upon mutually
between the parties or is directed by the unanimous
decision of the National Joint Adjustment Board, all
effective dates in the new agreement shall be retroactive to
the date immediately following the expiration date of the
expiring agreement.