Sheet Metal Workers Local 162 (Dwight Lang's Enterprises)

National Labor Relations Board - Board Decisions

Aug 29, 1994

314 N.L.R.B. 923 (N.L.R.B. 1994)

923
314 NLRB No. 146
SHEET METAL WORKERS LOCAL 162 (DWIGHT LANG’S ENTERPRISES)
1 John Deklewa & Sons, 282 NLRB 1375 (1987), enfd. sub nom.
Iron Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988), cert.
denied 488 U.S. 889 (1988).
2 Following the filing of the briefs, the General Counsel filed a
motion to withdraw the 8(b)(1)(A) allegation of the complaint. The
General Counsel stated that his motion was made ‘‘in the exercise
of the General Counsel’s prosecutorial discretion.’’ Because the Gen-
eral Counsel moved to withdraw the 8(b)(1)(A) allegation after evi-
dence had been introduced in support of the allegation, the General
Counsel no longer had unreviewable discretion to withdraw. Sheet
Metal Workers Local 28 (American Elgen), 306 NLRB 981 (1992).
After evidence has been introduced, the judge, or in this case the
Board, has discretion to either grant or deny a motion to withdraw
a complaint allegation. Id. at 982; General Maintenance Engineers,
142 NLRB 295 (1963). Because the allegation has been fully liti-
gated, we exercise our discretion and deny the General Counsel’s
motion. Contrary to our dissenting colleagues, however, we find that
the 8(b)(1)(A) allegation lacks merit. Our dismissal of the 8(b)(1)(B)
allegation compels dismissal of the 8(b)(1)(A) allegation as well.
The 8(b)(1)(A) allegation turns on the 8(b)(1)(B) allegation that the
Respondent unlawfully invoked the interest arbitration provisions of
the predecessor agreement. We find, as discussed below, that the Re-
spondent did not unlawfully invoke interest arbitration. Accordingly,
the Respondent’s attempt to enforce the union-security provisions of
the collective-bargaining agreement that resulted from that interest
arbitration did not violate Sec. 8(b)(1)(A).
Sheet Metal Workers’ International Association,
Local Union No. 162 and Dwight Lang’s Enter-
prises, Inc. Case 32–CB–2847
August 29, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS,
DEVANEY, BROWNING, AND COHEN
Upon charges filed on December 4, 1987, by
Dwight Lang’s Enterprises, Inc., the General Counsel
of the National Labor Relations Board issued a com-
plaint and notice of hearing on December 16, 1987.
The complaint alleges that the Respondent, Sheet
Metal Workers’ International Association, Local Union
No. 162, violated Section 8(b)(1)(B) of the National
Labor Relations Act by invoking the interest arbitra-
tion clause of the expired collective-bargaining agree-
ment between the Respondent and the Northern San
Joaquin Valley Chapter of the Sheet Metal and Air
Conditioning Contractors National Association
(SMACNA) after the Employer had timely withdrawn
from membership in, and revoked its assignment of
bargaining rights to, that multiemployer association.
The complaint further alleges that the Respondent vio-
lated Section 8(b)(1)(A) of the Act. In his brief to the
Board, the General Counsel contended that the Re-
spondent violated Section 8(b)(1)(A) of the Act by at-
tempting to enforce a union-security clause contained
in the collective-bargaining agreement which was im-
posed by the interest arbitration award at a time when
the Respondent was not the Section 9(a) representative
of these employees and when the agreement it sought
to enforce was not a voluntary Section 8(f) agreement
privileged under Deklewa.1
On August 1, 1988, the General Counsel, the Re-
spondent, and the Employer filed a stipulation of facts.
The parties agreed that the charge, the complaint, the
Respondent’s answer, and the stipulation of facts, in-
cluding attachments, constituted the entire record in
this case and that no oral testimony was necessary or
desired. The parties further stipulated that they waived
a hearing and findings of fact, conclusions of law, and
the issuance of a decision by an administrative law
judge. The parties agreed that the Board should issue
its decision containing findings of fact and conclusions
of law.
On September 28, 1988, the Board issued an order
approving the stipulation and transferring the pro-
ceedings to the Board. Thereafter, the parties filed
briefs.2
On the entire record and the briefs, the Board makes
the following
FINDINGS OF FACT
I. JURISDICTION
The Employer is a California corporation with an of-
fice and principal place of business in Modesto, Cali-
fornia, where it is primarily engaged in sheet metal, air
conditioning, heating, plumbing, and pipefitting con-
struction work. During the calendar year 1987, the Em-
ployer received in excess of $50,000 in supplies from
suppliers located outside of California, which were
shipped directly to the Employer’s warehouse in Mo-
desto or to jobsites in California. We find that Dwight
Lang’s Enterprises, Inc. is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act. The Respondent admits, and we find,
that it is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Stipulated Facts
The Respondent entered into a collective-bargaining
agreement with the Northern San Joaquin Valley
Chapter of SMACNA (the Association) covering the
period July 1, 1985, through June 30, 1987. The Asso-
ciation is composed of employers who are engaged in
the purchase, distribution, transmission, installation,
servicing, and sale of heating and air conditioning
products. The agreement provided for the terms and
conditions of employment for employees of employer-
members of the Association as well as for employees
of individual employers who executed the agreement
as ‘‘individual employers.’’ At the time the Associa-
tion and the Respondent entered into this agreement,
924 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The complaint alleges, and the answer admits, that, by virtue of
its membership in the Association, the Employer was a ‘‘party’’ to
the collective-bargaining agreement.
4 The NJAB is composed of employers who are members of
SMACNA and representatives of the Sheet Metal Workers’ Inter-
national Association.
Art. X, sec. 8, of the contract provides:
SECTION 8. In addition to the settlement of grievances aris-
ing out of interpretation or enforcement of this agreement as set
forth in the preceding sections of this Article, any controversy
or dispute arising out of the failure of the parties to negotiate
a renewal of this Agreement shall be settled as hereinafter pro-
vided:
(a) Should the negotiations for a renewal of this Agreement
become deadlocked in the opinion of the Union representative(s)
or of the employer(s) representative, or both, notice to that effect
shall be given to the National Joint Adjustment Board.
If the Co-Chairmen of the [NJAB] believe the dispute might
be adjusted without going to final hearing before the [NJAB],
each will then designate a panel representative who shall pro-
ceed to the locale where the dispute exists as soon as conven-
ient, attempt to conciliate the differences between the parties and
bring about a mutually acceptable agreement. If such panel rep-
resentative or either of them conclude that they cannot resolve
the dispute, the parties thereto and the Co-Chairmen of the
[NJAB] shall be promptly notified without recommendation
from the panel representatives. Should the Co-Chairmen of the
[NJAB] fail or decline to appoint a panel member or should no-
tice of failure of the panel representatives to resolve the dispute
be given, the parties shall promptly be notified so that either
party may submit the dispute to the [NJAB].
The dispute shall be submitted to the [NJAB] pursuant to the
rules as established and modified from time to time by the
[NJAB]. The unanimous decision of said Board shall be final
and binding upon the parties, reduced to writing, signed and
mailed to the parties as soon as possible after the decision has
been reached. There shall be no cessation of work by strike or
lockout unless and until said Board fails to reach a unanimous
decision and the parties have received written notification of its
failure.
5 Art. XIII of the contract provides:
SECTION 1. This Agreement . . . shall continue in force
from year to year [after the expiration date of June 30, 1987]
unless written notice of reopening is given not less than ninety
(90) days prior to the expiration date. In the event such notice
of reopening is served, this Agreement shall continue in force
and effect until conferences relating thereto have been termi-
nated by either party, provided, however, that the contract expi-
ration date contained in this section shall not be effective in the
event proceedings under Article X, Section 8 are not completed
prior to that date. In that event, this Agreement shall continue
in full force and effect until modified by order of the [NJAB]
or until the procedures under Article X, Section 8 have been
otherwise completed.
6 Deklewa, supra.
7 The text of the proviso reads:
It is not the intent of the NJAB to impose any non-mandatory
subjects of bargaining on an unwilling party. Therefore, in the
event the NLRB or any court having jurisdiction over the matter
finds any provision of the agreement imposed herein, to which
an objection is raised, is not a mandatory subject of bargaining,
that provision will be deleted. In such event the parties are di-
rected to enter into negotiations to replace that provision of the
contract with a mandatory provision. In the event the parties
cannot agree upon a replacement for the disputed section, the
NJAB retains jurisdiction to resolve that issue.
the Employer was a member of the Association and
had assigned its bargaining rights to it.3
The 1985–1987 collective-bargaining agreement
contained an interest arbitration clause providing for
arbitration of controversies or disputes arising out of
the failure of the parties to negotiate a new or suc-
ceeding agreement. The interest arbitration clause in-
cluded a provision establishing a procedure for submit-
ting any such dispute to the National Joint Adjustment
Board (NJAB).4 The agreement also contained an expi-
ration clause which provided that the agreement auto-
matically renewed itself unless timely notice of re-
opening was given and that the contract expiration date
(of June 30, 1987) would not be effective if pro-
ceedings under the interest arbitration clause had not
been completed prior to that date.5
On January 21, 1987, the Employer withdrew its
delegation of bargaining authority from the Association
and notified it of its intention to bargain individually
with the Respondent following the expiration of the
collective-bargaining agreement on June 30, 1987. By
letter dated March 26, 1987, the Employer notified
both the Association and the Respondent that it in-
tended to ‘‘negotiate our own agreements upon expira-
tion of our present agreements.’’ Representatives of the
Employer and the Respondent met once in May 1987
to discuss a successor contract, but no agreement was
reached.
On July 2, 1987, the Employer notified each of its
sheet metal employees and the Respondent that it was
unilaterally changing the employees’ terms and condi-
tions of employment and, under recent Board author-
ity,6 it was under no obligation to bargain for a new
contract. On July 9, 1987, the Respondent informed
the Employer that it regarded the Employer as bound
to the interest arbitration provision of the expired con-
tract and that it intended to submit the parties’ failure
to arrive at a new agreement to the NJAB for resolu-
tion.
The Employer refused to recognize the NJAB’s ju-
risdiction and refused to participate in the NJAB hear-
ing on August 3, 1987. The Employer raised no spe-
cific objection to any specific terms of the contract
proposed by the Respondent. About August 7, 1987,
the NJAB rendered its award imposing a new collec-
tive-bargaining agreement on the parties to be effective
from July 1, 1987, to June 30, 1989. That contract in-
cluded an interest arbitration provision and a provision
(art. V, sec. 1), carried over from the expired contract,
requiring membership in the Respondent as a condition
of continued employment. The award also included a
proviso stating that any provision of the imposed col-
lective-bargaining agreement found nonmandatory by
the Board or a court would be deleted and referred
back to the NJAB if the parties could not agree on a
replacement for the disputed provision.7
925SHEET METAL WORKERS LOCAL 162 (DWIGHT LANG’S ENTERPRISES)
8 The Employer filed a reply to the counterpetition. On September
14, 1988, the court granted the Employer’s motion to stay the pro-
ceedings pending the Board’s decision.
9 However, contrary to the Regional Director, the Board concluded
that the RM petition should be processed since the Union claimed
majority status after the expiration of the contract. (The decision was
by unpublished order in Case 32–RM–570.) The Union lost the elec-
tion and the Certification of Results to that effect issued on April
12, 1989.
The Employer refused to comply with the award and
filed a petition in state court to vacate it. The Re-
spondent removed the case to Federal court and filed
a counterpetition to confirm the award. Both petitions
are currently pending.8 On two occasions in November
1987, the Respondent requested information from the
Employer about its current employees so that it could
verify the Employer’s compliance with the union-secu-
rity clause of the contract imposed by the NJAB. The
Employer has not complied with these requests.
The stipulation of facts does not state whether the
1985–1987 agreement was a Section 8(f) or a Section
9(a) agreement. However, in separate proceedings be-
fore the Board in which the Employer sought the proc-
essing of an employer (RM) petition under Section
9(c)(1)(B) of the Act, the Regional Director found that
the parties had an 8(f) contract. Neither party sought
review of that portion of the Regional Director’s deci-
sion, and the Board affirmed it.9
B. Contentions of the Parties
The General Counsel contends that the Respondent’s
submission of the bargaining dispute to the NJAB for
binding interest arbitration and its later efforts to en-
force the resulting award in court violated Section
8(b)(1)(B) by forcing the Employer to relinquish its
statutory right to select its own representatives for col-
lective bargaining. The General Counsel points out that
under the terms of article X, section 8, of the collec-
tive-bargaining agreement, the NJAB is empowered to
resolve disputes ‘‘arising out of the failure of the par-
ties to negotiate a renewal agreement.’’ (Emphasis
added.) Thus, according to the General Counsel, the
applicability of the interest arbitration provision is lim-
ited to those entities signatory to the agreement—the
members of the Association and the Respondent. Since
the Employer had timely withdrawn from the Associa-
tion, the General Counsel argues that the Employer
was no longer a ‘‘party’’ to the agreement to which ar-
ticle X, section 8, by its own terms applied. Moreover,
the General Counsel contends, the Employer, having
terminated its 8(f) relationship with the Respondent on
July 2, 1987, no longer had a collective-bargaining re-
lationship with the Respondent. Thus, the General
Counsel argues, the Respondent’s action in unilaterally
invoking the interest arbitration provision must be seen
as an attempt to substitute the NJAB for any bar-
gaining representatives that the Employer might choose
on its own behalf. Therefore, the General Counsel con-
cludes the Employer is deprived of its right, under
Section 8(b)(1)(B), to select its own bargaining rep-
resentative.
The Employer argues that article X, section 8, forces
an employer to consent to representation by a multiem-
ployer bargaining group even after, as here, that em-
ployer has properly withdrawn bargaining authority
previously granted to that group. According to the Em-
ployer, the Respondent, by unilaterally declaring a
deadlock and invoking the contractual interest arbitra-
tion provision, has violated Section 8(b)(1)(B) by co-
ercing it in the selection of its bargaining representa-
tive. The Employer also contends that the Respondent
further violated Section 8(b)(1)(B) by attempting to en-
force the NJAB-imposed agreement, which itself con-
tained an interest arbitration clause through which the
Employer would be forced to relinquish its bargaining
authority in perpetuity.
The Employer contends that the grounds for these
violations are not affected by Deklewa because the par-
ties remained in a collective-bargaining relationship,
notwithstanding that neither Section 8(a)(5) nor Sec-
tion 8(b)(3) applied to their action. In the Employer’s
view, the continuing relationship was based on the Re-
spondent’s invocation of interest arbitration, the result-
ing collective-bargaining agreement imposed by NJAB,
the Respondent’s efforts to enforce that agreement in
Federal court, and the Respondent’s claim of majority
status among the Employer’s employees. Thus, con-
cluded the Employer, the Respondent has demonstrated
an intent to represent the Employer’s employees and
its actual purpose in invoking interest arbitration was
to interfere with the Employer’s selection of its bar-
gaining representative.
The Respondent argues that the Employer’s act of
withdrawing from the Association which had freely ne-
gotiated the interest arbitration provision is not, con-
trary to the General Counsel’s theory of the case, suffi-
cient grounds for finding that the Respondent’s later
invocation of article X, section 8, constituted unlawful
coercion of the Employer. The Respondent denies that
the withdrawal from the multiemployer association can
expunge article X, section 8, by stressing that there is
no contingent term in the contract declaring that a
change in bargaining representative (from the NJAB to
some other representative) cancels the provisions of ar-
ticle X, section 8. Thus, according to the Respondent,
there is no ‘‘escape clause’’ from the interest arbitra-
tion that the complaint reads into the collective-bar-
gaining agreement.
C. Analysis and Conclusions
The central issue in this case is whether the Re-
spondent, which had an 8(f) relationship with the Em-
ployer, violated Section 8(b)(1)(B) of the Act by (1)
926 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Though no 8(b)(1)(B) violation as to attempted court enforce-
ment was alleged, we find on the basis of the stipulated facts and
the briefs that the issue was fully litigated.
11 296 NLRB 1095 (1989).
12 The Collier standard is consistent with the Supreme Court’s
holding in Steelworkers v. Warrior & Gulf Navigation, 363 U.S.
574, 582–583 (1960), that, consistent with the congressional policy
in favor of settlement of disputes through arbitration, ‘‘[a]n order to
arbitrate [in a Sec. 301 suit to compel arbitration] the particular
grievance should not be denied unless it may be said with positive
assurance that the arbitration clause is not susceptible to an interpre-
tation that covers the asserted dispute. Doubts should be resolved in
favor of coverage.’’
Chairman Gould finds that the policy favoring the peaceful settle-
ment of disputes through arbitration expressed by the Supreme Court
in the Warrior & Gulf case in the context of grievance arbitration
applies with equal force to interest arbitration. In his view, that pol-
icy also compels the conclusion that interest arbitration is a manda-
tory subject of bargaining on which a party may insist to impasse.
He would, therefore, overrule Sheet Metal Workers Local 59 (Em-
ployers Assn.), 227 NLRB 520 (1976), and other cases holding that
interest arbitration is a nonmandatory subject of bargaining. 13 938 F.2d 1356 (D.C. Cir. 1991).
unilaterally submitting unresolved bargaining issues
between it and the Employer to the interest arbitration
procedures contained in the 1985–1987 agreement after
the Employer had timely withdrawn from and revoked
its assignment of bargaining rights to the Association
and notified the Respondent that it was under no obli-
gation to bargain for a new contract and (2) filing a
Federal court action to confirm the resulting arbitration
award.10 We find that the Respondent did not act un-
lawfully in either respect.
The analytical framework for resolving 8(b)(1)(B)
allegations of this nature was established in Electrical
Workers IBEW Local 113 (Collier Electric),11 which
issued after this case was transferred to the Board.
Under Collier, the Board considers whether the union
has a reasonable basis in fact and law for submitting
unresolved bargaining issues to interest arbitration. If
such a basis exists—i.e., if the agreement arguably
binds the employer to the interest arbitration provi-
sions—the union may lawfully invoke its contract
rights, including initiating court action to enforce any
resulting contract. On the other hand, if the agreement
does not arguably bind the employer to interest arbitra-
tion, then the union will unlawfully coerce the em-
ployer in the selection of its collective-bargaining rep-
resentative, in violation of Section 8(b)(1)(B), by sub-
mitting unresolved bargaining issues to interest arbitra-
tion.12
Collier emphasized, however, that the presence of
an interest arbitration clause in a collective-bargaining
agreement does not relieve employers and unions of
their responsibility to engage in good-faith bargaining.
On proper invocation of its jurisdiction, the Board will
review the bargaining for a renewal agreement to en-
sure that the parties have bargained in good faith be-
fore submitting any unresolved issues to interest arbi-
tration.
The Collier doctrine has met with court approval. In
West Coast Sheet Metal v. NLRB,13 the court examined
the Board’s decision in light of the statute and its leg-
islative history and held that Collier was ‘‘reasonable’’
and ‘‘consistent’’ with the National Labor Relations
Act.
The court declared that in Section 8(b)(1)(B), ‘‘Con-
gress was targeting union practices absent in Collier
Electric, i.e., the conditioning of bargaining upon an
employer’s affiliation with a multiemployer associa-
tion.’’ 938 F.2d at 1362. The court stated that ‘‘the
Board could reasonably classify the peaceful, good-
faith resort to legal process as a legitimate effort to
preserve the fruits of prior industry-wide bargaining,
not as unlawful ‘restraint’ or ‘coercion.’’’ Id.
The court also rejected the argument that Collier is
inconsistent with the clear and unmistakable waiver
standard:
We find this argument misguided. ‘‘Waiver’’ is
a concept that operates to counter claims that a
recognized right has been infringed; it does not
apply beyond the scope of the right that has alleg-
edly been invaded. In Collier Electric, however,
the Board in effect decided that the employer’s
right at issue is not so sweeping as West Coast
conceives it to be. On the Board’s analysis, which
we have found to be reasonable, [S]ection
8(b)(1)(B)’s ban on union ‘‘restraint’’ and ‘‘coer-
cion’’ does not bestow upon an employer, who
has withdrawn mid-term from a multiemployer as-
sociation, any right to be free from a union’s in-
vocation, after bargaining in good faith to im-
passe, of an at least arguably applicable interest
arbitration provision. In the present case, there-
fore, the Board had no occasion to determine
whether West Coast had ‘‘waived’’ its [S]ection
8(b)(1)(B) right, ‘‘clearly and unmistakably’’ or
otherwise; instead, the key question is simply
whether Local 206 infringed that right, either by
unreasonably invoking the interest arbitration
clause, or by bargaining in bad faith before invok-
ing the clause. [Id.]
Finding that the Board had reasonably answered that
‘‘key question,’’ the court affirmed the Board’s dis-
missal of the unfair labor practice complaint.
Applying the Collier standard to the facts in this
case, we find that the Respondent did not violate Sec-
tion 8(b)(1)(B) by submitting negotiating issues to
NJAB over the Employer’s objection and seeking a
court order binding the Employer to the terms of the
collective-bargaining agreement set by the interest ar-
bitration award. Our finding is consistent with the
Board’s findings in Sheet Metal Workers Local 20
(Baylor Heating), 301 NLRB 258 (1991); as well as
927SHEET METAL WORKERS LOCAL 162 (DWIGHT LANG’S ENTERPRISES)
14 The difference appears in par. 8(a) (see fn. 4 above). Whereas
here, the right to invoke interest arbitration is granted specifically to
the Union and the ‘‘employer(s) representative,’’ in the earlier cases
that right was granted to the union and the ‘‘Local Contractors Asso-
ciation.’’
15 Art. X, sec. 8, of the contract does not contain language specifi-
cally stating that an employer who has withdrawn from the multiem-
ployer association is no longer bound to the contractual interest arbi-
tration procedures. Further, we note that it is not disputed that the
Employer, by virtue of its membership in the Association, was a
party to the 1985 agreement. Therefore, the contract’s frequent ref-
erences to the rights and obligations of the parties under art. X, sec.
8, establish, arguably, that the Employer is covered by the interest
arbitration provisions of the contract.
The Respondent engaged in one session of collective bargaining
with the Employer, and the stipulation of facts contains no indication
that it would not have bargained further had the Employer not at-
tempted to repudiate the bargaining relationship. Accordingly, there
is no basis for finding that the Respondent failed to bargain in good
faith; see Collier, 296 NLRB at 1098. In any event, there is no alle-
gation that the Respondent violated Sec. 8(b)(3).
16 See Collier, 296 NLRB at 1097 fn. 9.
17 In light of that provision, our dismissal of the complaint should
not be construed as a departure from Board law holding that it is
unlawful to insist that another party be bound against its will to in-
terest arbitration. See Sheet Metal Workers Local 59 (Employers
Assn.), supra.
Chairman Gould agrees, in the circumstances of this case, that the
Employer is not required by the NJAB award to submit any addi-
tional unresolved disputes to interest arbitration. Although the Chair-
man would find interest arbitration clauses to be mandatory subjects
of bargaining, his view is that when the parties entered into the
agreement containing the interest arbitration clause, they were aware
that Board precedent held such clauses to be nonmandatory subjects
of bargaining and that any subsequent award imposing interest arbi-
tration could not be imposed upon the parties without their mutual
consent.
18 Tampa Sheet Metal Co., 288 NLRB 322, 325 (1988).
in Sheet Metal Workers Local 54 (Texas Sheet Metal),
297 NLRB 672 (1990); and Sheet Metal Workers
Local 283 (Conditioned Air), 297 NLRB 658 (1990),
where the unions were found to have acted lawfully by
unilaterally submitting bargaining disputes to interest
arbitration pursuant to contractual provisions virtually
identical to those contained in article X, section 8, in
this case.14 For the reasons set forth in those decisions,
we find that the contractual interest arbitration provi-
sions here could arguably be interpreted as binding the
Employer as a single employer on whose behalf the
provisions were negotiated and agreed to by the Asso-
ciation when it was still a member of the Association
and had not yet revoked the assignment of bargaining
rights to the Association.15
We recognize that the parties’ rights and obligations
under 8(f) agreements are governed by Deklewa. How-
ever, for the reasons stated in Baylor, supra, we find
that nothing in Deklewa mandates a different result.
Here, as in Baylor, the introductory language of article
X, section 8, requires submission to the NJAB fol-
lowing any ‘‘failure of the parties to negotiate a re-
newal of this Agreement.’’ We find that this language
arguably binds the Employer to a renewal of the agree-
ment and to the NJAB’s resolution of disputes con-
cerning that renewal. Arguably, by agreeing to the in-
terest arbitration clause, the parties have agreed to ex-
tend their bargaining relationship beyond the contract’s
expiration date and thus the Employer’s privilege
under Deklewa to repudiate the relationship had not
been triggered at the time of submission to the NJAB.
We further find that the Respondent did not violate
Section 8(b)(1)(B) to the extent its submission to the
NJAB might have included interest arbitration provi-
sions in the prospective contract. In this regard, the
stipulation of facts states that only one bargaining ses-
sion took place between the Respondent and the Em-
ployer, and it does not indicate that the subject of in-
terest arbitration came up at that meeting. The stipula-
tion does not contain any description of the contract
terms proposed by the Respondent to the NJAB; it
does state that the Employer refused to participate in
the NJAB proceeding and raised no specific objection
to any of the terms in the Respondent’s proposal. In
its award, the NJAB simply directed the Employer to
execute a collective-bargaining agreement containing
the terms of the contract between the Respondent and
the employers represented by the Association. In these
circumstances, there is no basis for a finding that the
Respondent specifically proposed the inclusion of an
interest arbitration clause in the new contract, let alone
that it insisted to impasse on such a term. Nor did the
Respondent protest the limitation placed on the interest
arbitration provisions by the NJAB in its award, that
is, that any provision in the imposed collective-bar-
gaining agreement found nonmandatory by the Board
or a court would be deleted. Indeed, in its
counterpetition for enforcement, the Respondent re-
quested the court to confirm the award ‘‘in all re-
spects.’’
In finding that the Respondent did not violate Sec-
tion 8(b)(1)(B), we stress that we are not consigning
the Employer to a ‘‘perpetual cycle of binding interest
arbitration.’’16 The NJAB award assures that neither
party will be forced to accept, over its objection, any
provision that is a nonmandatory subject of bar-
gaining.17 As interest arbitration is a nonmandatory
subject, we find that the Employer is not required by
the NJAB award to submit any additional unresolved
disputes to interest arbitration.18
From these findings, it follows that the Respondent
did not violate Section 8(b)(1)(B) by petitioning the
court for enforcement of the NJAB award. As the
Board noted in Collier, under the Supreme Court’s de-
cision in Bill Johnson’s Restaurants v. NLRB, 461 U.S.
731 (1983), if a lawsuit has a reasonable basis in fact
and law, the Board may not enjoin the suit, but must
allow it to proceed. Here, as we have found, the Re-
spondent’s invocation of the interest arbitration proce-
928 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 We emphasize that our dismissal of the complaint does not re-
quire that the Employer engage in multiemployer bargaining. The
Employer timely and unequivocally revoked its assignment of bar-
gaining authority from the Association and specifically elected to
bargain as an individual employer. That was its privilege; see Retail
Associates, 120 NLRB 388 (1958). Moreover, as we have seen, the
NJAB award expressly disclaims any intention to impose nonmanda-
tory terms on an unwilling party. As the selection of a multiem-
ployer organization as an individual employer’s bargaining represent-
ative is a nonmandatory subject, it is evident that the award was not
intended to force the Employer to engage in further bargaining
through the Association. See, e.g., Retail Clerks Union Local 770
(Fine’s Food Co.), 228 NLRB 1166, 1170 (1977).
Finally, as we noted in fn. 9, above, an election was held among
the Employer’s employees after the NJAB had rendered its decision,
and the Respondent lost. When the Respondent lost the election, the
contract imposed by the NJAB was voided, and the parties’ 8(f) rela-
tionship came to an end. Deklewa, 282 NLRB at 1385.
1 Whether or not the Respondent included an interest arbitration
provision in its submission to NJAB, it is clear that the NJAB award
included an interest arbitration provision, and that, by means of its
court action to compel enforcement of the award, the Respondent at-
tempted to impose interest arbitration on the Employer without the
latter’s consent.
Our colleagues ‘‘emphasize’’ that dismissal of the complaint does
not require that the Employer engage in multiemployer bargaining.
However, the critical fact is that the dismissal deprives the Employer
of its statutory right to bargain through representatives of its own
choosing.
dures of the contract has a reasonable basis in fact and
law, and we therefore will not interfere with the Re-
spondent’s attempt to enforce the arbitration award in
court.
For these reasons, we find that the Respondent did
not violate Section 8(b)(1)(B) of the Act and shall dis-
miss the complaint.19
CONCLUSIONS OF LAW
1. Dwight Lang’s Enterprises, Inc. is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Respondent, Sheet Metal Workers’ Inter-
national Association, Local Union No. 162, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. The Respondent did not violate Section 8(b)(1)(B)
or Section 8(b)(1)(A) as alleged in the complaint.
ORDER
The complaint is dismissed.
MEMBERS STEPHENS AND COHEN, dissenting in part.
1. For the reasons set forth in Member Stephens’
dissenting opinion in Sheet Metal Workers Local 20
(Baylor Heating), 301 NLRB 258 (1991), we would
find that the Respondent violated Section 8(b)(1)(B) of
the Act by submitting its unresolved dispute with the
Employer to interest arbitration and by filing an action
under Section 301 to enforce the NJAB’s award, which
included an interest arbitration provision.1
2. We join with the majority in denying the General
Counsel’s motion to withdraw the 8(b)(1)(A) allega-
tions of the complaint. Unlike our colleagues, however,
we find that the Respondent violated Section
8(b)(1)(A) by invoking the interest arbitration provi-
sions of the expired collective-bargaining agreement
and imposing on the Employer, without its consent, a
successor agreement that included a union-security
clause.
The Employer was, through its membership in the
Association, party to prehire collective-bargaining
agreements sanctioned by Section 8(f). On July 2,
1987, the Employer, relying on the then recently
issued Deklewa, terminated its voluntary bargaining re-
lationship with the Respondent. In response to the Em-
ployer’s court efforts to vacate the NJAB arbitration
award of August 7, 1987, the Respondent sought,
through its counterpetition in Federal court, to enforce
an arbitration award which imposed on the Employer’s
employees a collective-bargaining agreement con-
taining a union-security clause at a time when the Re-
spondent was not the Section 9(a) representative of
these employees and when, in our view, the Employer
had not agreed to be bound by the agreement con-
taining the clause. By these actions the Respondent
violated Section 8(b)(1)(A), as alleged.