Sheet Metal Workers, Local 59

520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sheet Metal Workers International Association, Local Union No. 59 and Employers Association of Roofers and Sheet Metal Workers, Inc. Cases 4- CB-2490 and 4-CB-2491 December 22, 1976 DECISION AND ORDER On March 30, 1976, Administrative Law Judge Eugene George Goslee issued the attached Decision in this proceeding. Thereafter, Respondent Union filed exceptions and a supporting brief, and the General Counsel and the Charging Party both filed cross-exceptions and a brief in response to Respon- dent's exceptions and in support of their cross- exceptions. The Board i has considered the record and the attached Decision in light of the exceptions , cross- exceptions, and briefs and has decided to affirm the rulings, findings,2 and conclusions3 of the Adminis- trative Law Judge and to adopt his recommended Order. We agree with the Administrative Law Judge's conclusion that the dispute resolution clauses in issue are nonmandatory subjects of bargaining and, as such, the Union's insistence upon them to impasse constituted a violation of Section 8(b)(3). Briefly, the collective-bargaining agreement between the Em- ployers Association and Respondent provided that disputes concerning the terms of future agreements would ultimately be submitted for resolution to the National Joint Adjustment Board, a panel consisting of representatives from the International Union and the Sheet Metal and Air Conditioning Contractor's National Association . The Administrative Law Judge found that here, as in The Columbus Printing Press- men & Assistants ' Union No. 252, Subordinate to IP & GCU (The R. W. Page Corporation), 4 the clause in controversy did not directly relate to wages , hours, and terms and conditions of employment , but instead applied only to the processes available to the parties in the event they could not reach agreement as to the I As we find that no useful purpose will be served by consolidating the instant case with Cases 15-CB-1549, 1546, 1566, and 1567, or by continuing the proceedings , the motion filed by Mobile Mechanical Contractors Association, Inc., is hereby denied 2 We clarify the Administrative Law Judge's finding concerning the Respondent Union's demand the Association agree to abide byjunsdictional guidelines unobjected to by the SMACNA insofar as he refers to the SMACNA as "a disputes resolving body " In fact, the SMACNA is an employer association which acts as the collective -bargaining representative and grievance adjuster for its employer-members 3 Although we agree with the Administrative Law Judge's finding that Respondent Union violated Sec 8 (b)(3) by bargaining to impasse over the SASMI plan, we do not adopt his rationale. Without deciding whether SASMI is or is not a mandatory subject of bargaining , we find that the insistence on SASMI violates the Act because as a prerequisite for participation in SASMI the local union and the employer must be parties to a standard form of union agreement which contains some mandatory as well 227 NLRB No. 90 terms of a future contract. We agree with that analysis, and further agree that this case is distin- guishable from Mechanical Contractors Association of Newburgh, 5 since the Employers Association had no representation on the National Joint Adjustment Board, and could not have continued bargaining at that level in any meaningful sense of the term. Member Fanning's determination that "it cannot be concluded that Respondent's referral of the matter to the NJAB created a bargaining impasse" would seem to indicate that the procedures here are a form of two-level negotiations, a finding he specifically disclaims. For, if the dispute resolution mechanisms here are indeed a form of "interest arbitration," there must be some point at which those procedures may be invoked, and the contract in this case refers to that juncture as "deadlock." Whether the point of final disagreement be characterized as "deadlock" or "impasse," it is clear that the immediate parties to the agreement could not resolve their differences over the inclusion of article X, section 8, in the new contract, and the Respondent invoked the procedures of that term to refer the matter to the National Joint Adjustment Board for resolution. The fact that the dispute could have been remanded to the parties for further discussion does not in any way preclude a finding of insistence to impasse between the original parties in the first instance. To accept Member Fanning's analysis, we would be placed in the anomalous position of saying that, while the disputed clauses may be invoked only when the parties are deadlocked, nonetheless this is not and can never be an impasse within the meaning of Section 8(b)(3). Whatever Member Fanning's definition of impasse may be, the fact remains that the procedures of the National Joint Adjustment Board were invoked because of an ultimate disagreement between the parties to the contract as to the retention of a nonmandatory subject of bargaining.6 While we are aware of "the national labor policy favoring good-faith negotiation of agreements and adherence to such agreements when made" adverted to by Member Fanning in his dissent, we are also as nonmandatory subjects of bargaining Therefore, the insistence to impasse on SASMI is an implied insistence on the standard form agreement. In fact, the Administrative Law Judge found, and we agree, that Respondent had urged the employer throughout the negotiations to sign the standard agreement 4 219 NLRB 268 (1975), enfd. F.2d 1161 (C.A 5, 1976). S 202 NLRB I(1973). 6 Member Fanning suggests that the parties ' failure to reach agreement as to the retention of a nonmandatory subject of bargaining was "covered" by a contractual provision on how to proceed further Of course, that provision was the very term on which the parties could not agree, the NJAB procedure Clearly, in a collective-bargaining sense, the parties had reached a dead end insofar as coming to an agreement on the nonmandatory dispute resolution procedures. These procedures were not a "way out" of the impasse, rather, they involved the setting in motion of the nonmandatory term which the Employers Association had a right to insist not act as a stumbling block to an agreement on mandatory terms. SHEET METAL WORKERS, LOCAL 59 521 cognizant of the well-settled principle that, one having agreed to a nonmandatory term, a party does not thereafter impliedly waive the right to insist that the term be removed from the bargaining table in any subsequent negotiations.? A violation of this latter principle is, however, the precise effect that would flow from a failure to find a violation of Section 8(b)(3), in cases such as the instant one. Because the nonmandatory subjects in issue here Ideal with contract dispute resolution, the very procedures in controversy could always be invoked to determine their continued force and effect, with the very real prospect of a perpetual existence for the nonmanda- tory contract term .8 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 disputes associated with -the - collective-bargaining process, it is also true that the right to select one's own bargaining representative is so basic and impor- tant 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 nonmandatory -topic not act as a barrier to any future negotiations.9 In the instant case, the Employers Association -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, Respondent was not privileged to insist upon the nonmandatory 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 contract provisions in this case are concededly nonmandatory subjects of bargaining, an area of law within the peculiar competence -of the Board. Furthermore, we also agree with the Administrative' Law Judge's fording that Respondent's conduct from the outset of negotiations was designed to supplant the Employers Association as bargaining representative with the National Joint Adjustment Board. We therefore find that the Union's insistence that National Joint Adjustment Board procedure be retained in the contract was an attempt to force the Employers Association 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. Our fording of an 8(b)(1)(B) violation in this case rests not only on the fact that the Union insisted to impasse on certain nonmandatory bargaining sub- jects, but also on the basis that the entire thrust of the Union's tactics was to force the,negotiations to a deadlock in order to submit the dispute to the National Joint Adjustment Board , a body on which the Association has no representation. Local 80, Sheet Metal Workers International Association, AFL-CIO, et al. (Turner-Brooks, Inc.),10 relied on by Member Fanning in his dissent, is analogous to the instant case only up to a point. For here, unlike Turner- Brooks, there was more than a mere insistence to impasse on a permissive contract term. In the instant case, the entire course of the Union's conduct reflected a calculated design to go beyond impasse, invoke the procedures of the National Joint Adjust- ment Board, and effectively 'insure that the nonman- datory dispute settlement clauses would be deter- mined by a panel on which the Association was not represented, in patent derogation of its right to bargain collectively- through representatives of its own choosing. Thus, the- Union's conduct-in this case amounted to more than insistence or an "attempt at persuasion in the free market place of ideas," 11 but instead involved tactics calculated to circumvent the normal free play of bargaining in order to force the Association to abrogate its right to choose its own bargaining representative. Contrary to Member Fanning, we would not view our authority to proceed under the "restrain or coerce" language of Section 8(b)(1')(A) and 8(b)(1)(B) as limited to tactics involving violence, intimidation, or economic reprisals, and have so held on occasion. In Waterfront Guard Association, Local 1852, Indepen- dent Watchmen's Association of the Port of Baltimore (Amstar Corporation), 12 the Board adopted the Administrative Law Judge's finding of an 8(b)(1)(A) violation where the union, without economic action or threats thereof, sought to enforce an arbitral award that would have compelled certain Pinkerton employ- ees to join the union at Amstar, where the Pinkerton employees worked., 7 Allied Chemical & Alkali Workers of America Local Union No. I v. Pittsburgh Plate Glass Co, Chenucal Division, 404 U.S. 157, 187 (1971). 8 Respondent Union and the Employers Association were operating under a 1-year contract as the result of an NJAB award issued in June 1974. Immediately thereafter, the Employers Association informed Respondent Union that it would not agree to the NJAB procedure in the next contract. This being the case, the Employers Association was not required to rescind the existing agreement, go into, district court to avoid the enforcement of the provision, or engage in any other legal proceedings to obtain , what it had a right to obtain in negotiations and under the aegis of our Act. - , 9 N.L.RB. v. WoosterDivisionofBorg-Warner Corp, 356 U.S.342 (1958) 10 161 NLRB 229,235 (1966). 11 International Ladies' Garment Workers' Union, AFL-CIO, et al (Slate Belt Apparel Contractors' Association, Inc ), 122 NLRB 1390 (1959), enforce- ment denied 274 F.2d 376 (C.A. 3, 1960). 12 209 NLRB 513 (1974), enfd. 508 F.2d 839 (C A. 4, 1974). See also Brotherhood of Teamsters and Auto Truck Drivers Local No 70 of Alameda County, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Kockos Bros., Inc., Wisinger Trucking Service„Inc.), 183 NLRB 1330 (1970). 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we would find a violation where, as here, the Union's insistence is designed to culminate not merely in impasse, but in a procedure whereby the Employer is denied its statutory right to appoint its own bargaining representatives. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Sheet Metal Workers International Association, Local Union No. 59, Wilmington, Delaware, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. CHAIRMAN MURPHY, dissenting: Contrary to my colleagues, I would find no violation of Section 8(b)(1)(B) or 8(b)(3) and I would dismiss the complaint in its entirety. With respect to Section 8(b)(1)(B), it is essential that it be shown that a labor organization has restrained or coerced an employer in order to establish a violation of that section of the Act. Here there was clearly no conduct which may be so characterized. Merely bargaining to impasse on a nonmandatory subject assuming, arguendo, that that is what occurred here-a finding which I would not make for the reasons set forth below-is not restraint and/or coercion within the meaning of Section 8(b) of the Act. Therefore, the General Counsel has not sustained his burden of establishing all elements of such a violation. With respect to the alleged violations of Section 8(b)(3), I would find all the provisions which the Respondent sought to include are mandatory sub- jects of bargaining and hence that Respondent was free to insist to impasse upon their inclusion. I am, of course, aware that the Board has consistently held that industry promotion funds are nonmandatory subjects. However, I can think of no matter more related to terms and conditions of employment of employees than funds directed to the continued existence of their jobs. I have discussed at great length my views on the mandatory nature of interest arbitration clauses in my dissenting opinion in The Columbus Printing Pressmen & Assistants' Union No. 13 With all due respect to the United States Court of Appeals for the Fifth Circuit, I adhere to my position in the above-cited case, noting that the Sixth Circuit, in Chattanooga Mailers Union, Local 92 v The Chattanooga News Free Press Company, 524 F.2d 1305 (1975), held, in another context, that "The enforcement of an interest arbitration clause is withal the scope and purpose of our national labor policy. . i4 Though the matter is not entirely free from doubt, I agree with my colleagues' conclusion that the contractual procedure involved herein provided for interest arbitration of collective-bargaining disputes rather than 252, Subordinate to IP & GCU (The R. W. Page Corporation), 219 NLRB 268 (1975), enfd. 543 F.2d 1161 (C.A. 5, 1976).13 For the same reasons, I would find that the interest arbitration clause in this case is a mandatory subject of bargaining, despite the fact that there are some differences between the clause in- volved here and that in the R. W. Page case. I am persuaded that interest arbitration is the collective- bargaining tool of the future, and the sooner my colleagues recognize this the better. Accordingly, I vigorously dissent from the findings that the Respondent here violated the Act by reason of its bargaining demands. MEMBER FANNING, dissenting: I would dismiss the complaint entirely, for I do not see how it effectuates the policies of the Act to find that a party to a collective-bargaining agreement providing for interest arbitration 14 of disputes arising in the negotiation of a new agreement violates its bargaining obligations under the Act by invoking that contractual procedure. The dispute between the parties which is involved in this case centered on the question of whether certain provisions in their 1974-75 agreement should be retained in a succeeding agreement, the Respon- dent Union seeking and the Employers Association objecting to their retention. After it became apparent that the parties could not themselves come to agreement on this matter, Respondent Union in- voked article X, section 8, of the existing agreement and referred the matter to the National Joint Adjust- ment Board (NJAB), a body established by the International Sheet Metal Workers Union and the Sheet Metal and Air Conditioning Contractors Na- tional Association, Inc. (SMACNA). Though the Employers Association is not a member of SMACNA and thus did not participate in naming industry delegates to NJAB, it had nevertheless agreed to the submission of negotiating disputes to that body for resolution. Respondent Union's submission of this dispute to NJAB was therefore in accordance with its contract with the Employers Association and I do not believe it can be found that invocation of that procedure constituted either a refusal to bargain within the meaning of Section 8(b)(3) or restraint or coercion of the Employers Association in the selec- tion of its bargaining representatives within the meaning of Section 8(b)(1)(B) of the Act. two-level negotiations. By the terms of the contractual provision, such interest arbitration applied to "any' controversy or dispute ansing out of the failure of the parties to negotiate a renewal of this agreement " It is clear, therefore, that the agreement to arbitrate included an agreement to arbitrate the dispute in this case, even though the clauses which the Respondent Union sought to- retain involved permissive rather than mandatory subjects of bargaining I agree with my colleagues in the majority that the clauses involved pertained to permissive subjects of bargaining SHEET METAL WORKERS, LOCAL 59 All of this, I am quite sure, would be concurred in by my colleagues had the disputed provisions related solely to the economic terms and conditions of employment or to other mandatory subjects of bargaining. Had that been the case, I am confident that my colleagues would not find that either the submission of the dispute to the NJAB by Respon- dent or the NJAB's decision that the clauses should be retained in the succeeding agreement over the Employers Association's objection created an im- passe which would justify the Association's placing into effect its own proposals on the matter submitted. Such action by the Employers Association in such circumstances would clearly be a refusal to bargain within the meaning of Section 8(a)(5) and 8(d) of the Act. Of course, this is not such a case. This case involves Respondent's invocation of the contractually agreed- upon arbitration procedures in an effort to obtain a decision by NJAB that clauses dealing with permis- sive subjects of bargaining should be included in a succeeding agreement. Certain additional principles, therefore, come into play, most notably the principle that, though such proposals may lawfully be ad- vanced and negotiated, a party may not negotiate to impasse or "insist upon them as a condition to any agreement." 15 But, if referral to NJAB of a dispute concerning mandatory subjects would not constitute an impasse justifying unilateral action by the employ- er, it can hardly constitute an impasse in bargaining over the nonmandatory subjects involved herein. That is not, it seems to me, a mere matter of logic or of the definition of the term "impasse"; it accords with the national labor policy favoring good-faith negotiation of agreements and adherence to such agreements when made. It is also a conclusion flowing from the nature of the dispute-settling machinery established by article X, section 8, of the parties' agreement, the provision invoked by Respon- dent Union. That section provides that, until and unless the NJAB gives' the parties written notice that it has been unable to reach a unanimous decision, neither party shall lock out or strike in support of its demands, thus insuring that the employer's opera- tions will not be disrupted during negotiations. The section further provides for mediation attempts by the NJAB; if the mediation fails or is not practicable, it provides that both parties may appear before the is NLRB v Wooster Division of Borg-Warner Corp, 356 US 342 (1958) 16 The majority questions my conclusion that no impasse had been reached in the negotiations by Respondent's submission of the issues in dispute to the NJAB, suggesting that an "ultimate disagreement" on retention of a nonmandatory subject necessarily qualifies I suggest that their approach ignores the fact that the "ultimate disagreement" here involved is unusual in being covered by a contractual provision on how to proceed 523 NJAB to present evidence and argument in support of their positions; it requires unanimous agreement of industry and union representatives for a binding award to be made; and, finally it provides that the dispute will be remanded to the parties if such a decision cannot be reached. Clearly those procedures do not permit a conclusion that the party referring the matter to the NJAB will automatically win its case, or even that a decision settling the dispute will be reached by the NJAB. Accordingly, it cannot be concluded that Respondent's referral of the matter to the NJAB created a bargaining impasse,16 or amounted to an insistence upon the inclusion of the disputed clauses as a condition to agreement. I, therefore, reject the Administrative Law Judge's conclusion, which the majority opinion adopts, that by invoking the procedures of article X, section 8, in an effort to obtain a decision that the clauses in dispute should be retained in the parties' collective- bargaining agreement, Respondent violated Section 8(b)(3) and 8(b)(1)(B) of the Act. Nor do I believe that Respondent's request that the Employers Association sign the agreement in accor- dance with the NJAB's decision amounts to unlawful insistence on the inclusion of such provisions as a condition of entering into a collective-bargaining agreement. Respondent has not struck nor threatened to strike in support of such demand, and, indeed, article X, section 8, appears to enjoin it from such action. Respondent continues to work under the terms and condition established in the 1974-75 agreement. Though it has filed a Section 301 action in Federal court to enforce the NJAB award, that conduct has not been alleged by the General Counsel nor found by my colleagues to be an unfair labor practice, and no obvious reason appears as to why it should be. For, article X, section 8, is a lawful clause, and having been included in the 1974-75 agreement, as were the other clauses which the Employers Association has objected to, it may be enforceable by suit in Federal court.17 Nor is the Employers Association left without a means of avoiding the continuation of that clause in its collective-bargaining agreement. It can refuse to sign the agreement with that or the other clauses in it, even though the NJAB has decided that the clauses should be retained, without committing an unfair labor practice.18 It has in fact done so. In the court further An impasse lacks that feature As defined by Webster, it is "an impassable road or way; a blind alley, hence a predicament affording no escape." Here the contractual agreement provided the way through, Allied Chenucal & Alkali Workers v Pittsburgh Plate Glass Co, supra, provides the means of escape 17 N LR.B. v. Wooster Division of Borg- Warner Corp, supra 18 This case is distinguishable from Mechanical Contractors Association of Newburgh, 202 NLRB 1(1973), in that there the parties had agreed to interest (Continued) 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD action brought by the Union, it can challenge the merits of the NJAB decision. Whether it can succeed in such efforts is unnecessary for us to decide. It is, however, the court and not this Board that has jurisdiction over the enforceability of the parties' agreement to arbitrate their collective-bargaining disputes. It is to the court and not this Board that the Employers Association should address its argument that it should be released from the bargain it made,19 or that the arbitral forum is unfairly weighted against it, or any other argument it may have so as to avoid a judgment against it in the matter. Insofar as this case is concerned, it readily appears that the Employers Association can refuse to abide by its agreement to arbitrate with respect to the disputed matters without committing an unfair labor practice. I see no reason in law, equity, or in national labor policy why Respondent Union's actions pursuant to and in conformity with that agreement should constitute an unfair labor practice. As I would not find that Respondent Union's conduct violated Section 8(b)(3), it follows that I would also find that Respondent has not violated Section 8(b)(1)(B) by its actions herein. Even assum- ing, however, that Respondent's conduct constituted bargaining to impasse over nonmandatory subjects of bargaining in violation of Section 8(b)(3), I would not find such conduct to be violative of Section 8(b)(1)(B). The statutory prohibition against finding that bargaining to impasse is restraint and coercion within the meaning of Section 8(b)(1)(B) was clearly stated in Local 80, Sheet Metal Workers International Association, AFL-CIO, et al. (Turner-Brooks, Inc), 161 NLRB 229, 235 (1966). In Turner-Brooks, a local union was engaged in negotiations with an employer which was not a member of the employers association with which the union negotiated its "master agree- ment." The union insisted that Turner-Brooks sign the master agreement which required the employer to contribute to an industry advancement fund adminis- tered solely by the employers association to which arbitration only of matters relating to wages, hours,- and terms and conditions of employment, they had not agreed to arbitration over the continuation of the interest arbitration clause itself.That is why l found there that the respondent violated its bargaining obligations by insisting upon referring that issue to the arbitral panel and insisting that the panel's determination that the clause should be continued was binding on the parties. 18 N L R B v Pittsburgh Plate Glass Company, Chemical Division, 404 U. S. 157, 183-187 (1971). Just as the Association had the right to refuse to sign the agreement resulting from submission of the dispute to the NJAB because of the inclusion ofprovisions dealing with nonmandatory subject of bargaining, it had the right to rescind the agreement calling for such submission prior to negotiations Recission of the agreement would have, however, released the Respondent Union from its promise not to strike in behalf of its demands concerning economic items and other mandatory subjects of bargaining. The Association was not, apparently, willing to release Respondent from that no-strike pledge, for it is apparent that the negotiations were carried out under its umbrella I do not understand my Turner-Brooks did not belong. Turner-Brooks signed the master agreement under protest, but refused to make the industry fund contributions. Concluding that the industry fund was a nonmandatory subject of bargaining, the Board found that the union violated Section 8(b)(3), but not Section 8(b)(1)(B) because the stipulation of the parties referred to no restraint or coercion on the part of the union with respect to the selection of employer representatives for collec- tive bargaining.20 The Board stated at 235: We do not agree, however, with the General Counsel's contention that Respondent Local 80 also violated Section 8(b)(1)(B) of the Act by requiring [Turner-Brooks] to accept an Industry Promotion Fund in which [Turner-Brooks] would play no role in its administration. Admittedly, Respondent Local 80 insisted upon [Turner- Brooks'] acceptance of these provisions however, mere insistence is not to be equated with the restraint and coercion required by the statute to establish an 8(b)(1)(B) violation. [Emphasis supplied.] The Board has long held that, in the 8(b)(1) subsection of the Act, "Congress was aiming at means, not at ends," Perry Norvell Company, 80 NLRB 225, 239 (1948). Thus, in interpreting Section 8(b)(1)(A), the Board with approval of the United States Supreme Court has held that "Section 8(b)(1)(A) is a grant of power to the Board limited to authority to proceed against union tactics involving violence, intimidation, and reprisal or threats thereof- conduct involving more than the general pressures upon persons employed by the affected employers implicit in economic strikes." (Emphasis supplied.) N.L.R.B. v. Drivers, Chauffeurs, Helpers Local Union No. 639, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America [Curtis Bros., Inc.], 362 U.S. 274 (1960), citing National Maritime Union of America, affiliated with the Congress of Industrial Organizations, 78 NLRB 971 (1948), enfd. 175 F.2d 686 (C.A. 2, 1949); Local colleagues or the Association to contend to the contrary. Rather, I perceive their argument to be that Respondent violated Sec. 8(b)(3) by invoking operative provisions of an existing contract. 20 The three cases cited by the majority contain as part of their fact content the requisite restraint and coercion for an 8 (b)(l) finding Interna- tional Ladies' Garment Workers' Union (Slate Belt Apparel Contractors' Association), supra, which was not enforced by the Court of Appeals for the Third Circuit, and Brotherhood of Teamsters and Auto Truck Drivers, Local No. 70 (Kockos Bras, Inc), supra, which was enforced by the Court of Appeals for the Ninth Circuit, were plainly attempts to dictate to an employer that it change its representative for bargaining by refusing to deal with a former union officer in the role of employer representative . Also, in Waterfront Guard Association, Local 1852 (Amstar Corporation), supra, the union demand that an arbitration award be construed to cover employees of an employer that took no part in the arbitration proceeding was in essence an attempt to interfere with employee Sec. 7 rights, in turn exposing the employer to 8(aX2), and possibly 8(a)(3), proceedings. SHEET METAL WORKERS, LOCAL 59 525 74, United Brotherhood of Carpenters and Joiners of America, A. F. of L., et al. (Ixa A. Watson Company d/b/a Watson's Specialty Store), 80 NLRB 533 (1945), enfd. 181 F.2d 126 (C.A. 6, 1950) affd. 341 U.S. 707 (1951). Inasmuch as the "restrain and coerce" clause of Section 8(b)(1) applies to both Section 8(b)(1)(A) and 8(b)(1)(B), the Board under Section 8(b)(1)(B), as under Section 8(b)(1)(A), is limited to authority to proceed against union tactics involving "violence, intimidation, and reprisal or threats thereof." There is no evidence in the instant case that the Respondent Union engaged in physical force or threats of force or economic reprisal, as a means of encouraging the Association to agree to a contract containing sections 3, 4, and 8 of article X, and article XI. In the absence of such conduct, the Board is powerless to act under Section 8(b)(1)(B). If Respondent Union's conduct is proscribed by the Act, it is proscribed by Section 8(b)(3). Though I have already indicated why I believe that section has not been violated by Respon- dent Union's conduct herein, it seems to me that even under the majority's view of that aspect of the case the 8(b)(I)(B) allegation must be dismissed. Accordingly, I dissent. DECISION STATEMENT OF THE CASE EUGENE GEORGE GOSLEE, Administrative Law Judge: These consolidated cases came on to be heard before me on January 22 and 23, 1976, at Philadelphia, Pennsylvania, upon a complaint' issued by the General Counsel of the National Labor Relations Board and an answer filed by Sheet Metal Workers International Association, Local Union No. 59, hereinafter called respondent. The issues raised by the pleadings relate to whether or not Respondent violated Section 8(b)(1XB) and 8(b)(3) of the National Labor Relations Act, as amended, by acts and conduct hereinafter specified. Briefs have been received from the General Counsel, the Respondent, and the Charging Party, and have been duly considered. Upon the entire record in this proceeding, and having observed the testimony and demeanor of the witnesses, I hereby make the following: FINDINGS OF FACT 1. COMMERCE AND JURISDICTION The complaint alleges, the answer admits, and I find that the Employers Association of Roofers and Sheet Metal Workers, Inc., hereinafter called the Association, is a multiemployer association composed of employers in the sheet metal and roofing industry, which exists for the purpose, in whole or in part, of representing its employer- members in collective-bargaining negotiations with labor organizations, including Respondent. The complaint also alleges, the answer admits, and I find that during the year preceding the issuance of this consolidated complaint the employer-members of the Association purchased goods and materials in interstate commerce valued in excess of $50,000, and that the Association and its employer-mem- bers are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. R. THE STATUS OF THE RESPONDENT UNION The complaint further alleges, the answer admits, and I find that Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES ALLEGED The General Counsel alleges and Respondent denies that since on or about March 31, 1975, Respondent has demanded and insisted to impasse that the Association agree to include in a prospective collective-bargaining agreement terms and clauses which would require that: (1) Grievances not settled by the Association and the Respondent Union at the lower levels of the grievance process may be appealed to a panel to which the Association has given no authority, and on which the Association has no representative. (2) In the event no settlement is arrived at in accordance with the procedures detailed in paragraph (1) above, the Respondent Union or the Association may appeal to a higher body to which the Association has given no authority, and on which it has no representative. (3) That all disputes and controversies over terms of future collective bargaining agreements are to be resolved by bodies to which the Association has given no authority, and on which the Association has no representative. (4) That the Association agree to be bound to agreements covering work jurisdictional matters reached by organizations to which the Association has given no authority, and on which the Association has no representative. (5) That the Association supply the Respondent Union with periodic financial statements of the Associ- ation-administered Industry Advancement Fund. (6) That the Association participate in the Stabiliza- tion Agreement for the Sheet Metal Industry (SASMI). The General Counsel alleges that, by the conduct delineated in paragraphs (1) through (4) above, Respondent restrained and coerced the Association in violation of Section 8(bXl)(B) of the Act. The General Counsel also alleges that Respondent violated Section 8(b)(3) of the Act by bargaining to impasse on the demands set forth in paragraphs (1) through (6) above, and that Respondent further violated Section 8(b)(3) by bargaining with a fixed mind and position on all of the above demands, as well as a demand that the prospective bargaining agreement con- I The consolidated complaint in this matter was issued on September 15, 1975, upon charges filed on May 2, 1975, and duly served on Respondent on May 3, 1975 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tinue to include a provision allowing the reopening of negotiations in midterm. IV. THE BACKGROUND OF THE DISPUTE There is no dispute in this proceeding that the Associa- tion has been in existence since 1939, and during the intervening years has been a party to a series of collective- bargaining agreements with Respondent, the most recent of which expired on April 30, 1975. There is similarly no dispute that the Association and its member-employers have recognized Respondent as the exclusive collective- bargaining representative in a unit consisting of all journey- men and apprentice sheet metal workers employed by the employer-members of the Association, excluding supervi- sors, and that the recognized unit is a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. The record also reflects that, pursuant to the terms of the 1974-75 bargaining agreement, Respondent gave timely notice in January 1975 of its intent to terminate or modify the agreement, and the parties met for negotiations on six separate occasions from March 31 through April 30, 1975. By way of further background, the record reflects that, as a result of negotiations for the • 1973-74 collective-bargain- ing agreement, the Association and Respondent agreed to certain contractual provisions which are the focal points of the alleged unfair labor practices of this consolidated complaint. Included in the 1973-74 bargaining agreement was article X, which provided a multistage grievance and dispute adjustment procedure and a provision for the resolution of disputes and controversies arising in connec- tion with the negotiation of a renewed collective-bargaining agreement. The provisions of article X, which were contin- ued under the terms of the parties' 1974-75 bargaining agreement, recite as follows: ARTICLE X SECTION 1. Grievances of the Employer or the Union, arising out of interpretation or enforcement of this Agreement, shall be settled between the Employer directly involved and the duly authorized representative of the Union, if possible. An Employer may have the local Association present to act as his representative. SECTION 2. Grievances not settled as provided in Section 1 of this Article may be appealed by either party to the Local Joint Adjustment Board in the area in which the work is performed and such Board shall meet promptly on a date mutually agreeable to the members of the Board, but in no case more than fourteen (14) calendar days following the request for its services, unless the time is extended by mutual agreement of the parties, to render a final and binding determination, except as provided in Sections 3 and 5 of this Article. The Board shall consist of an equal number of represen- tatives of the Union and of the local Employers' Association and both sides shall cast an equal number of votes at each meeting. The local Employers' Associa- tion, on its own initiative, may submit grievances for determination by the Board as provided in this Section. Notice of appeal to the Local Joint Adjustment Board shall be given within thirty (30) days after termination of the procedures prescribed in Section I of this Article, unless the time is extended by a mutual agreement of the parties. SECTION 3. Grievances not disposed of under the procedure prescribed in Section 2 of this Article, because of a deadlock, or failure of such Board to act, may be appealed jointly or by either party to a Panel consisting of one (1) representative appointed by the General President of Sheet Metal Workers' Internation- al Association and one (1) representative appointed by the Chairman of the Labor Relations Committee of Sheet Metal and Air Conditioning Contractors' Nation- al Association, Inc. Appeals on behalf of employees shall be mailed to the General Secretary-Treasurer of the Sheet Metal Workers International Association and those on behalf of an employer mailed to the Secretary of the Labor Committee of the Sheet Metal and Air Conditioning Contractors' National Association, Inc. Joint appeals shall be mailed to the Secretaries of both Associations. Notice of appeal to the Panel shall be given within thirty (30) days after termination of the procedures prescribed in Section 2 of this Article. Such Panel shall meet promptly, but in no event more than fourteen (14) calendar days following receipt of such appeal, unless such time is extended by mutual agree- ment of the Panel members. Except in case of deadlock, the decision of the Panel shall be final and binding. Notwithstanding the provisions of Paragraph I of this Section, a contractor who was not a party to the labor agreement of the area in which the work in dispute is performed may appeal the decision of the Local Joint Adjustment Board, including a unanimous decision, and request a Panel hearing as set forth in Section 3 of this Article, providing such appeal is approved by both the Chairman of the Labor Relations Committee of Sheet Metal and Air Conditioning Contractors' National Association, Inc. and by the General President of Sheet Metal Workers' Internation- al Association. SECTION 4. Grievances not settled as provided in Section 3 of this Article may be appealed jointly or by either party to the National Joint Adjustment Board, as established by the Sheet Metal Workers' International Association and the Sheet Metal and Air Conditioning Contractors' National Association, Inc. Submission shall be made and decisions rendered under such procedures as may be prescribed by such Board, from time to time, and mutually approved by the parties creating it. Copies of the procedures shall be available from, and submissions of grievances may be made to, either the General Secretary of Sheet Metal Workers' International Association or the Secretary of the Labor Committee of the Sheet Metal and Air Conditioning Contractors' National Association, Inc. Submissions on appeal to the National Joint Adjustment Board shall be made within thirty (30) days after termination of the procedures prescribed in Section 3 of this Article. SECTION 5. A Local Joint Adjustment Board, Panel and the National Joint Adjustment Board are empow- SHEET METAL WORKERS, LOCAL 59 527 ered to render such decisions and grant such relief to either party as they deem necessary- and proper, including awards of damages or other compensation and, if it is believed warranted, to direct that the involved agreement and any other agreement or agree- ments between the employer and any other local union affiliated with the Sheet Metal Workers' International Association be cancelled, provided that any decision of a Local Joint Adjustment Board directing cancellation of an agreement or agreements may be appealed by the affected employer or local union as a matter of right, directly to the NationalJoint-Adjustment Board. SECTION 6. In the event any party fails or refuses to comply with any decision of a local Joint Adjustment Board or Panel, without appeal, or any decision of the National Joint Adjustment Board, within thirty (30) days after notice thereof, a Local Joint Adjustment Board, Panel, or any party to the dispute may, in addition to any other legal remedies which may be available to the parties, request the National Joint Adjustment Board to cancel the involved agreement and any other agreements between the involved em- ployer and other local -unions affiliated with Sheet Metal Workers' International Association. Unless oth- erwise decided by unanimous vote, the National Joint Adjustment Board shall cancel such agreements if it finds the involved party to be in noncompliance with the decision in question. Requests for the Board's services shall be made in the same manner and in the same form as other appeals to the National Joint Adjustment Board and the procedure followed shall be the- same except that any, intermediate step or steps shall be - omitted and the request made directly to the {National Joint Adjustment Board. SECTION 7. Failure to exercise the right of appeal at any step thereof within the time limit provided therefor shall void any right of appeal applicable to the facts and remedies of the grievances involved. There shall be no cessation of work, by strike or lockout during the pendency of the procedures provided for in this Article. Except in case of deadlock, the decision of the National Joint Adjustment Board shall be fmal and binding. SECTION 8. In addition to the settlement of grievances arising out of interpretation or enforcement of this agreement as set forth in the preceding sections of this Article, any controversy or dispute arising out of the failure of the parties to negotiate a renewal of this agreement shall be settled as hereinafter provided: (a) Should the negotiations for renewal of this agreement become deadlocked in the opinion of the Local -Union or of the Local Contractors' Association, 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 Conditioning Contractors' National Association, Inc. If the General President, of Sheet Metal Workers'- International Association and the Chairman of the-Labor Committee of Sheet Metal and Air Conditioning Contractors' National As- sociation believe the dispute might be adjusted without going to fmal hearing before the National Joint Adjustment Board, each will then designate a panel representative who shall proceed to the locale where the dispute exists as soon as conve- nient, attempt to conciliate the differences be- tween the parties and bring about a mutually acceptable agreement. If such panel representa- tives or either of them conclude that they can not resolve the dispute, the parties thereto and the General President of Sheet Metal Workers' Inter- national Association and the national office of Sheet Metal and Air Conditioning Contractors' National Association shall be promptly so noti- fied without recommendation from the panel representatives. Should the President of Sheet Metal Workers' International Association or the Chairman of the Labor Committee of Sheet Metal and Air Conditioning Contractors' National As- sociation fail or decline to appoint a panel member or should notice of failure of the panel representatives to resolve the dispute be given, the parties shall promptly be notified so that either party may submit the dispute to the National Joint Adjustment Board. The dispute shall be submitted to the National Joint Adjustment Board pursuant to the rules as established and modified from time to time by the National Joint Adjustment Board. The unanimous decision of said Board shall be fmal 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. (b) Any application to the National Joint Adjustment Board shall be upon forms prepared for that purpose subject to any changes which may be decided by the Board from time to time. The representatives of the parties who appear at the hearing will be given the opportunity to present oral argument and to answer any ques- tions raised by members of the Board. Any briefs filed by either party including copies of pertinent exhibits will also be exchanged between the parties in advance of the hearing. (c) The National Joint Adjustment Board shall have the right to establish time limits which must be met with respect to each and every step or procedure contained in this section. In addition, the President of SMWIA and the Chairman of the National Labor Committee of SMACNA shall have the right to designate time limits which will be applicable to any particular case and any step therein which may be communicated to the parties by mail, telegram, or telephone notifica- tion. (d) Unless a different date is agreed upon mutually between the parties or is directed by the unanimous decision of the National Joint Adjust- 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment Board, all effective dates in the new agree- ment shall be retroactive to the date immediately following the expiration date of the expiring agreement. Also included in the 1973-74 bargaining agreement, and continued over into the 1974-75 agreement, were three contractual provisions which are at issue in this dispute by virtue of the General Counsel's allegations of violations of Section 8(b)(1)(B) and 8(b)(3) of the Act. Article XI of the prior agreements pertains to the resolution of jurisdictional disputes; article XIII pertains to the right of renegotiation under certain conditions dunng the term of the contract; and addendum 21 relates to the Sheet Metal Workers Industry Fund. The two articles and addendum 21 provide, respectively, as follows: ARTICLE XI SECTION I. Agreements, national in scope, between Sheet Metal Workers' International Association and other International Unions, covering work jurisdiction and the assignment, allocation and division of work among employees represented for the purposes of collective bargaining by such labor organizations, shall be respected and applied by the Employer, provided such Agreements have been consummated with the knowledge of and without objection from Sheet Metal and Air Conditioning Contractors' National Associa- tion, Inc. ARTICLE XIII SECTION 1. This Agreement and Addenda Numbers --- through --- attached hereto shall become effective on the - day of ---, 19-, and remain in full force and effect until the - day of ---, 19-, and shall continue in force from year to year thereafter 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 terminated by either party. SECTION 2. Notwithstanding any other provision of this Article, or any other Article of this Agreement, whenever an amendment to the Standard Form of Union Agreement shall be adopted by the National Joint Labor Relations Adjustment Committee, any party to this Agreement, upon the service of notice to all other parties hereto, shall have this Agreement re- opened thirty (30) days thereafter, for the sole and only purpose of attempting to negotiate such amendment or amendments into this Agreement for the duration of the term hereof. There shall be no strike or lockout over this issue. ADDENDUM NO. 21 On and after May 1, 1965, the employer contribution to the Sheet Metal Workers Local No. •59 Industry Fund will be three cents ($0.03) per hour for each hour worked by employees covered by this Agreement. The Sheet Metal Workers Industry Fund will be administered by Trustees selected by the Employers Association of Roofers and Sheet Metal Workers, Inc., provided, however, that if dunng the life of this Agreement, the National Labor Relations Act is amended to provide for employee participation in the administration of the Industry Fund, the Union will become immediately entitled to an equal number of Trustees as the employers with equal voice. The Employer agrees that no monies will be expend- ed from the Industry Fund for any purpose which is not in the best interests of the Union or the Industry Advancement Fund. The said Industry Advancement Fund shall provide for monthly Financial Statements and Annual audited reports of the Industry Fund and that copies thereof shall be furnished to the Union. The Union shall regularly be kept informed of the activities and progress of the Fund. By way of explanation, the National Joint Adjustment Board, hereinafter called the NJAB, is a dispute-resolving body composed of representatives of the Sheet Metal Workers International Association, herein called the Inter- national Union, and representatives of the Sheet Metal & Air Conditioning Contractors' National Association, or SMACNA. While there is some testimentary and documen- tary evidence that the NJAB is composed of an equal number of representatives from the International Union and SMACNA, there is other and more persuasive evidence that the equal representation provision has not been uniformly applied. When, however, there is unequal repre- sentation on one side, each side has equal voting power. There is no dispute here that the Association has never been affiliated with SMACNA, has never designated SMACNA to represent the Association or its employer-members for any purpose, and has no designated representative on the NJAB. Vernon J. Menard, director of labor relations for the Delaware Contractors Association, the parent organization of the Association involved in this proceeding, testified that he participated in the negotiations for the 1974-75 collec- tive-bargaining agreement. At a meeting on May 7, 1974, which was attended by a representative of SMACNA and a representative of the International Union in accordance with article X, section 8(a) of the bargaining agreement, the parties reached a deadlock on the issue of wages, the institution of a joint apprenticeship and training fund, and the Association's participation in the stabilization agree- ment for the Sheet Metal Industry, or SASMI. At the May 7 meeting the parties reached agreement on the joint appren- ticeship and training fund issue, but were unable to resolve their differences on the wage package and the Association's participation in SASMI. While the record is not entirely clear, it appears that Respondent, believing that a deadlock existed within the meaning of article X, section 8 submitted the dispute for resolution by the NJAB. The NJAB met at Hilton Head, South Carolina, on June 25, 1974. A dispute developed at the hearing because Menard, not SMACNA, represented the Association, but the issue was apparently resolved, and Menard did partici- pate in the hearing. SHEET METAL WORKERS, LOCAL 59 529 On June 30, 1974, the NJAB, through Edward Carlough, its chairman and the president of the International Union, issued its decision on the bargaining dispute, directing the parties to execute a 1-year agreement effective May 1, 1974. By its decision the NJAB directeda wage increase of $1.12 per hour, 27 cents more than Respondent had demanded in the underlying negotiations, and 62 cents more per hour than the Association had offered. The NJAB award also required the employer-members of the Association to contribute 2 cents per hour to an apprenticeship fund, and the NJAB retained jurisdiction over the dispute until the parties had opportunity to develop a trust agreement for the apprenticeship training fund. Sometime in July, after the NJAB award, Menard told Robert - Shearer, business manager of Respondent, that the employer-members of the Association were in a state of shock over the NJAB award, and that the Association had determined that they would never again agree to the NJAB procedures for resolution of bargaining disputes. On several occasions from December 1974 through March 1975, the Association met with Respondent over the creation of a trust agreement for the apprenticeship training fund. In . December 1974, Respondent presented a draft trust agreement which provided, inter alia, that the NJAB -procedures be used to resolve disputes arising over the terms of the trust agreement. In the course of meetings after the presentation of the draft trust agreement, Menard informed Shearer that the Association would not agree to any reference to the NJAB in the trust agreement, and that the Association had resolved that it would never again agree to the disputes resolution provisions contained in article X of the existing contract. Shearer replied that article X was a terrific procedure, and that the Union wanted to keep it in the next contract. On March 27, 1975, the Association and Respondent reached agreement on the trust, substituting a series of impartial arbitration procedures for the NJAB as a device to resolve disputes arising over the terms of the trust agreement. During -the course of the March 27 meeting, Menard again informed Menard that the Association would not agree in the upcoming negotiations to a continuation of the procedures specified in article X of -the existing contract. As related above, in January 1975, Respondent gave timely notice of intent to reopen the contract, and the parties met for the first bargaining session on March 31. Shearer presented Respondent's demands, which included an economic package for wages and increases in the contribution to the pension and the apprenticeship and training funds. The Union's demands also included the adoption of the SASMI Plan. In explaining the Union's demands, Shearer informed the Association that, in view of the economic depression in the sheet-metal industry, and particularly in Delaware, he had been hopeful of light and easy negotiations, but because of the Association's attitude on issues such as article X, and its insistence on using Menard and the Delaware Contractors Association in the -bargaining processes, the Union felt obligated to come to negotiations with the demands presented. During the course of the March 31 meeting, Menard reviewed the Union's demands, and informed Shearer that the Associa- tion had prepared written proposals which would complete- ly revise and localize the traditional collective-bargaining agreement between the parties. Menard presented the Association's proposals and explained their contents. He explained that he had revised the existing agreement with a new format, so that some 28 addenda to the contract would be incorporated at appropriate places in the main body of the bargaining agreement. _Menard explained that he had rewritten some provisions of the contract, and that the Association's proposal excised all reference to the NJAB, SMACNA, and the existing means for the resolution of certain disputes, through the elimination of articles X, XI, XIII and addendum 21. In lieu of these previously agreed upon contractual provisions, the Association's proposals provided for alternate means of resolving disputes through the use of arbitration procedures before the American Arbitration Association and the use of other devices for the resolution of jurisdictional disputes. As explained by Menard, the Association's proposals would also eliminate that portion of addendum 21, requiring the Association to provide Respondent with financial statements and annual audited reports of the Sheet Metal Workers Industry Fund. In reply to the Association's proposals, Shearer stated his inability to comprehend the objections to article X, stated that the only reason for the employers' objection was because they were screwed in 1974, and stated that Respondent wanted to retain article X, and that it would have to be a part of any new agreement. As to articles XI and article XIII, section 2, Shearer stated that these provisions were part of the standard form agreement, and the Union didn't intend to change them.-On addendum 21, Shearer told the Association that the industry fund was basically the Union's money, that he didn't care about the Associations concern with -the illegality of the financial reporting procedures, and that the Union had a right to the provision and wanted it to stay in the contract. There was also a discussion of Respondent's SASMI demands at the March 31 meeting. The Association expressed concern about the legality of the plan and its tax ramifications, as well as concern that the Local Union had no representation on the trust body. The Association also questioned whether SASMI payments could - be made to employees in the event of a strike or a lockout. Shearer, on behalf of Respondent, expressed complete disagreement with the Association's concerns over SASMI. At a later time, on April 17, Shearer gave the Association a brochure containing questions and answers on the SASMI plan. The parties resumed negotiations on April 1 and, after the Union met separately for several hours, Menard attempted to further explain the contents of the Associa- tion's proposal. Menard was able to reach article III in his review, when Shearer interrupted by slamming down his papers and informing the Association that they were wasting time. Shearer stated that the Union was not going through the Association's proposals, and that the Union was going to stick with the standard form agreement, and the Association might as well get on with it. After some further heated discussion, Menard agreed for the Associa- tion, that to get the negotiations going forward, the standard form agreement would be used for discussion. While nothing concrete appears to have resulted from the 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD April 1 negotiations , Shearer did express the Respondent Union's willingness to discuss and explore some economic issues in the light of economic conditions in the industry, provided the Association was willing to tie those discus- sions in with the adoption of the SASMI plan and the retention of article X. The third negotiation session was held on April 9, and there was further discussion of articles X, XI, and XIII and addendum 21. Shearer explained that he had met with members of the Local, and that the members were extremely upset over the Association 's proposals to rewrite the contract, particularly to eliminate article X. As the discussions ensued, Shearer again informed the Association that all of the disputed provisions were part of the standard form agreement, and would have to remain in the bargain- ing agreement. By way of economics , the Union proposed a 2-year contract, with increases of 20 cents each year, subject, however, to the Association's adoption of the SASMI Plan at a cost of 35 to 40 cents for the second year. The Association answered that the employers could not adopt the SASMI plan for reasons previously explained. Toward the end of the meeting Menard attempted to summarize the negotiations and the hangup on SASMI and the article X procedures, but Shearer insisted that the Union would only negotiate on the basis of the standard form agreement. At a meeting on April 17, the parties reviewed all open issues and reached some agreement on minor issues. The Association then caucused and returned to present a nine- point proposal to the Union. In relevant part, the Associa- tion's counterproposal requested that article X of the existing contract be rewritten to eliminate all reference to the NJAB and SMACNA, in favor of a traditional arbitration clause. The counter-proposal also required elimination of articles XI and XIII, or their redrafting to eliminate all reference to third-party intervention in dis- putes. As to addendum 21, Menard explained that the Association did not want to excise all reference in the bargaining agreement to the industry fund, but only wanted to eliminate the financial reporting obligation. In answer to these portions of the Association's counterproposal , Shear- er stated that the Union had to retain what was already in the contract. The remainder of this meeting was devoted to the Association's counterproposal on the SASMI issue by which the employers agreed to SASMI in the second year of the new contract ( 1) if SASMI payments were not made to members of the Local in the event of a work stoppage; (2) that the SASMI plan be agreed to by a majority of the members of the Local Union in a secret-ballot election; (3) that SASMI be in effect for at least 50 percent of the International Union's membership ; and (4) if SASMI was voted down by the Local membership , the employers would agree to 40 cents per hour effective May 1, 1976, for wages and benefits, but if SASMI became effective, there would be no additional increase for 1976 above the actual cost of SASMI. The Union objected to the Association 's counterproposal on SASMI, but did agree to caucus . The Union did not return with any new or altered proposal, but Shearer informed the Association that the employers' proposals indicated a belief that the Union was very weak, that the Association was not interested in negotiating or settling anything, and as far as the Union was concerned the parties were deadlocked. The union representatives started to leave the hearing room and Menard protested that there was no deadlock and 13 days remained before the contract expired. Shearer insisted that a deadlock did exist and stated that the Union intended to pursue to procedures specified in article X, section 8, of the contract. No further bargaining session was scheduled at the April 17 meeting, but there was some interchange of correspon- dence and telephone conversations between the Associa- tion and the Respondent Union during the next few days. On April 23 Menard wrote to Shearer and requested a further bargaining meeting, expressing fear of a work stoppage and the Association's unwillingness to resolve the terms of the new collective-bargaining agreement under the procedures specified in article X. On April 25 Shearer responded, denying the Union's desire to submit the dispute for resolution to the NJAB, but reiterating the Union's position that article X, section 8, had to remain in the new contract. Shearer also repeated his statement of April 17 that a deadlock existed, informed the Association that the general president of the International and chair- man of the NJAB had already been advised of this fact, but that the Union was agreeable to a further meeting. The parties met on April 29, and Shearer repeated much of the contents of his letter of April 25, including the Union's unwillingness to forego the continued inclusion of article X in the contract. The Association asked for a counterproposal, and after a caucus the Union presented a 14-point counterproposal . The Union's counterproposal contained offers on wages of 20 cents on May 1, 1975, and 60 cents on May 1, 1976, the latter increase to be allocated as the Union saw fit, including allocation to SASMI. While the Union's counterproposal referred to other items, including contractual language changes, it alluded in no way to the contractual provisions at issue in this proceed- ing-articles X, XI, and XIII, and section 2 of addendum 21. Following a review of the Union 's counterproposal, the Association met separately, and returned with a further counterproposal. In this written proposal the Association completely agreed with 9 of 18 offers made by the Union in its counterproposal, partially agreed with an additional 3 or 4, and totally disagreed with the remainder. The disagree- ments pertained to the articles and the addendum specified immediately above, and the Association adhered to its counteroffer of April 17 on SASMI, except that the employers dropped the demand for a secret-ballot election among the membership of the Local Union. The parties agreed to resume negotiations on April 30. On behalf of the Association, Menard suggested that the parties sign a new agreement, including article X and SASMI, but agree to submit these issues to the Board, the district court, or some neutral body for a determination on legality. Shearer replied that the Union would never sign an agreement with such voids or holes. Negotiations contin- ued, some further agreement was reached on minor issues, but there was no change of position on those issues material to this proceeding. Shearer, expressing impatience, stated SHEET METAL WORKERS, LOCAL 59 531 that the parties could not come to an agreement, and informed the Association that the Union had invoked the procedures under section 8 of article X, and that the panelists for the hearing to resolve the dispute had already been assigned. Menard replied that the Association had no intent of participating in the NJAB proceeding. On June 19, the Association informed the NJAB that it would not participate in the hearing scheduled for June 23. On July 28, the NJAB issued its determination, directing the parties to execute a 2-year contract with a wage package of 20 cents for the first year and 60 cents for the second year, the sum of the second year increase to be allocated to wages or existing funds, including SASMI, by vote of the Local Union's membership. The NJAB decision also denied all of the unresolved changes in the bargaining agreement proposed by the Association, and in addition granted the Union's request to reopen negotiations on the apprenticeship trust fund, an issue which the parties had previously resolved on March 27. Subsequent to the NJAB decision, the Association refused to adhere to the award, or to execute a new contract, the Respondent Union filed a Section 301 action before the United States. District Court for the District of Delaware, and that action was pending at the time of the hearing in thisproceeding. The foregoing fmdings are based on a -composite of documentary evidence and the testimony of Vernon Me- nard; and the evidence is. unrebutted. The only relevant evidence adduced by Respondent Union in this proceeding was Shearer's testimony that the Union did not; at any time material to this proceeding, engage in or-threaten economic action, and that Respondent never indicated any unwilling- ness to abide by the ultimate determination of the NJAB. This evidence is similarly-unrebutted. V. CONTENTIONS -OF THE PARTIES AND THE ,'APPLICABLE LAW The General Counsel and the Charging- Party contend that sections 3, 4, and 8 of article X are nonmandatory subjects of bargaining and they argue, accordingly, that by bargaining to impasse on any or all of these issues, Respondent violated - Section 8(b)(3) of the Act. The General Counsel and the Charging Party also contend that by its insistence -upon,inclusion of those three sections of article X - in the prospective bargaining agreement the Union restrained and coerced the employer-members of the Association in the selection of their representatives for the purposes of collective bargaining and the.-adjustment of grievances, and thereby violated Section 8(b)(1)(B) of the Act. The General Counsel and the Charging Party further contend that Respondent entered into ;and continued the bargaining negotiations with a fixed mind and position with respect to those sections of article X delineated above, as well as with respect to articles XI and XIII, section 2, of addendum 21, and the demand that the Association participate in the SASMI plan. 2 356 U.S. 342. - 3 N.L R. B. v Local 264, Labororers' International Union of North Americq 529 F.2d 778, 785 (C A 8, 1976). 4 United Slate, Tile & Composition Roofers, Damp & Waterproof Workers Association, Local No. 220, 177 NLRB 632, 653 (1969); United Slate, Tile & Composition Roofers, etc, Local No, 36, (Roofing Contractors Association), 172 The mutual obligation of employers and unions to bargain in good faith is defined in Section 8(d) of the National Labor Relations Act and requires that they "meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employ- ment ...." A fixed list of subjects for bargaining is not, of course, etched in stone within the contents of Section 8(d), but under the guidance provided by the Supreme'Court of the United States in N.L.R.B. v. Borg-Warner Corporation2 and reinforced in Local 1643 it is clear that: A provision not relating'to any of these particular matters is considered a nonmandatory subject of bargaining and the parties may bargain with respect to that provision if they choose. However, no party may insist upon the inclusion of a nonmandatory provision in the collective bargaining agreement as a precondition to signing the agreement. Provisions which purportedly affect terms and conditions of employment are manda- tory subjects of bargaining only if they encompass some aspect of the employer-employee relationship and do not relate solely to the internal procedures of the employer or the union. With respect to sections 3 and 4 of article X, there is a plentitude of Board and court precedent to establish that grievance and arbitration provisions in a collective-bargain- ing agreement are mandatory subjects of bargaining. In the instant situation, however, the mandatory nature of the basic subject of the bargaining must be assessed against the right of the employers to select their own representative for collective bargaining and the -processing of grievances. Sections 3 and 4 of article X provide the final steps of the grievance procedure through resolution by the Internation- al Union and SMACNA as composite body- functioning as the NJAB. There is no dispute here that the Association and its individual employer-members are neither affiliated with nor represented by SMACNA, and hence have no representation in the course of the NJAB grievance adjustment procedures. I find a sufficient body of precedent to support the conclusion that sections 3 and 4 of article X, as they-provide for the resolution of grievances by a representative not selected by the employers, are nonmandatory subjects of bargaining-' Section 8 of article X, as, that provision provides procedures for the resolution of disputes over prospective bargaining agreements, requires additional consideration. The General Counsel and the Charging Party contend that the provision provides for interest arbitration, that it is therefore a nonmandatory subject for bargaining, and that by insisting to impasse on its inclusion in the future bargaining -agreement, Respondent Union violated Section NLRB 2248, 2251(1968); Southern California Pipe Trades District Council No 16, (Aero-Plumbing Co.) 167 NLRB 1004 (1967), Painters District Council No 36, 155 NLRB 1013, 1017 (1965); United Association of Journeymen and Apprentices of the Plumbing and Ppefitting Industry, Local Union No 525, 135 NLRB 462,471 (1962). 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8(b)(3) of the Act. The General Counsel and the Charging Party rely on Columbus Printing Pressmen. 5 Respondent, on the contrary, contends that section 8 of article X is not an interest arbitration provision, but only provides for a continuation of the bargaining process when the immediate parties to the bargaining process are unable to resolve the dispute. Respondent argues, accordingly, that the facts here fall within the parameters of the Board's decision in Mechanical Contractors Association of Newburgh. 6 In view of the facts as I fmd them here, the provisions of section 8 of article X are not encompassed squarely within the confines of either Mechanical Contractors or Columbus Printing Pressmen. In Columbus Printing Pressmen the bargaining agreement between the employer and the Union contained a provision that disputes with respect to future collective bargaining would be resolved by recourse to a two-stage proceeding. In the first stage the dispute would be submitted to a joint standing committee of four members, two appointed by the union and two appointed by the employer. If, however, a majority of-the joint standing committee failed to resolve the dispute within 30 days, either party could then submit the bargaining dispute for determination by a neutral arbitrator. On the facts in Columbus Printing Pressmen the Administrative Law Judge found that the union had bargained to impasse on a demand to retain the interest arbitration provision in the contract. The Administrative Law Judge also found, as approved by the Board, that interest arbitration clauses do not regulate the terms and conditions of employment of the employees in the contract being negotiated, do not vitally affect such terms and conditions of employment, are not an integral part of such terms and conditions of employment and are clearly not a mandatory subject of bargaining.? It is clear that the provisions of section 8 of article X do not equate with the facts in Columbus Printing Pressmen. The contractual provision here provides only for the submission of disputes over the terms of future collective- bargaining agreements to NJAB, a disputes-resolving body composed of members appointed in equal numbers by the International Union and SMACNA. Ultimate determina- tion of the dispute by a neutral or impartial arbitrator is not provided for under the provisions of section 8 of article X, and presumably the bargaining dispute is remanded to the principles for further bargaining or, economic sanctions if the NJAB fails to reach a determination. In Mechanical Contractors, supra, the contractual provi- sion in issue provided for the submission of unsettled issues over wages, hours, and working conditions to an industrial relations council, composed of equal numbers of represen- tatives appointed by the union's international parent, and representatives of the parent organization of the employers' association. The Administrative Law Judge found that by bargaining to impasse on a demand that the IRC clause be continued in a new collective-bargaining agreement the employer violated Section 8(a)(5) of the Act because the IRC clause required arbitration in lieu of economic action, and was therefore a nonmandatory subject of bargaining. The Board, to the contrary, held: It is true that read literally, the IRC clause appears to endow the Industrial Relations Council with the charac- teristics of a classic arbitration panel. On analysis, however, we find that its composition and its function in this dispute are quite unlike that of arbitration. Thus, while the procedures for presenting a dispute are similar to those used in arbitration, the decision making process is not. There is no neutral or impartial umpire, but rather a panel composed solely of interested parties in equal number. Panel members representing the union are selected by the International, and panel members repre- senting the employer are selected by the employer's parent organization. Any decision of the panel must be_unani- mous. As noted above, the decisions of the panel are made after the parties to the bargaining relationship have presented their positions on the issues blocking the consummation of a final contract. In these circumstanc- es, we cannot but infer that a unanimous decision defining mutually acceptable terms for agreement can only be reached by a process much more closely paralleling collective bargaining, rather than, by a process of judicial or arbitral decisionmaking.8 Section 8 of article X of the clause involved in this proceeding is similar, to that in Mechanical Contractors in that it makes no provision for neutral or impartial arbitra- tion, and the NJAB, like the IRC, is composed of equal representatives of the international union and an employ- ers' group, SMACNA. Here the similarity ends, however, because unlike Mechanical Contractors the Employers Association is not represented on the NJAB, either as an entity or through its parent organization, the Delaware Contractors Association. Accordingly, as the employer- members of the Association are not represented on the disputes resolving panel, the rationale of Mechanical Contractors cannot apply. In all, nevertheless, I find that the facts in this proceeding applicable under section 8 of article X fall within the intended ambit of the Board's rule in Columbus Printing Pressmen. It cannot be said here-that section 8 of article X merely provides foil a continuation of the bargaining process, because the employers are totally unrepresented after deadlock has ensued and the procedures of the NJAB have been ° invoked. The gravamen of Columbus Printing Pressmen is that the clause in issue there was unrelated to wages, hours, or terms and conditions of employment under the provisions of the ensuing collective-bargaining agreement, but had application only to the processes available to the bargaining agent and the employers in the event they were unable to reach agreement over the terms of some future agreement. Here, like Columbus Printing Pressmen, the clause also prohibits the exercise of economic weapons in the event the NJAB procedures are invoked and the prohibition extends so long as the dispute is before the NJAB. 5 The Columbus Printing Pressmen & Assistants' Union No. 252 (The R. W. 7 Columbus Printing Pressmen, supra at 281, citmg N.LR.B. v. Borg- Page Corporation), 219 NLRB 268 (1975). Warner, supra. 6 Mechanical Contractors Association of Newburgh, 202 NLRB 1 (1973). 8 Mechanical Contractors, supra at 2, emphasis supplied. SHEET METAL WORKERS, LOCAL 59 533 I find, on the basis of the foregoing, that section 8 of article X, like sections 3 and 4, is a nomnandatory subject of bargaining. I similarly fmd that the provision is a nonmandatory subject of bargaining by reason that it would require the employer members of the Association, over their objection, to designate a third party as their collective-bargaining agent in the event of disputes over future negotiations.9 The fact that section 8, as well as sections 3,and 4 of article X, was an existing provision agreed to in prior collective-bargaining agreements does not make the subject matter any the less nonmandatory. This was the situation in Columbus Printing Pressmen, where the interest arbitration clause had been ineffective in a series of collective-bargaining agreements over a 6-year time period. Moreover, "By once bargaining and agreeing on a permissive subject, the parties, naturally, do not make the subject a mandatory topic of future bargaining." 10 I have found above that sections 3, 4, and 8 of article X are permissive or nonmandatory subjects for bargaining, and I similarly fmd that Respondent bargained to impasse on its demands that the Association continue these provi- sions in the prospective contract. The facts analyzed above reflect that from the outset of negotiations Respondent adamantly insisted that the standard form agreement, which includes article X, as well as articles XI and XIII, addendum 21, and the SASMI demand were absolute essentials in reaching a new bargaining agreement. At the first bargaining meeting on March 31, Shearer explained the Union's proposals in the light of the Association's objections to article X and related third-party clauses, and the Association's insistence on using Menard and the Delaware Contractors Association as the employers' bar- gaining representative. Shearer made clear, on March 31 and throughout the course of every successive bargaining meeting, that article X, as well as the other provisions of the standard form agreement, had to remain in the new bargaining agreement. At no time during the course of the negotiations did Respondent Union alter its position one iota with respect to these provisions. The Association made counterproposals on article X and related third-party demands, including a willingness to include them in the contract subject to a neutral review as to their legality, but Respondent Union rejected all such overtures with the single pronouncement that only the standard form agree- ment would suffice. As early as April 17, 2 weeks before the expiration of the 1974-75 bargaining agreement, Shearer announced that the parties were deadlocked, and the Union intended to invoke the procedures of article X. On April 30, Shearer repeated that the parties had reached a deadlock, and additionally informed the Association that the Union had invoked section 8 of article X and that the panel to determine the dispute had already been selected. Respondent, again relying on Mechanical contractors, supra, argues that no impasse existed on or before April 30, because the NJAB procedures were only a continuing part of the bargaining process. In my view the contention is specious and, contrary to Respondent's assertion, I cannot find that the NJAB is "almost" the equivalent of the Industrial Relations Council in Mechanical Contractors. The whole gist of this case is the Union's demands that the employer abandon its collective-bargaining representative in favor of the NJAB, a body on which it is not represented and had not selected for bargaining negotiations and the resolution of grievances. It explains nothing to argue that the Union's unlawful tactics came to fruition, and ergo impasse was avoided by invoking the assistance of the same third-party tribunal which caused the impasse in the first instance. Respondent, using the language of section 8 of article X, announced as early as April 17 that the parties were deadlocked, and it appears that the Union invoked the NJAB procedures while still purporting to bargain with the Association. I fully appreciate that the term "deadlock" as defined in section 8 of article X, particularly as it permits a unilateral determination by either party, is not necessarily the legal equivalent of an impasse. Nevertheless, the Union, not the Association, declared the deadlock and invoked the NJAB procedure. The Respondent Union did so, as an ultimate step in its overall tactics as exemplified throughout the whole course of negotiations-no contract without article X, and all of the other provisions of the standard form agreement. I fmd, accordingly, that the Respondent Union bargained to impasse on sections 3, 4, and 8 of article X, and similarly bargained to impasse on articles XI and XIII, addendum 21, and the demand that the Associa- tion participate in the SASMI Plan. In view of the finding above with respect to the totality of the Respondent Union's bargaining to impasse, consider- ation must be given to the allegations that article XI, addendum 21, and the SASMI proposal are also nonman- datory subjects 'of bargaining. Article XI of the contract binds the Association and its employer-members to respect national agreements between the Sheet Metal Workers International and other international unions covering work jurisdiction and the assignment, allocation, and division of work among employees represented by such labor organi- zations, provided the agreements between the internation- als have been consummated with the knowledge and without objection of SMACNA. The same facts apply here as were applied above. The Association and its employer- members are not participants inaany determination arrived at between the Sheet Metal Workers International and other internationals with respect to work jurisdiction and have no representation on those bodies. Nor is the defect in the clause cured by the proviso that the agreements between the internationals must have been consummated with the knowledge and without the objection of SMAC- NA. The Association and its employer-members are not represented by SMACNA, and they have never delegated to SMACNA the right to represent them in the settlement of grievances arising over work jurisdictional matters. In this effect, the procedures delineated in article XI are no different from the procedures for the determination of other grievances contained in sections 3 and 4 of article X. An employer has the right to participate and be heard in the resolution of jurisdictional disputes, and agreements be- tween two or more unions as to the resolution -of such 9 Southern Cal forma Pipe Trades District Council No 16 supra. i0 Allied Chemical & Alkali Workers of Amenca, Local Union No. I v. Pittsburgh Plate Glass Co., Chemical Division, et al., 404 U.S. 157 (1971). 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD disputes do not deprive the Board of 10(k) jurisdiction where the employer is not a party.11 Article XI here prohibits the participation of the employer-members of the Association either in the initial determination reached by internationls, or in the overview exercised by SMACNA. It appears that the Respondent relies on the Board's decision in Local 103, -Ornamental Iron Workers 12 in support` of its contention that jurisdictional disputes are mandatory subjects of bargaining and may be bargained to impasse. In Local 103 the Board, contrary to the- Trial Examiner, found that the subject of jurisdictional disputes is a mandatory subject of bargaining and the union did not violate Section 8(b)(3) by bargaining to impasse on the issue, or violate Section 8(b)(1)(B) be striking to force the employer to agree to the provision. As applicable here, the Board's rationale on the nonmandatory issue was that management members of a tripartite arbitration panel are not "representatives" .of the employer within the scope of Section 8(b)(1)(B). The Board did find an 8(b)(3) violation in Local 103, on grounds that the union had bargained the issue from an inflexible position. On review, the United States Court of Appeals for the Seventh Circuit 13 voiced disagreement that management members of a tripartite arbitration panel are not "represen- tatives" of the employer within the scope of Section 8(b)(1)(B). The court adopted the Board's finding on the 8(b)(3) violation growing out of the union's fixed and inflexible position, but also held that the union -violated Section 8(bX3) by bargaining to impasse on the demand that jurisdictional disputes be submitted to the National Joint Board, and violated Section 8(b)(1)(B) by striking to enforce the demand. On remand 14 the Board modified its order to conform with the court's opinion. Even if I were to consider the Board's original decision in Local 3 as binding precedent, that case is distinguishable. Here, unlike the facts in Local 103, there is no tripartite body for the determination of jurisdictional disputes, unless it is contended that two or more disputing internationals, with the silent acquiescence of SMACNA, constitute a tripartite arbitration panel. Even if so considered, it would not overcome the fact that the Association and its employ- er-members are neither immediately nor remotely repre- sented by SMACNA. In summary, I find and conclude, albeit a means of resolution for jurisdictional disputes is a mandatory subject for bargaining, Respondent Union violated Section 8(b)(3) by bargaining to impasse on the demand, that the Association agreed to abide by jurisdic- tional guidelines arrived at by international unions, unob- jected to by SMACNA, a disputes-resolving body on which the Association is unrepresented. Addendum 21 of the prior contracts relates to the Sheet Metal Workers Industry Fund, which is supported by employer contributions in the amount of 3 cents per hour 11 NL.R.B. v. Plasterers Local Union No. 79, Operative Plasterers' and Cement Masons ' International Association, AFL-CIO 404 U.S. 116, 124-125, 131-34(1971). 12 Local Union No. 103, International Association of Bridge, Structural and Ornamental Iron Workers and Associated General Contractors of America, Evansville Chapter, Inc, 190 NLRB 741(1971). 13 Associated General Contractors of America, Evansville ;Chapter, Inc v. N.L.RB., 465 F.2d 327 (C A. 7, 1972). 14 Local Union No. 103, etc. (Associated General Contractors of America, Evansville Chapter, Inc.), 200 NLRB 77 (1971). for every hour worked by employees covered under the agreement, and which is administered by trustees selected by the Employers Association. The only portion of the clause at issue in this proceeding is that portion of section 3 which requires the industry advancement fund to provide Respondent with monthly financial statements and annual audited reports. The Association objected to the continua- tion of this section in prospective bargaining agreements, and the Union bargained to impasse on its inclusion in the contract. Industry advancement funds, whether administered by' the union or the employer, are nonmandatory subjects of bargaining because they do not pertain to wages, hours, or terms or conditions of employment, and do not encompass any aspect of the employer-employee relationship.-15 If industry advancement funds are nonmandatory subjects for bargaining, a requirement for periodic financial report- ing to the Union of the financial state of the industry- administered advancement fund is a fortiori a nonmandato- ry subject for bargaining. It could be argued, of course, that, since the trust funds are contributed by the employers on the basis of so much for each hour worked by the unit employees, the economic failure of the trust fund might have a potentially detrimental effect on the employees. However, the potential for such effect is too remote and speculative to bring the financial reporting requirement into the context of a term or condition of employment, and therefore a mandatory subject of bargaining.16 I find and conclude, accordingly, that the financial reporting require-' ment of addendum 21 is a nonmandatory subject for bargaining and that, by bargaining to impasse on this demand for the prospective 1975-76 contract, Respondent violated Section 8(b)(3) of the Act. SASMI, the National Stabilization Agreement for the Sheet Metal Industry, is a trust fund administered by the International union and contributing employers. The funds administered by the trust are contributed by the employers, and the trust provides, inter alia, for the payment of benefits to sheet ' metal workers who are underemployed. The Association and its employer-members are not represented on the SASMI trust, and as found above the Union bargained to impasse on the demand that the Association and its members participate in the SASMI Plan. It is the General Counsel's contention, relying on the Board's decision in International Union of Operating Engi- neers, Local Union No. 12,17 that the SASMI plan is a nonmandatory subject for bargaining, because it would require the employers to contribute moneys into a trust which could be used to pay underemployment benefits to workers in the event of a strike or lockout. My review of the trust instrument, its amendments and the other descriptive literature in the record, reflects only silence on the issue of the payment of benefits to workers in the event of a strike or 15 Local 80, Sheet Metal Workers International Association, etc (Sheet Metal Empla) ers Association of Detrroit)161 NLRB 229,233 (1966), and cases cited therein at 6. 16 N.L.R.B. v. Local 264, laborers International Union of North America (J. J. Dalton and Owen Glover, d/b/a D & G Construction Co.) 529 F.2d 778 (C.A. 8, 1976), enfg. 216 NLRB 40 (1975). 17 International Union of Operating Engineers, Local Union No 12 (Associated General Contractors, etc.), 187 NLRB 430 (1970). SHEET METAL WORKERS, LOCAL 59 535 lockout. There is evidence in the record that Respondent assured the Association during the course of bargaining that the employers' participation in SASMI would not require that benefits be-paid to employees during a strike. According to the testimony of Menard, there was little or no discussion during negotiations about the payment of benefits in the event of a lockout, although this was one of the Association's objections to participation in SASMI. There is also some evidence adduced through the SASMI administrator, John Falvella, that he has advised interested parties that SASMI benefits are not payable under the trust to employees who have, been locked out by their employer. The Falvella evidence is, however, hardly diapositive of the issue on lockout. The trust instrument is silent on the issue and Valvella's testimony related in no way to the contents of the, instrument or its interpretation by the trustees, who have broad authority to amend or change the qualifications and to interpret the trust instrument. Whatever the disposition would be under the trust, Respondent did guarantee during negotiations that the Association's participation in SASMI would be on the condition that trust benefits would not be paid to striking employees. As to the payment of benefits in the event of a lockout, the evidence is hardly convincing pro or -con. Nevertheless, I find that a sufficient evidentiary question exists to necessitate the conclusion that the General Counsel has - not, 'sustained the burden of proof that the -SASMI plan is a nonmandatory subject for bargaining because the employer members of the Association would be obligated to undermine their bargaining position by the payment of benefits to employees during a lawful lockout. The Charging Party contends that the SASMI proposal is nonmandatory under the Board's decision in Local 694, United Brotherhood of Carpenters,18 and related cases. In Local 694 the Board found an 8(b)(3) violation where the unionbargained to impasse on a demand that the employer contribute funds to a trust maintained and administered by an association of which ,the employer was not a member. I find, however, that the Charging Party's reliance on Local 694 is misplaced by reason of the difference of the subject matter for bargaming.,The demand in Local 694 was that the employer contribute to an industry advancement fund, which, as found above, -is clearly a nonmandatory subject for bargaining. The same may not be said for the whole of the SASMI proposal, because the SASMI plan does provide underemployment -benefits to workers in the industry, albeit to also encompass employees outside the bargaining unit here involved, and, accordingly, the SASMI plan, does relate to wages, hours, or other terms or conditions of employment. The Charging Party raises another consideration which warrants coverage. There are two initial elements necessary to the consideration of this contention. The Association and its employer-members are not represented on the board of trustees for SASMI and under the trust agreement would be obligated to accept the board as constituted. Second, the whole context of this unfair labor practice proceeding hinges on Respondent Union's demand, and the Associa- tion's unwillingness, to agree to the standard form agree- 18 Local 694, United Brotherhood of Carpenters and Joiners of America AFL-CIO (Contractors & Suppliers Association of Rockland County, New York, Inc.), 181 NLRB 948 (1970). ment.'The record is not extensive on the issue but there is evidence of a close connection between the International Union, SMACNA, and its acting agent, the NJAB, on one hand, and the SASMI trust'and its board of trustees, on the other hand. It is clear that the -standard form of union agreement is the creature of the International Union, SMACNA, and the NJAB. The evidence is that the standard form agreement, with all of the third-party provisions which are at issue in this case, is also the quid pro quo for participation in the SASMI Plan. The record contains descriptive literature on the SASMI plan, including a brochure of questions and answers. A question posed; "Is the Standard Form of Union Agree- ment required under the SASMI Program?" The answer is "Yes. The SASMI plan requires the adoption of the entire Standard Form of Union Agreement, including Article X." The agreement and declaration of trust for SASMI defines "Employer" as an employer in the sheet metal industry who is presently, or in the future, operating under a collective-bargaining agreement with a local union requiring periodic contributions to SASMI. However, this definition -of employer in section 1 of article I of the declaration of trust is also attended by the proviso that: ... no employer may be eligible for initial or contin- ued participation in the National SASNH Fund unless it is a party to a Standard Form of Union Agreement... [Emphasis supplied.] Section 4 of article I of the declaration of trust defines "local union" eligible to participation in SASMI, and is similarly attended by the proviso that: - ... no local union may be eligible for initial or continued participation in the National SASMI Fund unless the Collective Bargaining Agreement to which it is a party or under which it is operating is the Standard Form of Union Agreement.... [Emphasis supplied.] Upon all of the foregoing, I find that SASMI does relate in part to wages, hours, and terms or conditions of employment in that it provides benefits to employees in the industry who-are underemployed. To this extent I find' that the SASMI plan is a mandatory, not a permissive, subject for bargaining. However, as a condition to participation in the SASMI plan, both the local unions and the employers are locked in to acceptance of the standard form of union agreement, which contains some provisions which are both nonmandatory subjects of bargaining, and which restricts the employers' right to select their own agent for the purpose of collective bargaining and the processing of grievances. The Association's agreement to meet Respon- dent's demand on the SASMI plan would have committed both the employers and the Union to continued adoption of the standard form of union agreement, with no opportunity to either party to vary the content or terms of prospective bargaining agreements. Accordingly, I find that the SASMI plan, in relevant part, is a nonmandatory subject for bargaining and, by bargaining to impasse-on the demand, the Union violated Section 8(b)(3) of the Act. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel and the Charging Party also argue that Respondent violated Section 8(b)(l)(B) of the Act by insisting that the 1975-76 bargaining agreement include sections 3, 4, and 8 of article X, and article XI. Respondent contends, to the contrary, that no violation of Section 8(b)(1)(B) has been proved because there is no evidence that the Union employed the proscribed means of restraint and coercion. More particularly, Respondent argues that, in the absence of evidence that it resorted to self-help by way of a strike, picketing, or threats of such economic action, there is no violation of Section 8(b)(1)(B). In support of its argument Respondent relies particularly on the Board's recent decision in Sheet Metal Workers Local 28,19 and prior cases cited in that decision. Sheet Metal Workers Local 28, hereinafter referred to as the Carrier case, involved alleged violations of Section 8(b)(4)(B) and Section 8(e) of the Act. In relevant part the facts in Carrier reveal that the union filed a grievance before a bipartite arbitration board to require the employer to conform with the terms of a subcontracting clause in the collective-bargaining agreement. On grounds that the subcontracting clause was violative of Section 8(e), the General Counsel - alleged that the union threatened, coerced, and restrained the employer within the meaning of Section 8(b)(4)(B) by filing the grievance to compel compliance with the subcontracting clause. The Board, relying on earlier decisions in Associated General Contrac- tors of California 20 and Kimstock,2i held that the contract provision, as applied, did not violate Section 8(e), and that the union did not violate Section 8(b)(1)(B) by filing a grievance to enforce its contractual' rights. Associated General Contractors of California and Kimstock are in accord on the facts and the law. I 'find that the Board's decision in Carrier and the two prior decisions cited therein are inapplicable to the factual situation in the instant case. Initially, it is important that Carrier and the other two cases involved alleged violations of Section 8(bX4)(B), not Section 8(b)(l)(B). The thrust of the Board's decisions was that the mere filing of a grievance before a bipartite arbitration panel to enforce a valid subcontracting clause is not a violation of Section 8(b)(4)(B). In the case at issue there is no bipartite arbitration panel, because of, the Association's nonmember- ship and nonparticipation in the organizations which are entitled to use the NJAB's procedures. More important, the underlying issue here is not the filing of a grievance before the NJAB, but the real issue is the Union's insistence, as found above to the point-of impasse in violation of Section 8(b)(3), that the Association and its employer-members agree to contractual provisions which would restrict them 19 Sheet Metal Workers International Association, Local 28 (Carrier Air Conditioning Company), 222 NLRB 727 (1976). 20 Southern California Pipe Trades District Council No. 16 (Associated General Contractors of California, Inc.), 207 NLRB 698 (1973). ^21 Southern California Pipe Trades District Council No. 16 (Kimstock Division, Tndair Industries, Inc.), 207 NLRB 711(1973) 22 Brotherhood of Teamsters and Auto Truck Drivers, Local No. 70 of Alameda County (Kockos Bros., Inc.), 183 NLRB 1330 (1970). 23 Waterfront Guard Association, Local 1852 (Amstar Corporation), 209 NLRB 513 (1974), 24 See also International Ladies' Garment Workers' Union (Slate Belt Apparel Contractors Assn.), 122 NLRB 1390, enforcement denied 274 F.2d 376 (C A. 3, 1960); Southern California Pipe Trades District Council No. 16 (Paddock Pools of California, etc.), 120 NLRB 249 (1958). in the selection of their representatives for the purposes of collective bargaining or the adjustment of grievances. There is no doubt that sections 3, 4, and 8 of article X, and article XI relate to collective bargaining and the processing of grievances, as they pertain both to the process of negotiat- ing a collective-bargaining agreement and the processes of adjusting contractual and jurisdictional grievances. It is Respondent's insistence on articles X and XI, and the tactics used to enforce that insistence, which are the crux of the allegation of restraint and coercion, and the result was to force the issues to the NJAB for determination. Respondent's premise that restraint and coercion within the meaning of Section 8(b)(l)(B) cannot be found in the absence of economic action, or threats thereof, does not equate with established law. In Kockos Bros., Inc., 22 the union refused to bargain with the employers because they had selected a former union agent as their bargaining representative. The Board found an 8(b)(1)(B) violation, even though there was no strike or threat of a strike. In Amstar Corporation23 the Board found an 8(b)(1XB) violation where the union, without striking or threatening to strike, sought to enforce an arbitration award forcing nonemployees of the employer to join the union pursuant to a contractual union-security provision.24 I find in conclusion that Respondent restrained and coerced the Association and its employer-members in violation of Section 8(b)(l)(B). The Union entered negotia- tions with inflexible demands that the Association adopt the standard form of union agreement, including articles X and XI. At no time during the course of negotiations did the Union retreat from this insistence, and when the Associa- tion attempted to bargain on these issues in negotiations, the Union declared a deadlock and invoked the procedures of section 8 of article X, realizing on the basis of past experience that the NJAB would decide the dispute by requiring the employers to adopt - the standard form of union agreement 25 The Respondent's insistence on articles X and XI, and the tactics employed to insure inclusion of those articles in the new agreement, was not a "mere attempt at persuasion in a free market place of ideas . . 1126 The whole press of the Respondent's conduct was to force their insistence to a point where a declaration of deadlock could be sustained, and the NJAB procedures could be invoked.27 There remains for consideration the allegation that Respondent further violated Section 8(b)(3) of the Act by bargaining with a fixed mind and position with respect to articles X, XI, and XIII, addendum 21, and the demand for the Association's participation in the SASMI plan. The findings above, particularly with regard to the Union's 25 In the light of these findings, and particularly the Union's deferral to the NJAB, I find inapposite the Board's decision in Local 80, Sheet Metal Workers International Association (Sheet Metal Employers Association of Detroit), 161 NLRB 229,235 (1966). 26 International Ladies' Garment Workers, supra, citing Paddock Pools, Inc. 27 The Respondent devoted a substantial portion of its brief to the argument that it':did not violate Sec. 8(bXIXA) by filing a, Sec. 301 action in Federal district court to compel the Association and its member-employers to comply with the terms of the NJAB award. The General Counsel has neither alleged nor argued such a violation, and the issue is not before me for decision. SHEET METAL WORKERS, LOCAL 59 537 bargaining tactics and the impasse issue, negate any necessity for a prolonged exposition of the facts in support of this allegation. Respondent entered negotiations with a fixed and determined intent to arrive at a collective- bargaining agreement which would continue the effective- ness of all the provisions of the standard form of union Agreement, plus the employers' capitulation to the SASMI demand. The Union did not alter this position in even the most minor respect during the whole course of the negotia- tions. The concessions made by the Union, if any, related only to minor and minuscule matters, and it replied to the Association's counterproposals with the declaration that the negotiations were deadlocked. As found above, the whole thrust of Respondent's bargaining tactics was to avoid negotiations and to invoke the procedures of section 8 of article X at the first appropriate moment. In all respects Respondent evinced a fixed and inflexible position, and the facts clearly support an 8(b)(3) fmding.28 The foregoing finding applies to the Union's demands with respect to articles X and XI, addendum 21, and the demand that the Association participate in the SASMI plan. Article XIII, however, requires some additional consideration. In relevant part, section 2 of article XIII restricts the effective term of the bargaining agreement, and the conditions for expiration and reopening, by permitting either party to the contract to reopen the agreement for further negotiations when any amendment to the standard form of union agreement is adopted by the National Joint Labor Relations adjustment committee. The General Counsel has not alleged that section 2 of article XIII is a nonmandatory subject of bargaining. He has similarly not alleged that the Union bargained the issue to impasse, or that the Union restrained and coerced the employers in the selection of their bargaining representative. All that is alleged is that Respondent bargained on the issue from a fixed and inflexible position. The issue of article XIII, although not a subject for any great discussion in negotiations, was encompassed within the Association's proposals to amend the contract by deleting or altering all third party provisions. Article XIII was also contained within Respondent's adamant demand that the only agreeable contract was the standard form of union agreement. Encompassed within this framework, and in view of my findings above, there is ample evidence to support a finding-.that Respondent bargained on this issue with a fixed and inflexible position, to the same extent it did so on the other provisions here at issue. Notwithstanding that article XIII is uninvolved in any other allegations of the complaint, I find that the General Counsel has proved the 8(b)(3) violation as to the Union's fixed and inflexible position. VI. THE REMEDY Having found that Respondent has engaged in violations of Section 8(b)(1)(A) and 8(b)(3) of the Act, I shall recommend that it cease and desist therefrom, and take certain affirmative action to remedy the unfair labor practices and effectuate the purposes of the Act. The General Counsel has requested that Respondent be affirmatively ordered to bargain in good faith, and that it also be ordered to cease enforcement of section 8 of article X insofar as it permits the NJAB to determine the terms of the collective-bargaining agreement between Respondent and the Association, including terms on issues of nonman- datory subjects of bargaining. I find merit in the General Counsel's request, but not limited to nonmandatory sub- jects for bargaining. In granting the request I am not unmindful that the NJAB procedures of section 8 of article X, which culminat- ed in the award of the NJAB on July 28, 1975, were an agreed-upon condition of the 1974-75 contract to which the Association had bound its employer-members. This, how- ever, was also a condition in the Board decision and remedy in Columbus Printing Pressmen, and the respondent union there was ordered to cease insisting that the nonmandatory subject of bargaining be arbitrated. Neither am I unmindful that an action under Section 301 to enforce the NJAB award is pending in the United States District Court for District of Delaware. Nevertheless, upon the whole of the record and my findings above, the unfair labor practices found herein can only be remedied by a return to the status quo'ante, which requires that Respondent cease giving effect or attempting to enforce the NJAB award of July 28, 1975. Because of Respondent's unfair labor practices the 1975 negotiations did not culminate in a meeting of the minds of the parties on any of the terms of a collective-bargaining agreement. This conclusion extends to monetary and all other propo- sals, as well as it relates to Respondent's demands on the nonmandatory contractual provisions here in issue. Not- withstanding the Union brought about the impasse through its unfair labor practices, the obligation to bargain contin- ues after impasse, and the unfair labor practices found here can only be remedied by a return to the bargaining table for good-faith bargaining on all proposals in issue at the time the impasse occurred. CONCLUSIONS OF LAW 1. The Association, Employers Association of Roofers and Sheet Metal Workers, Inc.; and its member-employers, are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent, Sheet Metal Workers International Association, Local Union No. 59, is a labor organization within the meaning of Section 2(5) of the Act. - 3. Respondent is the statutory bargaining representa- tive of the employees of the employer members of the Association in an appropriate collective-bargaining unit consisting of all journeymen and apprentice sheet metal workers, excluding supervisors as defined in the National Labor Relations Act. 4. By insisting to the point of impasse as a condition of a new collective-bargaining agreement with the Associa- tion, on the continuation of the provisions contained in sections 3, 4, and 8 of article X, article XI, and addendum 21 of the collective-bargaining agreement which expired on 28 Local Union No. 103, International Association of Bridge, Structural and Ornamental Iron Workers AFL-CIO (Associated General Contractors of America, Evansville Chapter, Inc), 190 NLRB 741, 742 (1971). 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD April 30, 1975, Respondent engaged in unfair labor practices within the meaning of Section 8(bX3) of the Act. 5. By insisting to a point of impasse as a condition of a new collective-bargaining agreement with the Association, that the Association and its member-employers agree to, participate in and contribute to the Stabilization Agree- ment for the Sheet Metal Industry (SASMI), Respondent engaged in unfair labor practices within the meaning of Section 8(bX3) of the Act. 6. By entering into and continuing negotiations with a fixed mind and position not to arrive at a collective- bargaining agreement without inclusion of the provisions contained in articles X, XI, XIII , and addendum 21 of the bargaining agreement which expired on April 30 , 1975; and by entering into and continuing negotiations with a fixed mind and position not to arrive at a collective-bargaining agreement without inclusion of a proposal that the Associa- tion and its employer-members participate in and contrib- ute funds to SASMI, Respondent has engaged in conduct within the meaning of Section 8 (b)(3) of the Act. 7. By coercing and restraining the Association and its employer-members in the selection of their representatives for the purposes of collective 'bargaining and the adjust- ment of grievances , Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(1)(B) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding , and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER29 The Respondent, Sheet Metal Workers International Association, Local Union No. 59, Wilmington, Delaware, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Refusing to bargain in -good faith with Employers Association of Roofers and Sheet Metal Workers, Inc., by insisting to a point of impasse, as a condition of reaching a new collective-bargaining agreement with the Association, on a continuation of the nonmandatory subjects of bargain- ing contained in sections 3, 4, and 8 of article X, article XI, and addendum 21 of the bargaining agreement which expired on April 30, J975. -(b) Refusing to bargain in good faith with the Employers Association of Roofers and Sheet Metal Workers , Inc., by insisting to a point of impasse, as a condition of a new collective-bargaining agreement with the Association, on a nonmandatory subject of bargaining requiring the Associa- tion and its member-employers to participate in and contribute funds to the Stabilization Agreement for the Sheet Metal Industry (SASMI). (c) Refusing to bargain in good faith with the Employers Association of Roofers and Sheet Metal Workers, Inc., by entering into and continuing negotiations with a fixed mind and position not to arrive at a collective-bargaining agreement without the inclusion of articles X, XI, and XIII and addendum 21 of the collective-bargaining agreement which expired on April 30, 1975. (d) Refusing to bargain in good faith with the Employers Association of Roofers and Sheet Metal Workers, Inc., by entering into negotiations with a fixed mind and position not to arrive at a collective-bargaining agreement without inclusion of the proposal that the Association and its employer-members participate in and contribute funds to SASMI. (e) Restraining or coercing the Employers Association of Roofers and Sheet Metal Workers, Inc., and its employer- members, in the selection of their representatives for the purposes of collective bargaining and the adjustment of grievances by insisting on the continuation in a new bargaining agreement of the provisions contained in sections 3, 4, and 8 of article X and article XI of the collective-bargaining agreement which expired on April 30, 1975. (f) Insisting on compliance with, or attempting to enforce, the award of the National Joint Adjustment Board of July 28, 1975, insofar as that award determines the terms and conditions of anew collective-bargaining-agreement be- tween Respondent Union and the Employers Association of Roofers and Sheet Metal Workers, Inc. (g) In any like or related manner restraining or coercing the Employers Association of Roofers and Sheet Metal Workers, Inc., or its employer-members in the selection of their bargaining representatives for the purposes of collec- tive bargaining or the adjustment of grievances ; or in any like or related manner refusing to bargain collectively with the Association by insisting upon the inclusion in the collective-bargaining agreement of provisions or proposals not related to wages, hours, and other terms or conditions of employment. 2. Take the following affirmative action to remedy the unfair labor practices found herein and to effectuate the policies of the Act: (a) Bargain with the Employers Association of Roofers and Sheet Metal Workers, Inc., acting on behalf of its employer-members, concerning wages, hours, and other terms and conditions of employment for employees in the following appropriate bargaining unit. All journeymen and apprentice sheet metal workers employed by the employer-members of the Employers Association of Roofers and Sheet Metal Workers, Inc., excluding supervisors as defined in the National Labor Relations Act. (b) Notify the Employers Association of Roofers and Sheet Metal Workers, Inc., and its employer-members, that Respondent will not insist to impasse , as a condition of a new collective-bargaining agreement, on continuation of the provisions of sections 3, 4, and 8 of article X, article XI, and addendum 21 of the bargaining agreement which expired on April 30, 1975, and that Respondent Union will not insist on the inclusion in the new contract that the 29 In the event no exceptions are filed as provided by Sec. 102.46 of the of the Rules and Regulations, be adopted by the Board and become its Rules and Regulations of the National Labor Relations Board , the findings, findings, conclusions, and Order, and all objections thereto shall be deemed conclusions, and recommended Order herein shall, as provided in Sec 102.48 waived for all purposes. SHEET METAL WORKERS, LOCAL 59 539 Association and its employer-members participate in and contribute funds to SASMI. (c) Post at Respondent's offices and meeting halls, copies of the attached notice marked "Appendix." 30 Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by the Respondent's representatives, shall be posted immediately on receipt thereof, and shall be maintained by Respondent for 60 consecutive days -thereafter, in conspicuous places, includ- ing all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by other material. (d) Sign and mail sufficient copies of said notice to the aforesaid Regional Director for posting by the Employers Association of Roofers and Sheet Metal Workers, Inc., and its employer-members, if they are willing, said notices to be posted in all locations where notices to employees are customarily posted. (e) -Notify the Regional Director for Region 4, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith: 30 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shalLread "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the - United States Government WE WILL NOT refuse to bargain in good faith with the Employers Association of Roofers and Sheet Metal Workers, Inc., by insisting to a point of impasse, as a condition of reaching a new collective-bargaining agreement, on the continuation of the nonmandatory subjects for bargaining contained in sections 3, 4, and 8 of article X, article XI, and addendum 21 of the bargaining agreement which, expired on April 30, 1975. WE WILL NOT refuse to bargain in good faith with the Employers Association of Roofers and Sheet Metal Workers, Inc., by insisting to a point of impasse, as_ a condition of a new collective agreement, on a nonman- datory subject of bargaining requiring the Association and-its employer-members to participate in and contrib- ute funds to the Stabilization Agreement for the Sheet Metal Industry. WE WILL NOT refuse to bargain in good faith with the Employers Association of Roofers and Sheet Metal Workers, Inc., by entering into and continuing negotia- tions with a fixed mind and position not to arrive at a collective-bargaining agreement without the inclusion of articles X, XI, and XIII and addendum 21 of the collective-bargaining agreement which expired on April 30, 1975, or without the inclusion of the proposal that the Association and its member-employers agree to participate in and contribute funds to the Stabilization Agreement for the Sheet Metal Industry. WE WILL NOT restrain or coerce the Employers Association of Roofers and Sheet Metal Workers, Inc., and its employer-members, in the selection of their representatives for the purposes of collective bargaining and the adjustment of grievances by insisting on the continuation in a new bargaining agreement of the provisions of sections 3, 4, and 8 of article X and article XI of the collective-bargaining agreement which ex- pired on April 30, 1975. WE WILL NOT insist on compliance with or attempt to enforce the award of the National Joint Adjustment Board of July 28, 1975, insofar as that award determines the terms and conditions of a new collective-bargaining agreement between Sheet Metal Workers International Association, Local Union No. 59, and the Employers Association of Roofers and Sheet Metal Workers, Inc. WE WILL NOT in any like or related manner restrain or coerce the Employers Association of Roofers and Sheet Metal Workers, Inc., or its employer-members, in the selection of their bargaining representatives for the purposes of collective bargaining and the adjustment of grievances, or in any like or related manner refuse to bargain with the Association by insisting on inclusion in the collective-bargaining agreement of provisions or proposals not related to wages, hours, or other terms and conditions of employment. WE WILL bargain collectively with the Employers Association of Roofers and Sheet Metal Workers, Inc., acting on behalf of its employer-members, concerning wages, hours, and other terms and conditions of employment for employees in the following appropriate bargaining unit: All journeymen and apprentice sheet metal work- ers employed by the employer-members of the Employers Association of Roofers and Sheet Metal Workers, Inc.,- excluding supervisors as defined in the National Labor Relations Act. SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL UNION No. 59