Dependable Sheet Metal, 195 (1997)

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

Metal. Case 20-CB-10032

August 8, 1997

DECISION AND ORDER

BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS

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

FINDINGS OF FACT

1. JURISDICTION

   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.

2. ALLEGED UNFAIR LABOR PRACTICES

   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 in individual bargaining for an agreement to succeed the 1989-1992 Standard Form of Union Agreement imposed by the NJAB award. By letters dated January 30, 1992, to Redwood SMACNA and the Respondent, Dependable reiterated its intent to bargain individually.

      In early 1992, Dependable and the Respondent began negotiations for a new collective-bargaining agreement. During these negotiations, Dependable told the Respondent that it did not want to pay into the industry fund, because it was adamantly opposed to having any moneys go to Redwood SMACNA. The industry fund makes payments to Redwood SMACNA for industry promotion. Dependable told the Respondent that it wanted nothing to do with Redwood SMACNA.

      On June 22, 1992, Dependable and the Respondent entered into an agreement settling their disputes,3 including the litigation concerning the 1989 NJAB award and the negotiations for a successor collective-bargaining agreement. The settlement provided that the parties would execute and abide by the 1992-1995 Redwood SMACNA Standard Form of Union Agreement, as modified to delete the industry fund and interest arbitration provisions. The settlement provided further that Dependable would be allowed to negotiate individually for a wage increase to take effect July 1, 1994, and if individual negotiations failed to yield an agreement on the amount of the increase, Dependable could choose to either pay an increase equal to that negotiated by Redwood SMACNA or to submit the matter to interest arbitration.

      At the time the parties entered into the settlement, Redwood SMACNA and the Respondent were still negotiating the 1992-1995 Standard Form of Union Agreement. The agreement ultimately negotiated by Redwood SMACNA and the Respondent contained an assignment of bargaining rights clause in article XIV, section 5, and in addendum 1, item 45, section B.4 Although Dependable never executed the 1992-1995 Standard Form of Union Agreement, it did abide by all of its mandatory terms and conditions of employment.

      On December 2, 1992, Redwood SMACNA and the Bay Area Association of SMACNA Chapters (Bay Area SMACNA), entered into a participation agreement. As a result of that agreement, the bargaining rights of employer members of Redwood SMACNA were assigned to Bay Area SMACNA.

      In mid-1994, Dependable informed the Respondent that it was prepared to pay the third year wage increase negotiated by Redwood SMACNA. Historically, the Respondent decided how such increases were to be allocated between wages and benefit trust funds. In response to Dependable's inquiry, the Respondent told Dependable to accrue the money and the allocation would be determined later.

      Sometime prior to June 30, 1994, the Respondent and Bay Area SMACNA began negotiations which culminated in January 1995 with an extension of the 1992-1995 Standard Form of Union Agreement term to June 30, 1999, in exchange for the elimination of the wage increase which was to take effect July 1, 1994. Dependable was not at the time affiliated with Bay Area SMACNA, and was not involved in the negotiations.

      3 The settlement resolved, by its terms, ''all disputes, whether known or unknown'' existing between the parties including, but not limited to, the negotiations for a successor collective-bargaining agreement, legal proceedings concerning the 1989 NJAB award, and a separate legal proceeding which is unrelated to the instant...