Local Union No. 54 Of Sheet Metal Workers' International Association, Afl--Cio

National Labor Relations Board - Board DecisionsJan 31, 1990

297 N.L.R.B. 672 (N.L.R.B. 1990)

672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Local Union No. 54 of Sheet Metal Workers' Inter- national Association, AFL-CIO and Joe F. Canterbury, Jr., Attorney, for Texas Sheet Metal, Inc. and Joe F. Canterbury, Jr., Attor- ney, for Graco Metals, Inc. and Joe F. Canter- bury, Jr., Attorney, for Texas Duct Systems, Inc. Cases 23-CB-3081-1, 23-CB-3081-2, and 23-CB-3081-3 January 31, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY Upon charges filed on May 8, 1986,' by Joe F Canterbury Jr, Attorney, on behalf of Texas Sheet Metal, Inc (TSMI), Graco Metals, Inc (GMI), and Texas Duct Systems, Inc (TDSI) (also referred to collectively as the Employers), the General Coun- sel of the National Labor Relations Board issued an order consolidating cases and a consolidated com- plaint and notice of hearing on June 4 The com- plaint alleges that the Respondent, Local Union No 54 of Sheet Metal Workers' International As- sociation, AFL-CIO, restrained and coerced the Employers in their selection of their representatives for purposes of collective bargaining and the ad- justment of grievances, in violation of Section 8(b)(1)(B) of the National Labor Relations Act, by (1) notifying the National Joint Adjustment Board (NJAB) for the Sheet Metal Industry 2 that the Re- spondent believed that a "deadlock" existed as to the (separate) contract negotiations between it and (respectively) TSMI, GM!, and TDSI, and by sub- mitting for resolution by the NJAB certain unre- solved issues on which the Respondent asserted that such deadlock existed, and (2) by thereafter re- fusing to meet and bargain with the Employers and maintaining that the NJAB would determine the terms of any agreements between the Respondent and the Employers The complaint further alleges that by engaging in the above conduct the Re- spondent has failed and refused to bargain collec- tively and in good faith with the Employers, in violation of Section 8(b)(3) of the Act The Re- spondent filed a timely answer admitting in part and denying in part the allegations of the com- plaint On August 11, the General Counsel, the Re- spondent, and the Employers filed a joint petition to transfer case to the Board and stipulation of the 'All dates in this Introductory section are 1986 2 The NJAB is composed of employers who are members of Sheet Metal and Air Conditioning Contractors' National Association, Inc (SMACNA) and representatives of the Sheet Metal Workers Internation- al Association (SMWIA) The instant Employers were not members of SMACNA at any time matenal record The parties agreed that the charges, con- solidated complaint, the Respondent's answer, and the stipulation of facts, including attachments, would constitute the entire record in this case, and that no oral testimony was needed or desired The parties further stipulated that they waived a hear- ing 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 The Respondent and the Charging Parties also requested oral argument On July 30 and on August 6, the Regional Director for Region 23 granted the motions to intervene filed by SMWIA and SMACNA, respectively On October I, the Board issued an order approv- ing the stipulation and transferring the proceedings to the Board, and denying the request for oral ar- gument Thereafter, the parties and Intervenors filed briefs The General Counsel and the Respond- ent also filed motions for permission to reply to each other's briefs, with proposed replies included with the motions These motions are granted, and the replies are accepted The General Counsel and SMWIA also filed motions that the Board take ad- ministrative notice of certain cases then pending before it Those motions are also granted The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel On the entire record and the briefs, the Board makes the following FINDINGS OF FACT I JURISDICTION The Employers are each Texas corporations with their principal offices and places of business in Houston, Texas TSMI is engaged in the industnal construction of processed pipe and related proc- essed manufacturing, GMI manufactures spiral pipe and sheet metal, and TDSI fabncates sheet metal and fiberglass duct work During the 12-month period prior to June 1986, a representative penod, the Employers each purchased goods and matenals valued in excess of $50,000 from points and places located outside the State of Texas, which were shipped to their respective operations During the same period, the Employers each derived gross revenues in excess of $1 million from the oper- ations of their respective businesses We find that TSMI, GM!, and TDSI are each employers en- gaged 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 297 NLRB No 104 SHEET METAL WORKERS LOCAL 54 (TEXAS SHEET METAL) 673 II ALLEGED UNFAIR LABOR PRACTICES A Stipulated Facts The Respondent, by virtue of Section 9(a) of the Act, is the exclusive representative for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment of employees in sep- arate units of all sheet metal workers and appren- tices employed by TSMI, GM!, and TDSI, respec- tively, in the 25-county area specified in the com- plaint On July 30, 1982, the Respondent entered into a collective-bargaining agreement with Houston Sheet Metal Contractors Association (HSMCA), covering the penod July 15, 1982, through March 31, 1985 HSMCA is composed of employers en- gaged in the sheet metal industry, and exists for the purpose of, inter aim representing its member-em- ployers in negotiating and administering collective- bargaining agreements with vanous labor organiza- tions, including the Respondent At the time HSMCA and the Respondent entered into the above collective-bargaining agreement, the Em- ployers were each members of HSMCA, and had assigned their bargaining rights to it On October 1, 1983, HSMCA and the Respond- ent executed an agreement modifying the above contract in numerous respects and extending it to March 31, 1986 On August 8, 1984, HSMCA and the Respondent again modified the agreement in question by, inter aim, inserting the interest arbitra- tion provisions (art X, sec 8) of the then-current Standard Form of Union Agreement (SFUA) 3 3 Art X, sec 8 of the SFUA, inserted Into the above-referred collec- tive-bargaining agreement, is set forth in relevant part as follows 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 ansmg out of the failure of the parties to negotiate a renewal of this Agree- ment 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 Con- tractors' Association, or both, notice to that effect shall be given to the National Joint Adjustment Board If the Co-Chairmen of the National Joint Adjustment Board be- lieve the dispute might be adjusted without going to final hearing before the National Joint Adjustment Board, each will then desig- nate a panel representative who shall proceed to the locale where the dispute exists as soon as convenient, attempt to conciliate the dif- ferences 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 Co- Chairmen of the National Joint Adjustment Board shall be promptly so notified without recommendation from the panel representatives Should the Co-Chairmen of the National Joint Adjustment Board 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 dis- pute 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 dem- Also on August 8, 1984, HSMCA and the Re- spondent submitted certain issues to the NJAB for resolution in accordance with the newly inserted interest arbitration provisions The complaint al- leges, the Respondent admits, and we find that through their then-membership in and assignment of bargaining nghts to HSMCA, each of the Em- ployers was a party to the July 15, 1982, through March 31, 1985 collective-bargaining agreement be- tween HSMCA and the Respondent, and to its 1- year extension to March 31, 1986, which contained article X, section 8 On August 24, 1984, the NJAB issued its deci- sion on the issues submitted to it on August 8, 1984 In its decision, the NJAB stated that "the local parties reopened the collective-bargaining agreement in an effort at improving the competi- tive position of the union contractor and to provide work for the union member" The NJAB decision directed, inter aim, that HSMCA and the Respond- ent enter into a collective-bargaining agreement covenng commercial work, for the period October 1, 1984, through March 31, 1986, with all other work remaining covered by the existing e, July 15, 1982, through March 31, 1985) contract, subse- quently extended to March 31, 1986 The NJAB decision also stated that "the concessions granted herein are solely in an attempt to make signatory contractors more competitive vis-a-vis non-union competition in the commercial field" Finally, the decision directed that the interest arbitration provi- sions of article X, section 8 of the SFUA be includ- ed into the collective-bargaining agreement direct- ed by the decision In this regard, the decision states as follows [Article X, Section 8] has been included be- cause of the [NJAB's] concern for the stability of the industry segments covered by the con- tract The provisions of Article X, Section 8 are therefore an integral part of the [NJAB's] order, and the concessions granted herein are directly tied to the incorporation of Article X, Section 8 in the contract mon of said Board shall be final and binding upon the parties, re- duced 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 received 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 repre- sentatives of the parties who appear at the hearing will be given the opportunity to present oral argument and to answer any questions raised by members of the Board Any briefs filed by either party in- cluding copies of pertinent exhibits shall also be exchanged between the parties and filed with the National Joint Adjustment Board at least twenty-four (24) hours in advance of the hearing 674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In December 1984, and in November and De- cember 1985, TSMI, GM!, and TDSI, respectively, each withdrew from and canceled their assignment of bargaining rights to HSMCA, and contempora neously notified the Respondent of their withdraw- als and cancellations of HSMCA's bargaining rights The Employers each requested individual bargaining with the Respondent in order to reach contracts covering each of the Employers' employ- ees in the above descnbed bargaining units During February and March 1986, each of the Employers had four negotiating sessions with the Respondent Dunng this course of bargaining, the Respondent sought, inter aim, to have the Employ ers agree to include the interest arbitration provi- sions of article X, section 8 in the new collective- bargaining agreements being negotiated Each of the Employers was opposed to this proposal, each sought a grievance and arbitration procedure other than that which is contained in article X Also during the course of bargaining, the Re- spondent maintained that if agreement on a con- tract was not reached with the Employers, then the Respondent would invoke interest arbitration under the provisions of article X, section 8 of the expiring contract The Employers were opposed to the sub- mission of any unresolved bargaining issues to the NJAB, each Employer maintaining that, having withdrawn from HSMCA, it was not bound by ar tide X, section 8 of HSMCA's contract with the Respondent On March 25, 1986,4 TDSI notified the Re- spondent in writing that, inter alia, it would not agree to the inclusion of article X (i e, in its entire- ty, the grievance and interest arbitration provi- sions) of the SFUA in the contract under negotia tion, that it resubmitted its earlier proposed alterna tive grievance proposal and that it would not "bar- gain, agree to, nor be bound by Article X, Section On March 26, GMI notified the Respondent in writing that it did not want to submit unresolved bargaining issues to interest arbitration under arti de X, section 8, because, inter aim (1) 'We did not have an opportunity to advise or consent when this Article was added to the contract", (2) 'We have no desire to have parties represent us which we did not pick", (3) "Your insisting on the [NJAB] will illegally interfere with this company s selection of the Collective Bargaining Representative", and (4) 'It is the opinion of our attorney that we are not requested [sic? required?] to submit to the [NJAB] ' 4 All the following dates are 1986 except where otherwise indicated On March 27, TSMI notified the Respondent in writing that it was "unable to sign the letter of deadlock that would have put into effect Article 10 Section 8 This firm will not participate in any joint proceedings Also on March 27, the Respondent notified NJAB and submitted issues to it on which the Re spondent asserted that a "deadlock' existed as to the negotiations between the Respondent and each of the Employers At the same time, the Respond ent agreed to drop its demand that article X, sec tion 8 be included in the next contracts with the Employers The Employers each objected to the Respondent s submission of unresolved issues to the NJAB, however, the Respondent did not withdraw its submission The Respondent met once each with TSMI, GM!, and TDSI in early April, following the Re spondent's submission of unresolved issues to inter- est arbitration The Respondent did not agree to withdraw its submission of issues to the NJAB The parties stipulated that because the Respondent did not withdraw its submission to the NJAB, no further bargaining occurred On May 8, TDSI notified the Respondent in writing that it would not participate in or be bound by the NJAB proceedings for the following rea sons 1 This company withdrew its bargaining nghts and membership from the Houston Sheet Metal Contractors Association 2 This company has bargained with Local 54 on an individual basis—not on a group basis 3 We are not members of the National SMACNA, and have no representation on the National Joint Adjustment Board 4 We consider your insistence on going to the National Joint Adjustment Board as a vio lation of law, and are filing charges protesting same with the National Labor Relations Board 5 We again urge you to bargain in good faith and return to the bargaining table Also on Me v 8, Charging Party Canterbury filed the instant unfair labor practice charges on behalf of the Employers The instant complaint issued on June 4 On June 27, the NJAB issued its unanimous deci sion on the matters submitted by the Respondent regarding unresolved issues in bargaining with the Employers In each case the decision 1 Noted that the Employer involved objected to the jurisdiction of the NJAB, but that the NJAB SHEET METAL WORKERS LOCAL 54 (TEXAS SHEET METAL) 675 had determined that the matter was properly before it for a final and binding determination 2 Except for the GMI decision, set forth the issues on which the Respondent and the Employer were unable to reach agreement 3 Noted that the Respondent had withdrawn its demand for inclusion of article X, section 8 of the SFUA in the contract under negotiation 4 Directed the Employer involved to execute a 3-year collective-bargaining agreement effective April 1, 1986, incorporating the same terms and conditions as in the collective-bargaining agree- ment in effect between HSMCA and the Respond- ent, with the exception of article X, section 8 5 Noted that, in accordance with article X, sec- tion 8(a) (1 e, of the expired July 15, 1982, through March 31, 1986 contract), the unanimous decision of the NJAB is final and binding on "the parties" B Contentions of the Parties The General Counsel contends that after an em- ployer has timely withdrawn from a multiemployer association, thereby changing the bargaining unit, the employer is no longer bound by the interest ar- bitration provisions of the multiemployer contract The General Counsel notes that the instant Em- ployers were not members of HSMCA, and that the bargaining unit had therefore become a single- employer unit The General Counsel points out that the language of article X, section 8 inserted into the 1982-1986 collective-bargaining agreement makes reference to the association ("the Local Contractors' Association") that bargained with the Respondent and, according to the General Counsel, "renders further support for the fact that submis- sions are contemplated among the association and Respondent and not employers who had with- drawn from said association" The General Counsel further argues that the minutes of the several bargaining sessions between the Respondent and each of the Employers demon- strates give-and-take during the course of bargain- ing, and does not show that a valid impasse existed so as to privilege unilateral action by the Respond- ent The General Counsel asserts that the term "deadlock" in article X, section 8, on which the Respondent based its unilateral submission of unre- solved issues to interest arbitration, should not be considered to be the equivalent of impasse, and that each Employer maintained it was not dead- locked The General Counsel argues that there was no deadlock over contract terms and conditions, but rather over what the General Counsel asserts was the desire of the Respondent to have the NJAB impose the new HSMCA contract, includ- ing article X, section 8, on each Employer The General Counsel submits that the Respondent went through the mechanics of bargaining, maintaining and insisting that each Employer sign that SFUA, which contained provisions (such as art X, sec 8) to which the Employers would not agree to be bound The General Counsel argues, in closing, as follows Under this ploy, Respondent was able to de- clare "deadlock" in order to be able to submit the matter to the NJAB Respondent knew full well as, indeed did the Employers, that the NJAB being totally disinterested in employers, not part of it, would impose the new HSMCA contract Respondent remained steadfast in its position that the NJAB would write the con- tract which indeed it did, and refused to accept any deviation in the grievance proce- dure which would subject each Employer to a bargaining representative other than one of its own choosing It is respectfully submitted that the violations of Section 8(b)(3) and, indeed,, Section 8(b)(1)(B) have been made out The Employers jointly argue that by withdraw- ing from and canceling their assignment of bargain- ing nghts to HSMCA, they preserved their rights to designate their own bargaining representatives, and they specifically have not authorized HSMCA to negotiate new contracts with the Respondent on behalf of the Employers They further argue that because their selection of their own bargaining rep- resentatives is not a mandatory subject of bargain- ing, the Respondent's insistence that the Employers "bargain through a multi-employer bargaining unit" violates Section 8(b)(1)(B) and (3) of the Act The Employers assert that the Respondent's intent in its negotiations with the Employers was to claim that the negotiations were "deadlocked," put the issue before the NJAB pursuant to article X, sec- tion 8 of the expired contract, and have the Em- ployers become bound by the same terms the Re- spondent negotiated with HSMCA, with the result that the Employers will have been required to ne- gotiate their new contracts through the NJAB, rather than through bargaining representatives of their own choosing The Respondent argues that the Employers should be just as bound by the interest arbitration clause in the expiring contract as the multiemploy- er association, HSMCA, which negotiated it on their behalf The Respondent argues that HSMCA itself could not lawfully renege on the contractual interest arbitration clause, and that to permit the Employers to do so would "serve to undermine the express and fundamental policy of the Act to en- courage the practice and procedure of collective 676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bargaining as an important means for achieving in- dustrial peace and stability" The Respondent also notes that under Chemical Workers Local 1 v Pitts- burgh Plate Glass Go, 404 US 157 (1971), al- though an employer may unilaterally modify a per- missive term of its collective-bargaining agreement without committing an unfair labor practice, a union is nevertheless permitted to file a breach of contract action under Section 301 of the Act The Respondent argues It would be totally incongruous for the Board to recognize the Supreme Court's holding in Pittsburgh Plate Glass that "the remedy for uni- lateral mid-term modification to a permissive term lies in an action for breach of contract not in an unfair-labor-practice proceed- ing," while at the same time finding that a union commits an unfair labor practice when it pursues the Supreme Court-mandated remedy! [Citation omitted ] In response to the General Counsel's and the Employers' argument that the Respondent's sub- mission of unresolved bargaining issues to interest arbitration, in spite of the Employers' withdrawal from the HSMCA, restrains and coerces those Em- ployers in the selection of their collective-bargain- ing representatives, the Respondent argues that the Employers waived their right to select another rep- resentative when they selected HSMCA to bargain for them The Respondent further argues that there is no evidence in the record, including the lan- guage of the contract, that could lead the Board to conclude that the interest arbitration clause was not meant to apply to employers who dropped their multiemployer association membership The Re- spondent asserts that HSMCA voluntarily agreed to an interest arbitration clause as part and parcel of an entire collective-bargaining agreement, and the Employers, by assigning their bargaining rights to HSMCA, are bound by the interest arbitration provisions, including the imposition of a renewal agreement for "one more term" SMWIA argues (in addition to the arguments also raised by the Respondent) that the Respond- ent's submission of unresolved issues to the NJAB for interest arbitration does not constitute an in- fringement of the Employers' rights to choose their own representatives for collective-bargaining pur- poses, because article X, section 9 of the collective- bargaining agreement in question makes it clear that the NJAB members are not engaged in parti- san or adversarial representational endeavors Rather, as set forth in article X, section 9, "It is further agreed that individuals serving as members of [the Local Joint Adjustment Board, the National Panel, or the NJAB] are arbitrators performing a quasi judicial function" Thus, SMWIA argues that there is no basis for inferring that the SMACNA representatives on the NJAB would be hostile to the Employers' interests because the Employers were not members of SMACNA and had with- drawn their membership in HSMCA In sum, SMWIA asserts In the context of the record in the instant case, therefore, the NJAB is as appropriate an arbi- tral source as an individual chosen from a panel of names submitted by the Federal Medi- ation and Conciliation Service The NJAB is the tnbunal selected for and on behalf of the Charging-Party Employers by their agent and there is no reason why they should be excused from their contractual obligation to resort to it, under given circumstances, to determine the terms of their successor collective-bargaining agreement with Local 54 The contentions raised by SMACNA are essen- tially the same as those raised by the Respondent and/or SMWIA C Analysis and Conclusions The issue in this case is whether the Respondent violated Section 8(b)(1)(B) and (3) of the Act by unilaterally submitting unresolved bargaining issues between the Respondent and the Employers to the interest arbitration procedures contained in the HSMCA multiemployer association collective-bar- gaining agreement with the Respondent after the Employers had timely withdrawn from and can- celed the assignment of their bargaining rights to HSMCA The same general issue was recently resolved by the Board in Electrical Workers IBEW Local 113 (Collier Electric), 296 NLRB 1095 (1989) There, on facts materially similar to those in the instant case, the Board majority (with Chairman Stephens dis- senting) set forth the following framework for anal- ysis of this general issue First, we shall consider whether there is a reasonable basis in fact and law for the union's submission of unresolved bargaining issues to interest arbitration In determining whether there is, we will decide whether the parties' collective-bargaining agreement arguably still binds a single employer, who has timely with- drawn from the multiemployer association, to the interest arbitration provision If the collec- tive-bargaining agreement at least , arguably binds the employer to the arbitration provi- sion, the union will be free to seek enforce- ment of its contractual rights by submitting the unresolved bargaining issues to interest arbitra- SHEET METAL WORKERS LOCAL 54 (TEXAS SHEET METAL) 677 non, and by pursuing a Section 3O1 suit in court, without violating Section 8(b)(3) or Sec- tion 8(b)(1)(B) of the Act On the other hand, if the agreement does not even arguably bind the employer to the arbitration provision, i e, the contract contains language explicitly stat- ing that an employer who has withdrawn from the multiemployer association is not bound to interest arbitration, then the union's submission of the unresolved bargaining issues to interest arbitration would constitute bad-faith bargain- ing and coercion of the employer in the selec- tion of its collective-bargaining representative, in violation of Section 8(b)(1)(B) [Foot- note omitted ] Id at 1098 The Collier majority went on to emphasize, how- ever, that the presence of an interest arbitration provision in a collective-bargaining agreement does not relieve employers and unions of their responsi- bilities to engage in good-faith bargaining In this regard, the majority stated that when parties to a contract containing an interest arbitration provision bargain for a renewal agreement, the Board, on the proper invocation of its jurisdiction, will review that bargaining to ensure that the parties have ne- gotiated in good faith prior to the submission of the unresolved issues to interest arbitration Id at 1098 Thus, bad-faith bargaining by a party prior to its unilateral submission of unresolved issues to inter- est arbitration will render that submission unlawful But, as the majority stated in Collier If, however, after good-faith but ultimately un- successful bargaining, a party chooses to pursue its contractual nghts and submit the matter to interest arbitration (either because the parties have reached an impasse or because the contract provides for submission of the dis- pute to interest arbitration at that time), the party will not violate Section 8(b)(3) or Sec- tion 8(a)(5) by submitting the matter to interest arbitration Id at 1098 Applying this framework for analysis to the facts in the instant case, we note at the outset that the collective-bargaining agreement contains no lan- guage explicitly stating that an employer who has withdrawn from the multiemployer association is not bound to the contractual interest arbitration provisions Rather, we find, for the reasons dis- cussed below, that the interest arbitration provi- sions could at least arguably be interpreted as bind- ing on the Employers The interest arbitration provisions themselves refer preliminarily to the settlement of controver- sies or disputes arising out of the failure of "the parties" to negotiate a renewal agreement Thereaf- ter, the interest arbitration provisions refer to "dif- ferences between the parties," and the unilateral right of "either party" to submit unresolved dis- putes to the NJAB on unsuccessful completion of certain local initial attempts at dispute resolution Finally in this context, article X, section 8 provides that the "representatives of the parties who appear at the hearing" have certain procedural rights, "either party" may file briefs with the NJAB, and the unanimous decisions of the NJAB shall be binding "upon the parties" We find that these con- tract provisions, like the contract provisions in question in Collier, could, arguably, be interpreted as binding the Employers to the interest arbitration provisions, as single employers on whose behalf those provisions were negotiated and agreed to by HSMCA, at a time when the Employers were still members of and had not yet canceled the assign- ment of their bargaining rights to that multiem- ployer association Id at 1099 5 In this regard, we also find it relevant that most of article X itself (i e, the entire article, containing grievance-arbitration provisions as well as the in- terest arbitration provisions of art X, sec 8) is written in terms of the "Employer," clearly refer- nng to individual employers thus, e g, "Griev- ances of the Employer or of the Union shall be settled between the Employer directly involved and the duly authorized representative of the Union, if possible An Employer may have the local Association present to act as his representative" Arti- cle X, Section 1 (emphasis added) We also note (1) that the complaint alleges, and the Respondent admits, that the Employers were "parties" to the July 15, 1982, through March 31, 1985 collective-bargaining agreement with the Re- spondent, (2) that while the Employers were still members of HSMCA and "parties" to the collec- tive-bargaining agreement, it was (a) extended (on October 1, 1983) to March 31, 1986, (b) modified (on August 8, 1984) to insert the interest arbitration provisions of article X, section 8 of the SFUA, and (c) further modified, pursuant to NJAB decision 'We note that art X, sec 8 does refer once expressly to "the Local Contractors' Association," in subsec (a) This is the only express refer- ence to that entity in those terms in the Interest arbitration provisions We also note in this general regard that although the preamble to the col- lective-bargaining agreement Itself states that HSMCA will be "herein- after referred to as 'Contractors," that term is used differently in the im- mediately following recognition clause, where "contractors" clearly refers to individual employer-members of HSMCA "The Union is [rec- ognized] as bargaining agent for all [unit employees] who may be em- ployed by contractors party to this agreement [In specified counties)' (em- phasis added) Thereafter, the term contractor" is used in the contract in clear reference to individual employer-members of HSMCA, and in some places is used Interchangeably with the term "employer" 678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (on August 24, 1984), to set special terms for com- mercial work for the period October 1, 1984, through March 31, 1986, and, inter aim., specifically to include article X, section 8 The net effect of the above pleadings and stipulated facts is that the Em- ployers are characterized by the parties to the in- stant proceeding as "parties" to the contractual in- terest arbitration provisions Based on all the above factors, we find that there was a reasonable basis in fact and law for the Re- spondent to have submitted the unresolved bargain- ing issues to interest arbitration Id at 1099 Finally, the record does not show that the inter- est arbitration mechanism was used by the Re- spondent to relieve it of its duty to bargain with the Employers for new contracts Rather, the evi- dence shows that each of the Employers met sever- al times in negotiating sessions with the Respond- ent prior to the latter's contractually defensible uni- lateral determination that negotiations for a renew- al contract were deadlocked and its consequent submission of the issues to interest arbitration, and that each of the Employers met once again with the Respondent after the latter's submission of the unresolved issues to the NJAB There is no evi- dence that the Respondent engaged in bad-faith bargaining either before or after its submission of unresolved issues to the NJAB In light of all the above considerations, we con- clude that the Respondent did not violate Section 8(b)(1)(B) and (3) of the Act as alleged 6 ORDER The complaint is dismissed CHAIRMAN STEPHENS, dissenting As set forth in my dissenting opinion in Electrical Workers IBEW Local 113 (Collier Electric), 296 NLRB 1095 (1989), my position is that any alleged 6 Electrical Workers IBEW Local 113 (Collier Electric), 296 NLRB 1095 (1989) waiver of an employer's nght to choose its own representatives for collective bargaimng must be unequivocal On the facts of this case, as stipulated by the parties to this proceeding and set forth in full by my colleagues, I find that the interest arbi- tration clause (art X, sec 8 of the 1984-1986 col- lective-bargaining agreement) does not clearly and unmistakably apply to the three Charging Party Employers, each of whom timely terminated its re- lationship with the Houston Sheet Metal Contrac- tors Association (HSMCA) and indicated an inten- tion to bargain individually for a successor agree- ment outside of the multiemployer bargaining framework Although, as my colleagues stress, article X, sec- tion 8 1 does refer in its introductory paragraph to settlement of "any controversy or dispute arising out of the failure of the parties to negotiate a re- newal of this Agreement" (emphasis added), the question for me is whether the term "parties" clearly includes, along with the Union and HSMCA, any individual employer In my view it does not because the first operative paragraph— Section 8(a)—explicitly grants a contractual right to invoke interest arbitration only to the "Local Union" and the "Local Contractors Association" In this light, then, the references to "parties" else- where in article X, section 8 do not clearly refer to individual employers who have withdrawn from multiemployer bargaining Thus, because the collective-bargaining agree- ment does not set out a sufficiently clear waiver of an individual employer's right to select its own col- lective-bargaining representative, I would find that the Respondent violated Section 8(b)(1)(B) and (3) of the Act by invoking article X, rpm', 8, andin sistmg that unresolved bargaining issues be deter- mined through the contractual interest arbitration procedures 'Cited by the majority at fn 3 t V ,