Dependable Sheet Metal, 195 (1997)

Docket Number:20-CB-10032

Sheet Metal Workers' International Association, Local Union No. 104 and Dependable Sheet

Metal. Case 20-CB-10032

August 8, 1997



Upon a charge filed August 2, 1995, by Dependable Sheet Metal, the Regional Director for Region 20 issued a complaint September 29, 1995, against the Respondent, Sheet Metal Workers' International Association, Local Union No. 104, alleging that the Respondent violated Section 8(b)(3) of the Act by failing and refusing to bargain on an individual basis with the Employer, Dependable Sheet Metal (Dependable). The Respondent filed a timely answer admitting in part and denying in part the allegations of the complaint.

On January 29, 1996, the General Counsel, the Respondent, and Dependable filed with the Board a stipulation of facts and a motion to transfer this case to the Board. The parties agreed that the charge, the complaint, the answer, the stipulation of facts, and the appendix, shall constitute the entire record. The parties also waived a hearing before, and the issuance of a decision by, an administrative law judge and indicated their desire to submit this case directly to the Board for findings of fact, conclusions of law, and a decision and order. On April 9, 1996, the Board issued an Order conditionally approving the stipulation.1 Thereafter, the General Counsel, the Respondent, and Dependable filed briefs.

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



    Dependable, a corporation, with an office and place of business in Vacaville, California, has been engaged as a heating and sheet metal contractor in the construction industry. During the 12-month period ending December 31, 1994, Dependable, in conducting its business operations, purchased and received at its Vacaville, California facility goods valued in excess of $50,000 from other enterprises located within the State of California, which goods the other enterprises had received directly from points outside the State of California.

    The parties stipulated and we find, that Dependable is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Respondent is a labor organization within the meaning of Section 2(5) of the Act.


    1. Facts

      Dependable has recognized the Respondent as the collective-bargaining representative of its employees since 1968. This recognition has been embodied in successive collective-bargaining agreements, the most recent of which was effective from July 1, 1992, to June 30, 1995.2 At all times since April 16, 1991, the Respondent has been the exclusive collective-bargaining representative of the unit based on Section 9(a) of the Act.

      At all material times, the Redwood Empire Chapter, Sheet Metal and Air Conditioning Contractors' Association, Inc. (Redwood SMACNA), has been an organization composed of various employers, one purpose of which is to represent its employer-members in negotiating and administering collective-bargaining agreements with various labor organizations, including the Respondent.

      For approximately 5 years, Dependable authorized Redwood SMACNA to be its representative for the purpose of collective bargaining and for the adjustment of grievances. Pursuant to this authority, Dependable was bound to the terms of the July 1, 1986, to June 30, 1989 Standard Form of Union Agreement between the Respondent and Redwood SMACNA.

      By letter dated January 24, 1989, Dependable notified Redwood SMACNA that Redwood SMACNA was no longer authorized to be its representative for the purpose of collective bargaining with the Respondent or for the adjustment of grievances. Also in 1989, Dependable resigned its membership in Redwood SMACNA, and since 1989, has not paid dues to Redwood SMACNA or to any other SMACNA Chapter.

      Thereafter, Dependable bargained independently with the Respondent for a new collective-bargaining agreement to succeed the 1986-1989 Redwood SMACNA Standard Form of Union Agreement. Unable to reach accord on terms for a new agreement, the parties submitted the disputed issues to the National Joint Adjustment Board (NJAB), as required by the interest arbitration provisions of the 1986-1989 Standard Form of Union Agreement. On August 4, 1989, the NJAB issued a decision directing the parties to execute

      1 The Board's approval of the stipulation was conditioned on the parties' submission of certain missing appendix pages and on their further stipulation that at all material times the Employer has been an employer engaged in commerce within the meaning of Sec. 2(2),

      (6), and (7) of the Act. The parties subsequently satisfied these conditions.

      2 The following employees of Dependable constitute a unit appropriate for collective bargaining:

      All employee classifications set forth in the collective bargaining agreement between the Employer and the Union in effect from July 1, 1992 to June 30, 1995, excluding guards and supervisors as defined in the Act.

      VerDate 11-MAY-2000 14:48 Apr 30, 2002 Jkt 197585 PO 00004 Frm 00195 Fmt 0610 Sfmt 0610 D:\NLRB\324.023 APPS10 PsN: APPS10

      a new 3-year collective-bargaining agreement identical in terms to the 1989-1992 Standard Form of Union Agreement and addenda, excluding the interest arbitration and most favored nations clauses.

      A dispute arose between the Respondent and Dependable over the nonmandatory terms and conditions of employment imposed by the NJAB decision. Dependable filed a petition in the United States District Court for the Northern District of California to vacate the decision. The court remanded the matter to the NJAB. On August 8, 1990, in a clarification of its earlier decision, the NJAB ruled that because Dependable had not previously raised any specific nonmandatory issues other than interest arbitration, it had waived its right to negotiate over these matters. Dependable and the Respondent thereafter continued to litigate whether Dependable was bound to the nonmandatory terms of the 1989-1992 Standard Form of Union Agreement.

      In letters dated January 21, 1992, Dependable notified both Redwood SMACNA and the Respondent that it intended to engage...

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