Sheet Metal Workers' International Association, Local Union No 283

National Labor Relations Board - Board Decisions

Jan 31, 1990

297 N.L.R.B. 658 (N.L.R.B. 1990)

658 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers' International Association,
Local Union No 283 and James Salazar
Conditioned Air & Refrigeration Company, Inc ,
d/b/a Conditioned Air, a/k/a Cargo and Sheet
Metal & Air Conditioning Contractors National
Association, Inc , Party in Interest and Sheet
Metal Workers' International Association,
AFL-CIO, Party-in-Interest Cases 32-CB-
1920, 32-CB-1936, 32-CB-2046, and 32-CB-
2118
January 31, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On July 29, 1987, Administrative Law Judge
Fredenck C Herzog issued the attached decision
The General Counsel filed exceptions and a sup-
porting brief, the Respondent filed a brief in re-
sponse to the exceptions, and Party in Interest
Sheet Metal Workers' International Association,
AFL-CIO (SMWIA) filed a brief in support of the
judge's decision
The National Labor Relations Board has delegat-
ed its authonty in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions' and briefs and
has decided to affirm the judge's rulings, findings,2
and conclusions s and to adopt the recommended
Order, for the reasons set forth below
1 There were no exceptions to the judge s dismissal of the allegations
that (1) the Respondent Union unlawfully attempted to compel the
Charging Party Employer to adhere to the provisions of a collective bar
gaining agreement which Included a union security clause at a time
when the Employer had withdrawn recognition from the Respondent on
the asserted basis of a reasonable doubt about the Respondent s continued
majority status and (2) that the Respondent unlawfully restrained and co
erced the Employer in the latter s selection of its representatives for the
purposes of collective bargaining and the adjustment of grievances by
preferring charges against and fining Shop Foreman Gary Lindblom In
the absence of exceptions to the judge s dismissal of these allegations nel
ther of these Issues is before the Board for review and there is therefore
no need for us to consider the judge s analysis of these matters
2 In the penultimate paragraph of sec HI B of his decision the judge
finds that the November 8 1984 decision of the National Joint Adjust
ment Board (NJAB) required the Employer to execute a 3 year collec
tive bargaining agreement extending from 1 July 1984 to 30 June 1987
identical in all respects to the then current agreement between the Re
spondent and the [multiemployer] Association with the exception of in
terest arbitration provisions However contrary to this finding the
NJAB decision does not expressly require that the collective bargaining
agreement It directed be identical to the then current contract in effect
between the Respondent and the multiemployer association Sheet Metal
& Air Conditioning Contractors Association of Central California Inc
(the Association) Actually the then current contract between the Re
spondent and the Association was for only 1 year July 1 1984 through
June 30 1985 rather than the 3 year contract that the NJAB directed the
Respondent and the Employer to enter Into The judge s misstatement of
the record in this regard does not affect our result
'In his formal Conclusion of Law 3 the judge concludes that Gary
Lindblom was a representative of the Employer for the purposes of col
lective bargaining and the adjustment of grievances However mconsist
I FACTS
The relevant facts, as set forth more fully by the
judge, are essentially as follows
At all times material, pursuant to Section 9(a) of
the Act, the Respondent was the exclusive bargain-
ing representative of the Employer's employees in
the unit set forth by the judge in the first para
graph of section III,D of his attached decision 4
The Sheet Metal & Air Conditioning Contrac
tors Association of Central California (the Associa-
tion) was at all times material an organization of
employers existing for the purpose, inter aim, of
representing its constituent employer members in
negotiating and administering collective-bargaining
agreements with the Respondent
The Employer was a member of the Association
from about 1950 through February 29, 1984, and
was bound to successive collective bargaining
agreements between the Respondent and the Asso-
ciation, including the agreement entered into on
October 16, 1981, covering the period July 1,
1981-June 30, 1983
On September 26, 1983, the Respondent and the
Association entered into a 1-year extension of their
collective bargaining agreement, until June 30,
1984 Both the basic contract and the extension
contained interest arbitration provisions (art X,
sec 8), set forth in pertinent part in section III,B,
of the judge s decision
On February 29, 1984, 5 the Employer notified
both the Association and the Respondent in writing
that the Employer would continue to participate in
the Association, but that it was revoking its assign-
ment of bargaining rights to the Association effec
tive immediately, and that thereafter the Employer
would bargain independently 6
In a March 22 letter to the Employer the Re
spondent acknowledged receipt of the Employer's
February 29 letter revoking its assignment of bar
gaining rights to the Association, requested that
ently with this formal Conclusion of Law the judge finds in the final two
paragraphs of sec III G of his decision that the evidence is insufficient to
allow a finding that Lindblom engaged in collective bargaining griev
ance adjustment or some other closely related activity such as contract
Interpretation There were no exceptions to either the judge s conclusion
or his finding and the underlying Issue is therefore not before the Board
for review
4 In this regard the parties stipulated that the Respondent was the ex
elusive 9(a) representative until at least June 30 1984 and the judge
found without subsequent exception that the Employer s later withdraw
al of recognition from the Respondent on July 30 1984 was not sup
ported by a reasonable doubt about the Respondent s continued majority
status
5 All the following dates are 1984 unless otherwise indicated
'The judge found without subsequent exception that the parties to
the instant unfair labor practice proceeding appear to have premised their
respective arguments on the assumption that for purposes of this case
the Employer had effectively withdrawn from the Association with this
February 29 letter
297 NLRB No 103
SHEET METAL WORKERS LOCAL 283 (CONDITIONED AIR) 659
"our contract" be opened for negotiations, and re-
quested that meetings for the purpose of negotiat-
ing a new contract between the Employer and the
Respondent be held in May
As it turned out, however, contract negotiations
between the Respondent and the Employer did not
begin until July At the first session, on July 5, the
Employer presented a lengthy contract proposal
After caucusing to discuss it, the Respondent asked
for more time to review it thoroughly There was
no further substantive discussion at this meeting,
and the parties set July 16 as the date for the next
negotiating session
At the July 16 session, the Respondent presented
a lengthy counterproposal to the Employer's July 5
proposal After the Employer caucused to consider
it, the parties agreed to meet again on July 23
However, that meeting was canceled due to a busi-
ness emergency involving the Employer's principal
negotiators Another meeting was scheduled for
July 27, but that meeting was also canceled, due to
a medical emergency involving the Respondent's
pnncipal negotiator •
On July 30, the Employer notified the Respond-
ent in writing that the Einployer had recently re-
ceived evidence that (in the Employer's view)
demonstrated that the Respondent no longer repre-
sented a majority of the Employer's unit employ-
ees, and that the Employer could no longer lawful-
ly continue to negotiate with the Respondent 7
There were no further negotiations between the
Respondent and the Employer On October 1, the
Respondent invoked interest arbitration by notify-
ing the National Joint Adjustment Board (NJAB)
that it considered its negotiations with the Employ-
er to be "deadlocked" within the meaning of arti-
cle X, section 8, of the expired collective-bargain-
ing agreement between the Respondent and the As-
sociation A hearing was held before the NJAB on
November 6 Although the Employer received
notice of the heanng and was given the opportuni-
ty to appear and testify before the NJAB, it did not
appear at the hearing The NJAB issued its written
decision on November 8, in which it required, inter
aim, that the Employer execute a 3-year collective-
bargaining agreement with the Respondent for the
, period July 1, 1984-June 30, 1987, with (1) wages
and benefits during the first year to be the same as
those contained in the Respondent's July 1, 1984-
June 30, 1985 collective-bargaining agreement with
the Association, (2) wage and benefit reopeners for
the period July 1, 1985-July 1, 1986, with the
NJAB retaining jurisdiction regarding the reopen-
7 As noted above, the judge found that the Employer's withdrawal of
recognition was ultimately not based on a reasonable doubt about the Re-
spondent's continued majority status
ers "in the event the parties are unable to resolve
them in local negotiations", and (3) deletion of arti-
cle X, section 8, the interest arbitration provisions
In February 1985, the Employer filed a petition
in U S district court to vacate the above NJAB in-
terest arbitration award The Respondent filed a
counterpention to confirm the award On August
10, 1987, shortly after the judge issued his decision
in the instant proceeding, dismissing the complaint
in its entirety, the Employer notified the judge in
writing that it had ceased operation on May 30,
1986, filed for bankruptcy on September 3, 1986,
and had permanently closed On November 1,
1989, the district court dismissed the Employer's
petition to vacate the 1984 NJAB award, for lack
of prosecution
II ANALYSIS AND CONCLUSIONS
The issue in this case is whether the Respondent
violated Section 8(b)(1)(B) of the Act by (a) unilat-
erally submitting unresolved bargaining issues be-
tween it and the Employer to the interest arbitra-
tion procedures contained in the expired collective-
bargaining agreement between the Respondent and
the Association, after the Employer had timely
withdrawn from and revoked its assignment of bar-
gaining rights to the Association, and (b) by seek-
ing to impose and enforce the NJAB-directed col-
lective-bargaining agreement on the Employer,
even though that agreement was reached by a bar-
gaining representative allegedly not chosen by the
Employer
This same general issue was recently resolved by
the Board in Electrical Workers IBEW Local 113
(Collier Electric), 296 NLRB 1095 (1989), which
issued after the judge's decision in the instant case
There, on facts materially similar to those in the in-
stant case, the Board majority, with Chairman Ste-
phens dissenting, set forth a framework for analysis
of this general issue, under which the Board first
considers whether there is a reasonable basis in fact
and law for a union's submission of unresolved bar-
gaining issues to interest arbitration, i e, whether
the collective-bargaining agreement in question ar-
guably still binds a single employer, who has
timely withdrawn from the multiemployer associa-
tion, to the contractual interest arbitration provi-
sions If it is determined that the collective-bargain-
ing agreement at least arguably still binds the em-
ployer to the interest arbitration provisions, the
union will be free to seek enforcement of those
provisions, including pursuit of a court suit to en-
force the contract, without violating Section
8(b)(1)(B) or Section 8(b)(3) of the Act On the
other hand, the majority in Collier held that if the
collective-bargaining agreement does not even ar-
660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
guably bind the single employer to the interest ar-
bitration provisions, then the union's submission of
unresolved bargaining issues to interest arbitration
would constitute bad-faith bargaining and coercion
of the employer in the selection of its collective-
bargaining representative, in violation of Section
8(b)(1)(B) The Collier majority went on to empha-
size, however, that the presence of an interest arbi-
tration provision in a collective-bargaining agree-
ment does not relieve employers and unions of
their responsibilities to engage in good-faith bar-
gaining and, upon proper invocation of its jurisdic-
tion, the Board will review the bargaining for a re-
newal agreement to ensure that the parties have
bargained in good faith prior to the submission of
any unresolved issues to interest arbitration Id at
1098
In Sheet Metal Workers Local 54 (Texas Sheet
Metal), 297 NLRB 672, issued today, we applied
the Collier framework for analysis to facts substan-
tially similar to those in the instant case Indeed,
the interest arbitration provisions at issue in Texas
Sheet Metal are identical in all material respects to
those at issue here—article X, section 8 of the
Standard Form of Union Agreement (SFUA) for
the Sheet Metal, Roofing, Ventilation and Air Con-
ditioning Contracting Divisions of the Construction
Industry
As in Collier and Texas Sheet Metal, the collec-
tive-bargaining agreement in the instant case does
not contain language explicitly stating that an em-
ployer who has withdrawn from the multiemployer
association is no longer bound to the contractual
interest arbitration provisions Moreover, as in
Texas Sheet Metal, the interest arbitration provi-
sions in this case refer preliminarily to the settle-
ment of controversies or disputes arising out of the
failure of "the parties" to negotiate a renewal
agreement, and refer thereafter to "differences be-
tween the parties" and the unilateral right of
"either party" to submit unresolved disputes to the
NJAB upon unsuccessful completion of certain
local initial attempts at dispute resolution Finally
in this regard, as in Texas Sheet Metal, the instant
interest arbitration provisions provide 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 contract
provisions, like the contract provisions in question
in Texas Sheet Metal and in Collier, could arguably
be interpreted as binding the Employer to the in-
terest arbitration provisions, as a single employer
on whose behalf those provisions were negotiated
and agreed to by the Association, at a time when
the Employer was still a member of and had not
yet revoked the assignment of its bargaining rights
to the Association
Also in regard to the question of whether the
Employer is arguably bound to the interest arbitra-
tion provisions, we note that the complaint alleges,
and the Respondent admits, that the Employer, by
virtue of its membership in the Association prior to
February 29, 1984, was a "party" to the July 1,
1981-June 30, 1983 (extended through June 30,
1984) collective-bargaining agreement between the
Respondent and the Association, which, as seen, in-
cluded the interest arbitration provisions in ques-
tion, article X, section 8 8
Based on all the above factors, we find that the
interest arbitration provisions in question, like the
almost identical ones in Texas Sheet Metal, could at
least arguably be interpreted as binding on the Em-
ployer, and that there is therefore a reasonable
basis in fact and law for the Respondent's submis-
sion of unresolved bargaining issues to interest arbi-
tration
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 Employer for a new contract Rather, the evi-
dence shows that the Respondent met twice in ne-
gotiating sessions with the Employer, exchanging
lengthy proposals, prior to the Respondent's con-
tractually defensible unilateral determination that
negotiations for a renewal contract were dead-
locked and its consequent submission of the issues
to interest arbitration There is no evidence that the
Respondent engaged in bad-faith bargaining either
before or after its submission of unresolved issues
to the NJAB 9
In light of all the above considerations, we con-
clude that the Respondent did not violate Section
8(b)(1)(B) of the Act as alleged 10
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed
a Furthermore in this regard, in the Employer's February 29, 1984
written notification to the Respondent and the Association that It was re-
voking its assignment of bargaining rights to the Association, the Em-
ployer states that it is "a party" to the July 1, 1981-June 30, 1984 (as
extended) collective-bargaining agreement between the Respondent and
the Association
9 In any event, the complaint does not allege a failure on the part of
the Respondent to bargain in good faith prior to its submission of unre-
solved Issues to Interest arbitration Indeed, at the hearing the General
Counsel reiterated that there was no 8(b)(3) allegation in the complaint,
and that none was being pursued
'° Sheet Metal Workers Local 54 (Texas Sheet Metal), 297 NLRB No
104, Electrical Workers 1BEW Local 113 (Collier Electric), 296 NLRB
11195 (1989)
SHEET METAL WORKERS LOCAL 283 (CONDITIONED AIR) 661
CHAIRMAN STEPHENS, dissenting in part
1 would find, for the reasons set forth in my dis-
senting opinions in Electrical Workers IBEW Local
113 (Collier Electric), 296 NLRB 1095 (1989), and
Sheet Metal Workers Local 54 (Texas Sheet Metal),
297 NLRB 672, that the Respondents violated Sec-
tion 8(b)(1)(B) of the Act by (1) insisting that un-
resolved bargaining issues be settled through the
interest arbitration provisions of the 1983-1984 ex-
tension of the collective-bargaining agreement, and
(2) filing, in the Charging Party Employer's Feder-
al court suit to vacate the resulting arbitration
award, a counterpetition to confirm the award 1
1 I would find the filing of the counterpetition to confirm the award to
be a violation only because it is part and parcel of the Respondent's in-
sistence that a collective-bargaining agreement determined by the NJAB
be Imposed on the Employer rather than having the terms of an agree-
ment negotiated by the Employer's chosen representatives It would be a
different case if a union were merely seeking a declaratory judgment
from a court concerning its rights under an agreement Under my view,
however, obtaining a declaratory judgment in its favor from a court
would not necessarily immunize a union's insistence on imposing, rather
than negotiating, an agreement In other words, the Board would still be
free to determine for itself whether the language of the agreement met
the statutory requirements for waiver See Collier Electric Co, supra, dis-
senting opinion at fns 8 and 14
Daniel F Altemus Jr. Esq , for the General Counsel
Kathryn A Sure, Esq (Wylie, Blunt, McBride & Jesmger),
of San Jose, California, for the Respondent
Stephen T Davenport Jr, Esq (Finkle & Stroup), of
Fresno, California, for the Charging Party
DECISION
STATEMENT OF THE CASE
FREDERICK C HERZOG, Administrative Law Judge
This matter was heard by me in Fresno, California on 29,
30, and 31 January and 5 and 6 February 1986 The
charge in Case 32-CB-1920 was filed on 3 December
1984 by James Salazar, an individual The charges in
Cases 32-CB-1936, 32-CB-2046, and 32-CB-2118 were
filed by Conditioned Air & Refrigeration Company, Inc ,
d/b/a Conditioned Air, a/lc/a CARCO (the Employer)
on 20 December 1984, 3 May 1985, and 31 July 1985, re-
spectively
On 31 May 1985, the Acting Regional Director for
Region 32 of the National Labor Relations Board
(Board) issued an order consolidating cases, consolidated
complaint and notice of hearing in Cases 32-CB-1920
and 32-CB-1936, alleging that Sheet Metal Workers'
International Association, Local Union No 283 (Re-
spondent) committed certain violations of Section
8(b)(1)(B) of the Act
On 12 September 1985, the Regional Director for
Region 32 of the Board issued an order consolidating
cases, amended consolidated complaint and notice of
hearing in Cases 32-CB-1920, 32-CB-1936, 32-CB-2046,
and 32-CB-2118, alleging that the Respondent commit-
ted certain violations of Section 8(b)(1)(A) and (B) of the
Act
On 18 December 1985, the Regional Director for
Region 32 of the Board issued a second amended con-
solidated complaint and notice of hearing alleging viola-
tions of Sections 8(b)(1)(A) and (B) and 8(b)(2) of the
Act Respondent's answer to the aforementioned com-
plaint, duly filed, denies the commission of any unfair
labor pratices
The Employer and Respondent appeared at the hear-
ing through counsel and were given full opportunity to
participate, to introduce relevant evidence, to examine
and cross-examine witnesses, to argue orally, and to file
briefs Based on the record, and my consideration of the
briefs filed by counsel for the General Counsel, counsel
for the Employer, counsel for Respondent, counsel for
Sheet Metal & Air Conditioning Contractors National
Association, Inc , and counsel for Sheet Metal Workers'
International Association, AFL-CIO,' and my observa-
tion of the demeanor of the witnesses, I make the follow-
ing
FINDINGS OF FACT
I JURISDICTION
Based on the allegations of the second amended con-
solidated complaint, as admitted by Respondent's answer
which it orally amended at the hearing, I find and con-
clude that the Employer is a State of California corpora-
tion with an office and place of business in Fresno, Cali-
fornia, where it is engaged in the business of fabrication
and nonretail sale and installation of plumbing, refrigera-
tion, and other related products During the past 12
months preceding the issuance of the complaint, the Em-
ployer, in the course and conduct of its business oper-
ations, purchased and received goods and services valued
in excess of $50,000 directly from suppliers located out-
side the State of California
It is admitted and I find that the Employer is an em-
ployer engaged in and affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act
II THE LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find
that Respondent is now, and at all times material herein
has been, a labor organization within the meaning of Sec-
tion 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Issues
The principal issues in this case are (1) whether the
Employer had a good-faith doubt of the Respondent's
continued majority status at the time it withdrew recog-
nition from the Respondent and, if so, whether the Re-
spondent has violated and is violating Sections 8(b)(1)(A)
1 On 1 August 1985 Sheet Metal & Air Conditioning Contractors Na-
tional Association, Inc filed a Motion to Intervene in this proceeding,
and on about 5 September 1985, Sheet Metal Workers' International As-
sociation, AFL-CIO filed a similar motion Said motions were granted
by Order dated 13 August and 11 September 1985, and these parties are
denominated as parties in Interest They did not appear at the heanng,
but did file briefs
662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and 8(b)(2) of the Act by thereafter attempting to
compel the Employer to adhere to the provisions of a
collective-bargaining agreement which includes a union-
security clause, (2) whether, regardless of the bona fides
of the Employer's doubt of the Respondent's continued
majority status, the Respondent violated Section
8(b)(1)(B) of the Act by attempting to enforce the inter-
est arbitration articles of the expired contract between
Sheet Metal & Air Conditioning Contractors Association
of Central California, Inc (the Association) and the Re-
spondent, at a time when the Employer had withdrawn
bargaining authority from the Association and elected to
bargain individually with the Respondent regarding the
terms of a successor contract
A separate, unrelated issue is whether Respondent, by
preferring charges against and fining a supervisor-
member working for the Employer, has restrained or co-
erced the Employer in the selection of his representative
for the purposes of collective bargaining or the adjust-
ment of grievances, in violation of Section 8(b)(1)(B) of
the Act
B Background
The Employer is engaged in the construction industry
as a sheet metal contractor It has been a member of the
Association since the Association's incorporation in 1950
Thereafter, until the events involved in the instant case,
the Employer has remained a member of the Association
and has been bound to successive collective-bargaining
agreements between the Association, an affiliate of Sheet
Metal & Air Conditioning Contractors National Associa-
tion, Inc (SMACNA), and the Respondent herein
The Association and Respondent entered into a succes-
sor collective-bargaining agreement entitled "Standard
Form of Union Agreement" (Agreement) extending from
1 July 1981 to 30 June 1983, and thereafter entered into a
1-year extension of the Agreement which expired on 30
June 1984 2 Article X of the Agreement contains a
lengthy grievance procedure providing for the settlement
of grievances between the parties which arise out of the
interpretation or enforcement of the Agreement It also
stipulates that grievances not settled through the griev-
ance machinery provided may be appealed to a Local
Joint Adjustment Board, established by Respondent and
the Association, and thereafter to the National Joint Ad-
justment Board (the NJAB), established by the Sheet
Metal Workers' International Association and
SMACNA
Article X, Section 8(a) of the Agreement, commonly
referred to as an "interest arbitration" provision is as fol-
lows
In addition to the settlement of grievances arising
out of interpretation or enforcement of this Agree-
ment as set forth in the preceding sections of this
Article, any controversy or dispute arising out of
the failure of the parties to negotiate a renewal of
this Agreement shall be settled as hereinafter pro-
vided
2 Unless noted to the contrary, all dates hereafter shall refer to calen-
dar year 1984
(a) Should the negotiations for renewal of this
Agreement become deadlocked in the opinion of
the Local Union or of the Local Contractors' Asso-
ciation, or both, notice to that effect shall be given
to the office of the General President of Sheet
Metal Workers' International Association and the
national office of the Sheet Metal & Air Condition-
ing Contractors' National Association, Inc If the
General President of Sheet Metal Workers' Interna-
tional Association and the Chairman of the Labor
Committee of Sheet Metal and Air Conditioning
Contractors' National Association, Inc believe the
dispute might be adjusted without going to final
hearing before the National Joint Adjustment
Board, each will then designate a panel representa-
tive who shall proceed to the locale where the dis-
pute exists as soon as convenient, attempt to concil-
iate 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 Sheet Metal
Workers' International Association and the national
office of Sheet Metal and Air Conditioning Con-
tractors' National Association, Inc shall be prompt-
ly so notified without recommendation from the
panel representatives Should the General President
of Sheet Metal Workers' International Association
or the Chairman of the Labor Committee of Sheet
Metal and Air Conditioning Contractors' National
Association, Inc , fail or decline to appoint a panel
member or should notice of failure of the panel rep-
resentatives to resolve the dispute be given, the par-
ties shall promptly be notified so that either party
may submit the dispute to the National Joint Ad-
justment Board
The dispute shall be submitted to the National
Joint Adjustment Board pursuant to the rules as es-
tablished and modified from time to time by the Na-
tional Joint Adjustment Board The unanimous de-
cision of said Board shall be final and binding upon
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
By letter dated 29 February 1984, signed by the Em-
ployer's president, Edmond G Lanfranco, both the As-
sociation and the Respondent were advised as follows
Pursuant to Article XIII, Section 1, the undersigned
hereby notifies you that we will continue to partici-
pate in the Sheet Metal and Air Conditioning Con-
tractors Association of Central California but we
are revoking our assignment of bargaining rights ef-
fective immediately Hereafter, the undersigned will
bargain independently
Thereafter, on 22 March, the Respondent acknowl-
edged receipt of the Employer's letter revoking its as-
signment of bargaining rights to the Association, and re-
SHEET METAL WORKERS LOCAL 283 (CONDITIONED AIR) 663
quested that the Agreement be opened for negotiations
However, bargaining did not commence until July In
the interim, the Employer had commenced negotiations
concerning a separate unit of employees with another
labor organization, Plumbers Local 246, and on 12 June,
the Employer advised the Respondent that signing any
future agreement with it would be contingent upon nego-
tiating a new agreement with the Plumbers Union
The parties commenced negotiations on 5 July On
Friday, 6 July, the Plumbers Union, which was engaged
in separate negotiations with the Employer, commenced
a strike and established a picket line at the Employer's
premises Commencing the following Monday, 9 July, all
of the Employer's sheet metal employees, including the
superintendent, ceased working
Further contract proposals were exchanged by the
Employer and the Respondent at the next bargaining ses-
sion on 16 July, but no agreement was reached At this
session the Employer advised that due to its inability to
obtain employees through the Respondent's hiring hall, it
intended to immediately begin hiring replacements
Thereafter the Employer began interviewing and hiring
employees, and, by letter dated 30 July, Lanfranco ad-
vised Respondent as follows
Conditioned Air and Refrigeration Company, Inc
has recently received evidence which demonstrates
that Sheet Metal Workers International Association
Local Union No 283 no longer represents a majori-
ty of Conditioned Air's employees in its sheet metal
workers bargaining unit Accordingly, Conditioned
Air can no longer lawfully continue to negotiate
with your local union
The "evidence" of Respondent's loss of majority status
referred to in the aforementioned letter consisted of a pe-
tition signed and dated by each of the newly hired em-
ployees advising that they did not wish to be represented
by Respondent, infra
There were no further negotiations between the par-
ties On 1 October the Respondent advised the NJAB
that it considered negotiations with the Employer to be
"deadlocked" within the meaning of article X, section 8
of the Agreement which expired on 30 June, and in-
voked the interest arbitration provisions of that article
Thereafter Respondent submitted a detailed report to the
NJAB setting forth the parties' respective bargaining po-
sitions A hearing was held in Scottsdale, Arizona, on 6
November The Employer elected not to appear On 8
November, the NJAB issued its written decision requir-
ing the Employer to execute a 3-year collective-bargain-
ing agreement extending from 1 July 1984 to 30 June
1987, identical in all respects to the then current agree-
ment between Respondent and the Association, with the
exception of article X, section 8, the interest arbitration
provision, which the NJAB deleted from the contract
In February 1985, the Employer filed a petition in the
United States District Court for the Eastern District of
California (Case No CV-84-568-REC) to vacate the arbi-
tration award The Respondent filed a counterpention to
confirm the award This litigation is currently pending
C The Petition, The Employer's Withdrawal
of Re-cognition ,
The petition, addressed "To Whom It May Concern"
is a handwritten document, on yellow legal-pad paper,
bearing the signatures of 10 employees and the dates, on
which they signed The petition states that the under-
signed employees of the Employer "Do not wish to be
represented by the Sheet Metal Union, Local #283 in
anyway [sic], shape, or form"
James Salazar, who was hired by the Employer on 16
July, testified that he personally prepared the petition,
circulated it among the sheet metal employees, observed
each employee sign and date it, and left it on Lanfranco's
desk on 30 July, at the end of the workday He spoke to
no one prior to prepanng the document, had no assist-
ance in drafting it or in obtaining the employees' signa-
tures, and advised each employee that they could sign it
if they wanted to Further, Salazar testified that he
never, at any time, had any conversation with Lanfranco
regarding the petition .
Lanfranco, who has been president of the Employer
since late 1983, testified that he found the petition on his
desk in the early afternoon of 30 July He had no prior
knowledge that it was being circulated, and did not
know who placed it on his desk That afternoon, upon
discussing the matter with his attorney, he sent Respond-
ent the aforementioned letter withdrawing recognition
Employee Andy Reitsma was the last employee to
sign the petition Reitsma testified that he applied for the
job with the Employer on 30 July and filled out some
papers on that date However, so he testified, he was not
asked by Salazar to sign the petition until "maybe a
week or two" after he began working, at which time Sa-
lazar told him to sign it and backdate it to 30 July This
request "bothered" Reitsma, but he complied because he
"wanted to keep his job" When asked what was Sala-
zar's position at that time, Reitsma testified, "I guess su-
pervisor, he ran everything" When asked whether he
felt that Salazar had "any control at all over his employ-
ment," Reitsma said that he did
One of Reitsma's daily timecards furnished to Re-
spondent by the Employer pursuant to subpoena, indi-
cates that Reitsma worked a total of 8 hours on "7-31-
84 " However, it appears that this card was originally
dated "8-7-84," and that the latter date had been erased
and the date "7-31-84" superimposed Reitsma does not
recall erasing the card Another daily timecard bears the
date "Aug 1, 1984"
Russell Smith, comptroller for American Air Compa-
ny, Inc , Reitsma's prior employer, provided timecards
showing that Reitsma worked 8 hours for that company
on 30 July, and worked each day thereafter until the
close of business on 3 August, when he was terminated
Employee Armon Neill testified that he was inter-
viewed for a job by Lanfranco on 25 July and was told
that he was hired However, Neill continued working for
his then current employer, Ray McDonald, Incorporat-
ed, through 27 July, and did not begin working for the
Employer until 30 July Neill testified that on the
evening of 25 July, he received a phone call from Lan-
franco, who asked Neill to come in the following day
664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and sign a paper stating that he did not want to be repre-
sented by the Sheet Metal Union, and that this would
help Lanfranco out as far as union problems he was
having Neill did go to the Employer's premises the fol-
lowing day, where Lanfranco told Neill to sign the peti-
tion and to date it so that it would appear he had begun
work on 26 July rather than the following week when
Neill had been scheduled to begin Neil did so Neill fur-
ther testified that another employee, James Collard, who
also worked at Ray McDonald, Incorporated, was
present in Lanfranco's office and that both employees
signed the petition at the same time Collard's name ap-
pears opposite Number 8 on the petition Neill's name
appears immediately below it, opposite Number 9 Both
employees signed it on "7-26-84"
Pursuant to subpoena, the Employer furnished Re-
spondent with Neill's payroll records Neill testified that
a daily timecard dated "7/26-7/27" and showing 16
hours of work on those days was not in his handwriting
He further testified that although he did not perform any
work for the Employer on those days, during which he
was working for Ray McDonald, Incorporated, he was
nevertheless paid by the Employer for those days, and
that James Collard and another employee, Mark
Schmidt, had also been paid for days in which they had
not performed labor
Neill testified that when he began working for the
Employer, he reported to two individuals, John Short,
vice president, and Salazar Salazar, according to Neill,
reported to Short and was foreman over the shop and
field He would tell the employees where to work and
what materials would be needed
Employee James Collard was interviewed and hired
by Lanfranco He recalls that both he and Neill met with
Lanfranco, and that Lanfranco said that he was dropping
the Union and was going nonunion Although Collard
was unable to recollect who presented him with the peti-
tion, he is certain that he and Neill signed it at the same
time Collard's recollection of the events in question was
admittedly confused, and he stated that he was honestly
trying to recall the events but that it was difficult be-
cause the details about the papers he signed upon becom-
ing employed, and who presented the papers to him, did
not mean anything to him at the time, all he wanted to
do was go to work
Employee Mark Schmidt testified that he first heard
about the job from Lanfranco's father, who lived across
the street from Schmidt Lanfranco's father told him that
the company was thinking about going nonunion There-
after, Ed Lanfranco, owner of the Employer and a friend
of Schmidt's, came to his home and talked about putting
together a nonunion shop with close to the same wages
as union shops There was further discussion and a con-
tract was eventually prepared reflecting the benefits and
wages Schmidt would be receiving as an employee 3
Schmidt testified that Salazar asked him to sign the peti-
tion on 25 July, "a couple days" after Schmidt started
work The petition reflects that Schmidt did sign it on
that date
3 Schmidt, however, had apparently misplaced his copy of the contract
and was unable to produce It at the hearing
Ken Mitchell, owner of Mitchell Aire, for whom
Schmidt worked prior to his employment with the Em-
ployer, testified that according to company timecards,
Schmidt worked full days for Mitchell Aire on 24, 25,
26, and 27 July
Kathryn A Sure, attorney for Respondent, testified
that she had a phone conversation with Schmidt on 28
January 1985, and had made contemporaneous notes of
the conversation, which she produced at the hearing
During the conversation, Schmidt told her that he was
friendly with Lanfranco, that he and Lanfranco had a
contract of employment, that Lanfranco had given him a
petition which he signed, and that he had never talked to
Salazar about the petition
John Short was formerly vice president of the Em-
ployer Short testified that when Salazar was hired in
July, he was used as a leadperson and was never really
given a title However, due to the critical labor prob-
lems, Short suddenly found himself without qualified
technicians Thus, he selected Salazar, who had previ-
ously worked for the Employer and was one of the few
employees with sheet metal experience, to provide the
leadership to the rest of the crew in order to get the job
completed Short testified that during this penod, appar-
ently throughout July, Short would organize the crews,
make sure that all the materials were ordered, and sched-
ule the majority of the work He would go over a layout
with Salazar and Salazar, according to Short, would then
"get with certain people and get them lined out on
things to do and they followed his direction" Short fur-
ther testified, "I think that the confidence I showed Bob
showed the men, indirectly, that Bob had some author-
ity" Short added, however, that Salazar had no authority
to hire or fire, that the men reported directly to Short,
and that prior to August they had not been specifically
advised as to Salazar's authority However, about the
first part of August, Short held a job meeting with the
crew early one morning and said he would be working
closely with Salazar, that the employees should listen to
him, and that Salazar would be directing their work
Short testified that he and Lanfranco may have talked
about the petition on four or five occasions On one oc-
casion, Lanfranco told Short about a petition being cir-
culated among the employees, but Short was uncertain
whether this occurred before or after 30 July However,
Short does recall that during a later conversation Lan-
franco told him that all the employees had signed the pe-
tition and that "we are moving on to business"
Lanfranco, on rebuttal, denied having any conversa-
tion with Neill or Collard about the petition, and denied
having any conversation with Short about the petition
until after 30 July He did not deny, however, Schmidt's
testimony regarding the employment contract and the
meeting at Schmidt's home
D Analysis and Conclusions Concerning the Petition
It was stipulated that until at least 30 June 1984, Re-
spondent was the exclusive 9(a) bargaining representative
of the Employer's employees in the following unit
SHEET METAL WORKERS LOCAL 283 (CONDITIONED AIR) 665
All employees of Conditioned Air engaged in but
not limited to the (a) manufacture, fabncation, as-
sembling, handling, erection, installation, disman-
tling, conditioning, adjustment, alteration, repairing
and servicing of all ferrous or nonferrous metal
work and all other materials used in lieu thereof and
of all air-veyor systems regardless of material used
including the setting of all equipment and all rein-
forcements in connection therewith, (b) all lagging
over insulation and all duct lining, (c) testing and
balancing of all air-handling equipment and duct
work, (d) the preparation of all shop and field
sketches used in fabrication and erection, including
those taken from original architectural and engi-
neering drawings or sketches, and (e) all other work
including in the jurisdictional claim of Sheet Metal
Workers' International Association, excluding all
other employees, guards and supervisors as defined
in the Act
The Employer takes the position that Respondent is
precluded by Section 10(b) of the Act from attempting
to litigate the issue of the Employer's good-faith doubt
of the Respondent's continued majority status, and main-
tains that this issue may only be raised pursuant to a
timely filed charge alleging an 8(a)(5) refusal-to-bargain
violation 4
The Employer's contention is without merit All the
material events surrounding the Employer's withdrawal
of recognition on 30 July occurred within the 6 months
prior to the filing of the relevant charges herein It is
clear that Section 10(b) of the Act does not preclude Re-
spondent's defense that the Employer's withdrawal of
recogmtion was unlawful as the charge was filed at a
time when the Employer's withdrawal of recognition
could have been attacked directly as an unfair labor
practice North Bros Ford, 220 NLRB 1021 (1975), Valu
Warehouse Foods, 270 NLRB 316, 321 (1984) Thus, Re-
spondent's charge, subsequent to its withdrawal, could
have been reinstated within the 10(b) period Winer
Motors, 265 NLRB 1457 (1982) Nor may a dismissal of a
charge preclude a defense based on the same contentions
Hotel & Restaurant Employees Local 274 (Hospitality Ca-
tering), 269 NLRB 482 (1984)
The testimony of Salazar and Lanfranco is unambig-
uous and concise, and was delivered with initially favor-
able demeanor, my early favorable impressions of each
were eventually eroded, however, and, in the end, entire-
ly overcome by the wealth of evidence contrary to their
testimonies Salazar stated that he began circulating the
petition on 25 July and had obtained the signatures of
each of the 10 replacement employees by 30 July, 5 on
which date he placed the petition on Lanfranco's desk
Lanfranco asserted that he had no knowledge of the peti-
tion until he found it on his desk on 30 July, on which
4 Respondent did file a charge of this nature on 6 August, and thereaf-
ter, on 2 October, withdrew the said charge following the Issuance of a
dismissal letter
5 The petition reflects that six employees had signed the petition on 25
July, three employees signed on 26 July, and one, Andy Reitsma, signed
on 30 July
date he wrote a letter to the Respondent withdrawing
recognition
Counsel for the General Counsel -appears to concede
the implicit defects in the credibility (as, in my opinion,
he must), of Salazar or Lanfranco, and his brief contains
the following analysis, which is of particular importance
and is, therefore, set forth in its entirety
The Employer and Salazar both assert that all ten
signatories of the petition were employed and work-
ing on July 30 The tenth and last signatory,
Reitsma, testified that he signed the document after
he began working in "early August" and was told
to backdate his signature to July 30
Based on a review of the record, it is now the
position of General Counsel that while Reitsma ap-
plied for employment on July 30, and thereafter
completed certain employment documents on that
date, his first day of actual work was not until the
following Monday, August 6 While time cards for
Reitsma were produced for the dates of July 31 and
August 1, these documents were of questionable ve-
racity Moreover, payroll records from his previous
employer reflect that Reitsma worked a normal
work week from July 30 to August 3 for that em-
ployer Other than the questionable time cards, the
Employer did not produce any other evidence that
Reitsma was actually working during the week of
July 30 -
In these circumstances, the General Counsel
cannot rely upon the testimony of Lanfranco or Sa-
lazar concerning Reitsma's status as an employee on
July 30 Moreover, and perhaps more importantly,
these same circumstances suggest it was highly un-
likely that Reitsma signed the petition on July 30
Thus, assuming that Salazar placed the Petition on
Lanfranco's desk during the afternoon of July 30, it
seems improbable that Reitsma could have made ap-
plication for work, been hired, and thereafter met
Salazar to sign the petition prior to mid-afternoon
on July 30 since the evidence reflects that Reitsma
worked eight hours that day for another employer
Based on the foregoing, it is the position of the
General Counsel that there were, in all likelihood,
only nine signatures on the petition when it was re-
ceived by the Employer
The General Counsel, in an evident attempt to put the
best face possible on the hand he was dealt, maintains,
however, that although the testimonies of Salazar and
Lanfranco were "unreliable," and although the Employ-
er furnished timecards of "questionable veracity" to Re-
spondent pursuant to a subpoena, nevertheless the re-
mainder of the testimonies of Salazar and Lanfranco
should be credited Thus, according to the General
Counsel, the testimonies of employees Neill and Collard,
and apparently Sure, are unworthy of belief
The best that may be extracted from James Collard's
testimony is that he was very confused and entirely un-
certain of the events in question, and that they made no
impression on him at the time He merely wanted to
begin working and was unconcerned with the circum-
666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
stances surrounding the signing of any papers upon ob
taming employment or the identity of the individuals
who may have presented the papers to him However at
several points during his lengthy testimony Collard reit
crated that he and Neill both signed and dated the pen
none at the same time and that the date was accurate
On cross examination Collard agreed that he could not
recall any individual other than Salazar giving him any
documents
I credit the testimony of Armon Neill who appeared
to be a forthright witness with no apparent bias against
the Employer Thus I am convinced that Neill did in
fact, receive a phone call from Lanfranco on 25 July
that Lanfranco asked him to come in the following day
to sign a paper regarding the Union and that on 26 July
Lanfranco presented Neill with the petition in his office,
and asked him to sign it and date it so that it would
appear Neill was employed on that date in order to help
Lanfranco out with the union problem Moreover the
credible testimony of Neill who recalled that Collard
was present during this meeting with Lanfranco coupled
with that portion of Collard s testimony of which he was
certain and which I credit namely that Collard signed
and dated the petition at the same time as Neill, makes it
abundantly clear, and I find that Lanfranco asked both
Neill and Collard to sign the petition on 26 July
I was not favorably impressed with the demeanor or
testimony of Mark Schmidt a friend of Lanfranco who
surprised Respondent s counsel at the hearing by testify
mg that Salazar handed him the petition and who there
after denied previously having told Respondent s attor
ney that, in fact, Lanfranco, not Salazar had made this
request Moreover the remainder of Schmidt s testimony
appeared evasive, particularly his inability to provide any
salient details surrounding his allegedly being given the
petition by Salazar Rather, I fully credit the precise and
detailed testimony of Respondent s attorney, Kathryn
Sure, who spoke to Schmidt on the telephone just 3 days
prior to Schmidt s appearance at the hearing herein and
find that Schmidt advised her, in no uncertain terms that
Lanfranco not Salazar gave him the petition and that
he had never spoken to Salazar about it However I
credit that portion of Schmidt s testimony which is unre
butted, namely, that Lanfranco entered into a pnvate
contract of employment with him prior to the time of
the alleged circulation of the petition at which time
Lanfranco advised Schmidt that he was putting together
a nonunion shop 7
Upon withdrawal from a multiemployer unit the
union continues to enjoy the presumption of majority
status in a single employer unit Palace Club 229 NLRB
1128, 1135 (1977) The employer however may rebut
this presumption by clear, cogent, and convincing evi
dence showing either actual loss of majority support or
objective factors sufficient to support a reasonable good
faith doubt of the union s majority NLRB v Tahoe
° Collard referred to It as the deal about Local 283 or whatever
the hell it is
7 Obviously this would have been sufficient to invalidate Schmidt s
signature on the petition even if Salazar had presented It to him as
Schmidt s employment contract was admittedly premised on the existence
of a nonunion shop
Nugget Inc 584 F 2d 293 297 (9th Cir 1978) Bay Area
Los Angeles Express 275 NLRB 1063 1085 (1985)
Randle Eastern Ambulance Service 230 NLRB 542 551-
552 (1977) And clearly such loss of majority support
must not be attributable to the employer s own unfair
labor practices Clear Pine Mouldings v NLRB 632 F 2d
721 730 (9th Cir 1980) Bay Area Los Angeles Express,
supra Rockland Lake Manor 263 NLRB 1062, 1067-
1068 (1982)
The record shows that there were approximately 10
unit employees represented by Respondent who either
ceased work on 9 July or failed to return to work from
layoff status subsequent to 9 July These employees to
gether with the nine replacement employees who alleg
edly were working on 30 July, 8 comprise the unit for de
termmmg majority status NLRB v Tahoe Nugget supra
While the Respondent maintains that the appropriate unit
as of 30 July the date the Employer withdrew recogm
ton, consists of some 19 or more employees the General
Counsel maintains in reliance of certain record evidence
that all but 2 or 3 employees of the original employee
complement found immediate and substantially equiva
lent employment elsewhere and should therefore no
longer be included in the unit Respondent on the other
hand disputes this contention and maintains that the
record evidence fails to establish that any of the original
employees found substantially equivalent employment
elsewhere, or have indicated a desire to abandon their
employment
I find it unnecessary to determine this issue I do so
because the petition utilized by the Employer to substan
nate the Respondent s alleged loss of majority status is
fatally flawed The only clear cogent, and convincing
evidence 9 presented on the issue of the instigation and
circulation of the petition namely the testimony of
Neill, demonstrates that the testimony of Salazar and
Lanfranco is not only unreliable, as characterized by
the General Counsel but has been deliberately fabricated
and is utterly unworthy of belief in any respect It is
clear that Lanfranco personally solicited the signatures
of two newly hired employees, Neill and Collard 1°
Moreover such fabrication under oath leads reasonably
to the inference which I reach that none of the signs
tures may be relied upon as credible evidence of employ
ee intent Thus I discredit in its entirety the testimony of
Salazar and Lanfranco on this issue even though por
lions of their testimony may be uncontroverted Plaster
ers Local 394 207 NLRB 147 (1973) SMI of Worcester
Inc 271 NLRB 1508 1522 (1984)
As a consequence of the foregoing it is unnecessary to
determine whether Salazar was a supervisor or agent of
Respondent at the time he allegedly solicited the remain
mg signatures Indeed it is interesting to note that the
only employee Andy Reitsma who did credibly testi
8 The General Counsel agrees that since Rensma did not begin work
mg for the Employer until 6 August he was not properly in the unit on
30 July
9 NLRB v Tahoe Nugget supra
'° Such conduct is violative of Sec 8(a)(1) of the Act Columbia Budd
ing Materials 239 NLRB 1342 1346-1347 (1979) Rockland Lake Manor
supra at 1069 (1982)
SHEET METAL WORKERS LOCAL 283 (CONDITIONED AIR) 667
fy" that Salazar handed him the petition, said that "Sa-
lazar ran everything there," and that he was bothered
about being requested to backdate the document pursu-
ant to Salazar's request but he felt that it would jeopard-
ize his job if he refused It seems reasonable to conclude
that other employees would, under similar circumstances,
have had a reasonable basis to believe that their employ-
ment was dependent upon signing the petition, particu-
larly, insofar as former Vice President Short's credible
testimony demonstrates, because none of the new em-
ployees, at the time they signed the petition, had been
advised specifically of the extent or limits of Salazar's au-
thority over them
On the basis of the foregoing, I find that at the time it
withdrew recognition from the Respondent, the Employ-
er did not have a good-faith doubt of Respondent's con-
tinued majority status Therefore, such doubt cannot be
used as a predicate for a finding that Respondent's insist-
ence that the Employer continue the bargaining relation-
ship violated Sections 8(b)(1)(A) and 8(b)(2) of the Act
These allegations are dismissed
E Analysis and Conclusions Concerning the Interest
Arbitration Issue
The issue presented, which the parties characterize as
one of first impression, is whether an interest arbitration
provision embodied in a multiemployer association's con-
tract with a union, requiring binding arbitration of unset-
tled contract issues, may be enforced against an employ-
er which timely withdraws" from the association and
elect to bargain individually
The complaint alleges and the General Counsel main-
tains that under such circumstances the interest arbitra-
tion article conflicts with the proscription of Section
8(b)(1)(B) of the Act which makes it unlawful for "a
labor organization to restrain or coerce an em-
ployer in the selection of his representatives for the pur-
poses of collective bargaining or the adjustment of griev-
ances," and that an attempt to enforce the article is
therefore violative of the Act
The General Counsel maintains, in his brief, that
The interest arbitration provision of the [Associa-
tion-Union] contract does not apply to bargaining
disputes between the Union and an employer who
lawfully withdraws from the Association group
Those provisions apply to disputes in the multi-em-
ployer unit They do not apply to disputes in a
single employer unit Accordingly, once the Em-
" Reitsma's testimony was characterized by his evident anger Inquiry
Into its cause led me to conclude that he feared being found out in his
acquiescence to Salazar's request that he backdate his signature on the
petition, and that the prospect of being judged a liar caused him extreme
emotional discord While I was initially inclined to discredit his testimo-
ny, reflection causes me to reach the exact opposite conclusion As a
result, I credit Reitsma's testimony over that of Salazar I am reinforced
in this conclusion by its consonance with the testimony of other employ-
ees
12 While the Employer notified the Respondent on 27 February that It
Intended to bargain Independently but also "will continue to participate
in the [Association]," the parties appear to premise their respective argu-
ments on the assumption that, for purposes of this case, the Employer ef-
fectively "withdrew" from the Association
ployer in this case timely withdrew from
SMACNA, the interest arbitration clause was not
applicable to it without the Employer's agreement
The Employer was therefore free to negotiate its
own contract and could not be forced to accept a
contract imposed by an outside body
The General Counsel's citation of authonty in support
of this position begins and ends with Sheet Metal Workers
Local 59 (Employer Assn ), 227 NLRB 520 (1976), which
involves the very interest arbitration provisions in issue
herein There, however, the similarities end, due to the
fact that in Sheet Metal Workers Local 59 the issue pre-
sented was whether the union might utilize the machin-
ery of the interest arbitration provision of an expired
contract to require that the successor contract also con-
tain the same interest arbitration provision, and, more-
over, unlike the instant case, this issue was not raised in
the context of a single employer's withdrawal from a
multiemployer unit The Board found that the interest ar-
bitration provision was a nonmandatory subject of bar-
gaining," and that the union had violated Section
8(b)(3) of the Act by insisting upon its retention in the
successor contract to the point of impasse
The Board also stated as follows
One can hardly conceive Of a more fundamental
right embodied in our Act than the right of both
employees and employers to bargain collectively
through representatives of their own choosing
Thus, while it is clear that the parties may agree to
substitute another individual or entity to resolve dis-
putes associated with the collective-bargaining proc-
ess, it is also true that the right to select one's own
bargaining representative is so basic and important
that its relinquishment will not be casually imputed,
nor will an initial waiver of that right in any way
impair a party's right to demand that this nonman-
datory topic not act as a barrier to any future nego-
tiations 9 In the instant case, the Employers Asso-
ciation made clear from the outset that it would not
agree to the present dispute resolution clauses in the
negotiations for a new contract This being so, Re-
spondent was not privileged to insist upon the non-
mandatory subject to the point of impasse
While it may be true, as Member Fanning asserts,
that the Employers Association may have other
forums in which to seek relief, it does not follow
that it is to the courts, and ,not this Board, that the
Employer should address its arguments The con-
tract provisions in this case are concededly nonman-
datory subjects of bargaining, an area of law within
the peculiar competence of the Board Furthermore,
we also agree with the Administrative Law Judge's
finding that Respondent's conduct from the outset
of negotiations was designed to supplant the Em-
ployer Association as bargaining representative with
the National Joint Adjustment Board We therefore
13 However, Chairman Murphy, in a vigorous dissent, would find that
Interest arbitration is the "collective bargaining toolof the future," and
should be a mandatory subject of bargaining
668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
find that the Union's insistence that National Joint
Adjustment Board procedure be retained in the con-
tract was an attempt to force the Employers Associa-
tion to relinquish its right to select its own bargaining
representative and, as such, constituted an unfair
labor practice within the meaning of Section
8(b)(1)(B) of the Act [Emphasis added ]
9 NLRB v Wooster Division of Borg-Warner Corp, 356 U S 342
(1958)
Thus, Sheet Metal Workers Local 59 appears to hold
that an interest arbitration provision in a contract may
not be utilized to circumvent established Board law re-
garding nonmandatory subjects of bargaining, including
the nonmandatory subject of interest arbitration
The instant case specifically does not involve the per-
petuation of the interest arbitration provision in a succes-
sor contract Here, it was only when the parties became
"deadlocked" upon admittedly mandatory subjects of
bargaining and following the Employer's invalid with-
drawal of recognition, that the Respondent invoked the
interest arbitration provision of the expired contract
Moreover, the decision of the NJAB specifically pro-
vides as follows
C Article X, Section 8 shall be eliminated
It is not the intent of the Board to impose any
nonmandatory subject of bargaining on an unwilling
party In the event either the NLRB or any court
of competent jurisdiction finds that any provision of
the agreement imposed is a nonmandatory subject,
that provision will be deleted The parties are di-
rected to enter into negotiations to replace that sec-
tion of the contract to substitute a mandatory re-
placement In the event the parties cannot agree on
a replacement for the disputed section, the Board
retains junsdiction to resolve that Issue
Respondent principally relies upon two more recent
cases, decided on the same day, namely Sheet Metal
Workers Local Union 420 v Huggins Sheet Metal, 752
F 2d 1473 (9th Cir 1985), and Hotel & Restaurant Em-
ployees v Williams, 752 F 2d 1476 (9th Cir 1985) These
cases were brought under Section 301(a) of the Act to
compel interest arbitration The Huggins case is factually
identical to the instant matter There, the court found
that the interest arbitration provision survives the expira-
tion of the multiemployer association contract and be-
comes enforceable against a single employer upon its
timely withdrawal from the association, thereby requir-
ing the single employer to arbitrate the terms and condi-
tions of a successor contract The court's rationale for
this holding is set forth in the companion Williams case,
supra, and is as follows
In Nolde Brothers, Inc v Local No 358, Bakery &
Confectionary Workers Union, 430 U S 243, 94
LRRM 2753 (1977), the Supreme Court held that a
dispute over severance pay under an expired collec-
tive-bargaining agreement was arbitrable even
though both the dispute and the request for arbitra-
tion arose after the contract had been terminated
The Court reasoned that the parties had agreed to
arbitrate all disputes which arose out of the contrac-
tual relationship, and that enforcement of the clause
would promote the strong national policy favonng
arbitration of labor disputes Furthermore, the
Court held that "the presumptions favoring arbitra-
Nifty must be negated expressly or by clear implica-
tion" Nolde, 430 U S at 255
Although the arbitration clause in Nolde was a
rights or grievance arbitration clause, the Court's
rationale applies with equal force to interest arbitra-
tion clauses For us to rule otherwise would severe-
ly limit the usefulness of an interest arbitration
clause because negotiations for a new contract often
become deadlocked after the expiration date of the
contract has passed To hold that all rights under
[the interest arbitration article] terminated at the
contract's expiration date would effectively invali-
date the entire provision and would be inconsistent
with the clear and unambiguous language of that ar-
ticle
The Employers contend that the post-contract
enforcement of the interest arbitration provision
will bind them to successive contracts containing
the same provision This contention has no merit
[The interest arbitration article] provides for arbitra-
tion on only two issues wages and fringe benefits
Even if [the interest arbitration article] had provid-
ed otherwise, the provision would be invalid be-
cause arbitration can only be required for mandato-
ry bargaining subjects, and an interest arbitration
clause is a nonmandatory subject In addition, a
Union's insistence on the inclusion of a mandatory
arbitration clause in a successor contract without
the consent of the employer would constitute a re-
fusal to bargain in good faith Sheet Metal Workers'
International Association, Local 14 v Aldrich Air
Conditioning, Inc , 717 F 2d 456, 458-59, 114 LRRM
2657 (8th Cir 1983) An arbitration make [the inter-
est arbitration article] self-perpetuating by including
an interest arbitration clause in the new contract
The General Counsel and the Employer disagree with
the Ninth Circuit's holding in the aforementioned cases,
and argue that the issue advanced herein, namely, wheth-
er an employer may be bound to an agreement reached
by a bargaining representative not of its own choosing,
was not presented to or addressed by the Court in Hug-
gins or Williams, and that, moreover, Board law, namely,
Sheet Metal Workers Local 59, conflicts with this holding
The briefs of Respondent, and the parties-in-interest
herein, Sheet Metal Workers' International Association,
AFL-CIO, and SMACNA, the two organizations that
establish and select the representatives of NJAB, contain
extensive discussions of the background, history, and
purpose-of-interest arbitration provisions The briefs em-
phasize that such clauses, providing a mechanism for the
voluntary settlement of disputes in place of economic
warfare, are common to thousands of collective-bargain-
ing agreements and that their validity has been acknowl-
SHEET METAL WORKERS LOCAL 283 (CONDITIONED AIR) 669
edged by the Board" and enforced by various circuit
courts generally 15 Further, circuit courts have enforced
awards by the NJAB premised on the identical interest
arbitration provision herein 16
The very purpose of an interest arbitration provision is
to provide, in a current contract, an agreed-upon method
for determining the terms of the next contract should
there be a deadlock in negotiations Therefore, it is es-
sential that the parties agree prospectively as to the iden-
tity of the representative who may be called upon to re-
solve the future dispute In the instant case, as a member
of the Association, the Employer selected the NJAB to
serve this purpose That is, it elected to designate the
NJAB to arbitrate the provisions of the next contract
upon deadlock or impasse The General Counsel's mere
assertions, without analysis or citation of any persuasive
authority, to the effect that the interest abitration provi-
sion in a multiemployer contract may not be applied to
disputes in a single employer unit, conflicts with the
clear holding in Huggins, supra, and Sheet Metal Workers
Welfare Fund v Tampa Sheet Metal, supra, where the
Ninth and Eleventh Circuits enforced the very provi-
sions in question herein against single employers who
withdrew from multemployer units
On the basis of the foregoing I conclude that the Em-
ployer, while a member of the Association, voluntarily
selected the NJAB as an interest arbitration panel for its
next contract, regardless of whether the Employer re-
mained a member of the Association, and that neither the
General Counsel nor the Employer has presented a con-
vincing argument, based on Board precedent, warranting
a finding that the Respondent has violated the Act by re-
quiring the Employer, through arbitration by the NJAB
and enforcement by the District Court, to live up to its
part of the bargain 17 These allegations are dismissed
F Factual Background Concerning Respondent's
Charges Against and Fine of Gary Lindblom
Gary Lindblom, a member of Respondent, began
working for the Employer in 1972, and worked until
June at which time he refused to cross the Plumbers'
picket line He was reemployed in December as shop
foreman, and continued working for the Employer in
that position until May 1985 when he was elevated to
the position of general sheet metal superintendent
As shop foreman, Lindblom would deal with walk-in
customers, estimate the cost of work, process the neces-
sary paperwork through the front office, and assign the
14 Columbus Printing Pressmen Local 252, 219 NLRB 268 (1975)
15 Winston-Salem Printing Pressmen v Piedmont Publishing Co, 393
F 2d 221 (4th Cif 1968), A Seltzer & Co v Livingston, 361 F 2d 218 (2d
Cir 1966), enfg 253 F Supp 509 (1966), Chattanooga Mailers Local 92 v
Chattanooga News-Free Press, 524 F 2d 1305 (6th Cu. 1975), Milwaukee &
Graphic Communications Local 23 v Newspapers Inc , 586 F 2d 19 (7th
Cif 1978), Builders Assn of Kansas City v Greater Kansas City Laborers
District Council, 326 F 2d 867 (8th Cir 1964), Hotel & Restaurant Employ-
ees v Williams, supra
26 Sheet Metal Workers Local 420 v Huggins Sheet Metal, supra, Sheet
Metal Workers Welfare Fund v Tampa Sheet Metal, 786 F 2d 1461 (11th
Or 1986)
" It appears unnecessary, in light of the result I reach to discuss Re-
spondent's argument under Clyde Taylor Co, 127 NLRB 103 (1960), and
its progeny, that the filing of a civil suit in good faith cannot be found to
be an unfair labor practice
work to particular employees He was responsible for co-
ordinating the work of the approximately 7-10 shop em-
ployees, and for insuring that the materials were avail-
able, and that the employees properly performed the jobs
he had given them He would inspect the final product,
and deal with the customers when they came in to pick
up the work It was also Lmdblom's responsibility to
insure that the employees' timecards were correct and he
would initial them to show they had been examined
Lmdblom spent 25 percent of his time doing rank-and-
file sheet metal production work not related to working
with or instructing other shop employees If Ken Olsen,
the superintendent, was not present, Lindblom would
interview the applicants for employment, and would then
review the applicants with Olsen He recommended that
individuals be hired or not hired, and his recommenda-
tions were followed Lindblom testified that he also had
an assistant shop foreman However, the duties of this in-
dividual are not specified in the record
In February or March 1985, an employee who had
been hired previously to Lindblom was not performing
up to Lindblom's standards Lindblom advised Olsen that
he simply was not satisfied with the employee's work
and wanted to discharge him Olsen said he, too, was
thinking of dismissing the employee, and instructed
Lindblom to let him go On another occasion an employ-
ee who had been assigned by Lindblom to work with fi-
berglass insulation told Lindblom he was not very happy
about the work he had been given to perform, and
wanted another assignment Lindblom told him that if he
was unwilling or unable to work around fiberglass, then
he was free to leave Thereafter the employee quit
Lindblom testified that Superintendent Olsen was
more involved with what went on in the field, and was
out of the shop most of the time On one occasion
Lindblom told Olsen that an employee deserved more
money, and the employee received a raise Lindblom
also resolved disputes among employees regarding how
the work should be performed As shop foreman he had
his own office, keys to the facility, and access to compa-
ny personnel records
Lmdblom's affidavit states
When asked, I have given Ken Olsen my opinion
regarding hiring and firing some employees, but
'Ken Olsen always makes the actual decisions in that
area Occasionally I participate in the interview
process, but I have never actually hired or fired
anyone
On one occasion, Ken Olsen decided to terminate
an employee Ken is always the one to inform the
employee of their termination, but on this occasion,
he was tied up on a job He directed me to tell the
employee of the decision if he wasn't back by 4 30
that afternoon When Ken didn't get back in time, I
followed his instructions and told the employee he
was terminated
When I think one of the guys I work with de-
serves more pay, I tell Ken Olsen I do this even
though it is not one of my duties, but because I
work everyday with the men, and when they do a
good job, I think they should be paid for it Some-
670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
times Olsen agrees with my observations and he
will ask Ed Lanfranco the owner, to give them pay
raises I believe a number of those employees re
ceived raises because of Olsen s recommendation
although some have not Olsen is interested in my
observations about employee performance and work
quality to supplement what he knows and observes
about employees since this is Olsen s responsibility
as Superintendent
Prior to returning to work in December Lindblom
spoke to Al Garrison Respondent s business agent and
advised him he was thinking about returning to work as
shop foreman Garrison said, according to Lindblom
there would probably be quite a bit of flak over it that
he would probably be brought up on charges for going
back to work and that Garrison probably would not be
able to do very much to protect him
In March 1985, Lindblom received a call from
Howard Gibson, business manager who said that Lmdb
lom was 2 months behind in his union dues He also
asked how much Lindblom was making Lindblom told
him, and Gibson wanted to know why Lindblom would
work for wages below union scale
By letter dated 10 April 1985, Lindblom was advised
of his suspension from the Respondent for nonpayment
of dues On 17 April 1985, Lindblom notified the Re
spondent of his immediate resignation from the Union
Business Manager Howard Gibson preferred charges
against him on 22 April 1985 for working for the Em
ployer at wages less than the contractual wage scale On
6 June 1985 he was fined $2500 by the Trial Committee
for conduct that occurred prior to his suspension and
resignation, during a time when Respondent was en
gaged in a dispute with the Employer over the negotia
tion of a collective bargaining agreement
G Analysis and Conclusions Concerning the
Respondents Action Against Lindblom
As shop foreman Lindblom essentially ran the shop
He had a separate office, assigned work to employees,
and recommended pay Increases Superintendent Ken
Olsen Lindblom s immediate supervisor, was out of the
shop almost all the time and in the absence of Olsen
Lmdblom would interview employees He effectively
recommended that certain individuals be hired and that
a particular individual whom he interviewed not be
hired On one occasion he advised Olsen that an employ
ee who had been working in the shop prior to Lindb
lom s employment was not performing up to Lindblom s
standards and that he could not have him working there
Olsen who said he had been thinking of getting rid of
the employee agreed, and in Olsen s absence, Lindblom
actually advised the employee of his discharge On the
basis of the foregoing it is found that Lindblom was a
supervisor within the meaning of the Act Electrical
Workers IBEW Local 340 (Hulse Electric), 273 NLRB
428 437-439 (1984) The cases cited by Respondent are
clearly distinguishable 18
Respondent s apparent agreement that assuming ar
guendo Lindblom s supervisory status, it would have
been lawful for Respondent to fine him for performing
more than a minimal amount of bargaining unit work
citing Columbia Typographical Union No 101 242 NLRB
1079 (1979) is without merit Thus there is no evidence
showing that this was the purpose of the fine More im
portant the rationale of the cited case applies to the per
formance of struck work by supervisor members clearly
not the situation herein
Finally the Respondent maintains that it was not
aware of Lindblom s supervisory status at the time It
took the action against him The law is clear however
that the Respondent s beliefs motives or good faith do
not constitute a valid defense Sheet Metal Workers Local
85 (Suburban Sheet Metal), 273 NLRB 523 526 (1984)
Thus, under the Board s reservoir doctrine it has
been clear that all persons found to be supervisors within
the meaning of Section 2(11) of the Act are also employ
er representatives within the intent of Section 8(b)(1)(B)
of the Act Teamsters Local 296 (Northwest Publications)
263 NLRB 778, 779 fn 6 (1982)
However, the Supreme Court has recently examined
and specifically rejected 19 the Board's reservoir doc
trine and concluded that Section 8(b)(1)(B) of the Act
prohibits discipline only of those supervisor members
who actually perform 8(b)(1)(B) duties—that is collec
tive bargaining grievance adjustment, or some other
closely related activity, such as contract interpretation
In this case the evidence is insufficient to allow a find
mg that Lindblom engaged m such 8(b)(1)(B) duties
As a result I am constrained to conclude that the Re
spondent has not violated Section 8(b)(1)(B) by prefer
ring charges against Lindblom and subsequently fining
him for accepting less than the collective bargaining
agreement s specified pay scale for journeymen
These allegations are dismissed
CONCLUSIONS OF LAW
1 Conditioned Air & Refrigeration Company Inc
d/b/a Conditioned Air a/k/a CARCO is and has been
at all times material herein an employer engaged in corn
merce within the meaning of Section 2(2) (6) and (7) of
the Act
2 Respondent Sheet Metal Workers International As
sociation Local Union No 283 is and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act
3 Gary Lindblom has been at all times material herein
a representative of the Employer for the purposes of col
lective bargaining and the adjustment of grievances
Since I have found that Respondent has not engaged
in unfair labor practices within the meaning of the Act I
shall recommend to the Board that the complaint be dis
missed in its entirety
18 Emco Steel 227 NLRB 989 (1977) Walgreen Co 227 NLRB 1853
(1977) Gerber Co 270 NLRB 1235 (1984) Fishback/Lord Electric Co
270 NLRB 856 866 (1984)
19 NLRB v Electrical Workers IBEW Local 340 481 U S 573 (1989)
SHEET METAL WORKERS LOCAL 283 (CONDITIONED AIR) 671
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2°
ORDER
It is ordered that the complaint is dismissed in its en-
tirety
20 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended Board and all objections to them shall be deemed waived for all pur
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the poses