Sheet Metal Workers, Local 38

SHEET METAL WORKERS, LOCAL 38 Sheet Metal Workers International Association, Local Union No. 38 and Elmsford Sheet Metal Works, Inc. Case 2-CB-6415 August 29, 1977 DECISION AND ORDER Upon charges duly filed on September 23, 1976, by Elmsford Sheet Metal Works, Inc., the Regional Director for Region 2 of the National Labor Relations Board, acting on behalf of the General Counsel of the Board, on November 5, 1976, issued a complaint alleging that the Respondent Union, Sheet Metal Workers International Association, Local Union No. 38 (hereafter Local 38), violated Section 8(b)(3) and Section 8(b)(1)(B) of the National Labor Relations Act, as amended (29 U.S.C. § 151, et seq.). The Respondent filed an answer to the complaint in which it admitted certain allegations of the com- plaint and denied others, including all those charging it with the commission of any unfair labor practices. On January 12, 1977, the General Counsel, the Charging Party, and the Respondent entered into a stipulation in which they agreed to waive a hearing before an Administrative Law Judge, the issuance of an Administrative Law Judge's Decision, and the presentation of any evidence other than that con- tained in the stipulation and the exhibits there referred to. By order dated February 16, 1977, the Board approved the stipulation and transferred the proceeding to the Board. Thereafter the General Counsel and the Respondent filed briefs with the Board. The Board has considered the entire record in this case, including the parties' briefs, and makes the following findings and conclusions. FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER Elmsford Sheet Metal Works, Inc. (hereafter Elmsford), has been at all times material a corpora- tion duly organized under the laws of the State of New York with its principal place of business at Peekskill, New York, where it has been engaged as a contractor in the building and construction industry providing sheet metal contracting services and related services. Elmsford annually performs services valued in excess of $500,000, of which services valued in excess of $50,000 were performed in and for various enterprises outside the State of New York. Accordingly, in agreement with the stipulation of the parties, we find that the Company has been at all I Art. VIIl. Secs. 12(b) and 13(b). See Appendix B, attached hereto, for full text. 231 NLRB No. 101 times material an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. It will therefore effectuate the policies of the Act to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATION It is stipulated, and we find, that the Respondent is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICES Since about 1952 until in or about September 1975 Elmsford was a member of the Sheet Metal and Roofers Employer's Association of Southeastern New York, Inc. (hereinafter the Association), an association which bargained collectively with the Respondent for the member's employees in a unit consisting of all journeymen and apprentice sheet metal employees. On June 30, 1975, Elmsford, by Vincent Gervasi, its president, sent a letter tendering its resignation from the Association. The Association rejected the resignation because negotiations were not concluded at that time. On July 1, 1975, the Association entered into a collective-bargaining agreement with Local 38, effective until June 30, 1976. The agreement contained provisions which required the employer to contribute to national and local industry funds (hereafter industry funds).' It also contained a provision requiring any dispute arising out of the failure to renegotiate a renewal of the agreement be submitted to local and National Joint Adjustment Boards for a final and binding decision (hereafter interest arbitration).2 The local and National Joint Adjustment Boards consisted of an equal number of representatives of the local and international union and the local and national employer's associations. On September 3, 1975, Elmsford sent a letter of resignation to the Association which was accepted, and on September 18, 1975, Elmsford signed a separate agreement with Local 38 effective until June 30, 1976. The September 18 agreement contained provisions identical to those in the Association agreement, including article VIII, sections 12(b) and 13(b), and article X, section 8. On March 26, 1976, Elmsford sent a letter to Respondent indicating the desire to renegotiate the present contract and stating that among the items it would like to negotiate were the elimination of the provisions for industry funds and interest arbitration. On April 26, 1976, Respondent acknowledged receipt of Elmsford's proposals and made counterproposals. 2 Art. X, sec. 8. See Appendix B. attached hereto, for full text. 699 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent also notified the New York State Mediation Board and the Federal Mediation and Conciliation Service of the forthcoming negotiations. Elmsford and Local 38 held negotiation sessions on May 11, 1976, and on June 7, 1976. At both meetings Elmsford proposed the elimination of the provisions for industry funds and interest arbitration. Local 38 rejected these proposals at each meeting. On July 27, 1976, the Association and Local 38 concluded a 2-year agreement running from July 1, 1976, until June 30, 1978. This agreement contained provisions for industry funds and interest arbitration which were identical to those in its July 1, 1975, agreement. When Elmsford and Local 38 met for a third negotiating session on August 30, 1976, Local 38 stated that it wanted Elmsford to agree to the terms of the Association agreement. Elmsford res- ponded that it was not willing to agree to the provisions for industry funds and interest arbitration. Elmsford and Local 38 reasserted the same positions in their meeting on September 7, 1976, and Local 38 stated that they were at a deadlock. On September 10, 1976, Local 38 filed an applica- tion for a hearing before the National Joint Adjust- ment Board (hereafter NJAB) under article X of its 1975-76 contract with Elmsford. The NJAB held a hearing on November 9, 1976. Local 38 was represented by its president and business manager, Charles Hertel. Elmsford did not appear. On Novem- ber 11, 1976, the NJAB issued a decision finding that Elmsford was required to execute a contract with provisions requiring interest arbitration and industry funds. On November 24, 1976, Local 38 informed Elms- ford by letter that, due to Elmsford's refusal to abide by the decision of the NJAB, they were "no longer in signed agreement." On November 26, 1976, Local 38 sent a letter to Elmsford's employees informing them that they were not to report for work on December 1, 1976. However, Local 38 called off the strike action on December 1, 1976, and the parties agreed to execute a collective-bargaining agreement without the disputed provisions. In a separate letter, the :' N L.R.B. v. Wooster Division of Borg-Warner Corporation, 356 U.S. 342 ( 1958). 4 Detroit Resilient Floor Decorators Local Union No. 2265 of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Mill Floor Covering. Inc.), 136 NLRB 769, 771, 772 (1962), enfd. 317 F.2d 269 (C.A. 6, 1963). With regard to industry funds, the Board has held that they are outside the employment relationship, since they concern themselves "with the relationship of employers to one another or, like advertising, with the relationship of an employer to the consuming public." As we have said, while we intend to keep pace, through interpretation of the general terms embodied in Sec. 8(d), with changing conditions "to insure that bargaining for new forms of 'wages' or for hitherto undeveloped terms or conditions of employment is not restricted," we are not empowered to lend our "sanctions of enforcement either to encourage or to discourage experimentation, through the bargaining process, in areas which are outside the employment relationship altogether, or which, at best, touch it only peripherally." Of parties agreed to be bound by the final decision of the National Labor Relations Board on the instant complaint, with the result that, should the complaint be dismissed, the contract would be amended to include the provisions. The General Counsel contends that interest arbi- tration and industry funds are nonmandatory sub- jects of bargaining and that, by insisting upon these subjects to impasse, Respondent violated Section 8(b)(3) of the Act. The General Counsel further contends that by its insistence on the inclusion of the interest arbitration provision in the prospective bargaining agreement and by threatening to strike over the inclusion of the disputed provisions, Respondent violated Section 8(b)(1)(B) of the Act. The Respondent Union, on the contrary, contends that it did not insist on the inclusion of the disputed provisions to impasse, but merely acted in accord- ance with its existing contractual obligations by submitting the unresolved issues to the NJAB under article X, section 8, of the September 18, 1975, contract with Elmsford. The Respondent further contends that, even if it did insist on the disputed provisions to the point of impasse, it did not thereby violate the Act because the provisions are mandatory subjects of bargaining. For the reasons set forth below, we find that Respondent violated Section 8(b)(3) of the Act by insisting on the inclusion of provisions for interest arbitration and industry funds in the bargaining agreement as a precondition for signing the agree- ment. The mutual obligation of employers and unions to bargain in good faith as defined in Section 8(d) of the Act includes the requirement that they "confer in good faith with respect to wages, hours, and other terms and conditions of employment." A provision which does not relate to these matters is a nonman- datory subject of bargaining and no party may insist upon its inclusion in the bargaining agreement to the point of impasse.3 The Board has held that industry funds4 and interest arbitration clauses 5 are nonman- datory subjects of bargaining. Here, Respondent's course, our finding here does not imply that parties are not free to include provisions of this type in collective-bargaining agreements-only that there is no obligation that either party bargain thereon. The Columbus Printing Pressmen d Assistants' Union No. 252, Subordi- nate to IP & GCU (The R W. Page Corporation), 219 NLRB 268 (1975); Greensboro Printing Pressmen and Assistants' Union No. 319 (The Greensboro News Company), 222 NLRB 893 (1976); Massachusetts Nurses Association (Lawrence General Hospital), 225 NLRB 678 (1976). We note that every circuit court which has considered our view as to interest arbitration clauses has affirmed the Board's decisions and enforced its orders. N.L.R.B. v. Massachusetts Nurses Association, 557 F.2d 894 (C.A. 1, 1977); N. LR.B. v. The Columbus Printing Pressmen and Assistants' Union No. 252, 543 F.2d 1161, 1164-66. (C.A. 5, 1976); N.LR.B. v. Greensboro Printing Pressmen and Assistants' Union No. 319, 549 F.2d 308 (C.A. 4, 1977). In the words of the First Circuit, "'w }e agree with the conclusion of the Fifth and Fourth Circuits that an interest arbitration provision bears only a remote relation, if any, to wages, hours or other terms or conditions of 700 SHEET METAL WORKERS, LOCAL 38 demand for both of these subjects resulted in the issuance of an NJAB decision in which Elmsford refused to participate, and subsequently refused to recognize, the Respondent's assertion that it was no longer in signed agreement with Elmsford because of Elmsford's refusal to recognize the NJAB decision, and Respondent's threat to strike if Elmsford did not agree to the NJAB decision requiring the inclusion of the disputed provisions in the new bargaining agreement. In these circumstances, we find that Respondent insisted on the nonmandatory subjects of industry funds and interest arbitration to impasse and thereby violated Section 8(b)(3) of the Act. We further find that Respondent's conduct consti- tuted a violation of Section 8(b)(l)(B) of the Act. In a previous case involving this same International, the Board found that the Union's insistence on the inclusion of an interest arbitration clause identical to that in the instant case restrained and coerced the employer in its choice of a representative for the purposes of collective bargaining in violation of Section 8(b)(1)(B).6 The circumstances presently before us closely parallel those of Sheet Metal Workers Association, Local Union No. 59, supra, and, for the reasons set forth therein, we conclude that Respondent violated Section 8(b)(1)(B) by its insi- stence to impasse on the inclusion of an interest arbitration clause in its prospective bargaining agreement with Elmsford. Respondent's threat to strike as a means to compel Elmsford to accept interest arbitration in the future bargaining agree- ment is further support for our finding that Respon- dent restrained and coerced Elmsford in the selection of its own bargaining representative. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent as set forth above, occurring in connection with the Employer's opera- tions, have a close, intimate, and substantial relation- ship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in violations of Section 8(b)(3) and Section 8(b)(1)(B) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Since the Respondent has violated Section 8(b)(3) of the Act employment and. accordingly. is not a mandatory subject of bargaining." ' Sheet Metal Workers Internarional Associalion. Local Union No. 59, 227 NLRB 520 (1976). by insisting to a point of impasse for the inclusion in a contract of nonmandatory subjects of bargaining, and since the obligation to bargain continues after impasse, the further insistence that the nonmandato- ry subjects of bargaining be arbitrated is, in effect, a continuation of the same violative conduct. We therefore order that the Respondent bargain in good faith and cease and desist from such insistence for arbitration of the nonmandatory subjects of bargain- ing. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Sheet Metal Workers International Association, Local Union No. 38, Peekskill, New York, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Refusing to bargain in good faith with Elmsford Sheet Metal Works, Inc., by insisting to a point of impasse, as a condition of reaching a new collective- bargaining agreement with Elmsford, on a continua- tion of the nonmandatory subjects of bargaining contained in article X, section 8 (interest arbitration) of the bargaining agreement which expired on June 30, 1976. (b) Refusing to bargain in good faith with Elmsford Sheet Metal Works, Inc., by insisting to a point of impasse, as a condition of a new collective-bargain- ing agreement with Elmsford, on a nonmandatory subject of bargaining contained in article VIII, sections 12(b) and 13(b) (industry funds), of the bargaining agreement which expired on June 30, 1976. (c) Refusing to bargain in good faith with Elmsford Sheet Metal Works, 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 article VIII, sections 12(b) and 13(b), and article X, section 8, of the collective-bargaining agreement which expired on June 30, 1976. (d) Restraining or coercing Elmsford Sheet Metal Works, Inc., in the selection of their representatives for the purposes of collective bargaining by insisting on the continuation in a new bargaining agreement of the provisions contained in article X, section 8, of the collective-bargaining agreement which expired- on June 30, 1976. (e) Insisting on compliance with, or attempting to enforce, the award of the National Joint Adjustment Board of November 11, 1976, including the threat to 701 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strike, insofar as that award determines the terms and conditions of a new collective-bargaining agree- ment between the Respondent Union and Elmsford Sheet Metal Works, Inc. (f) In any like or related manner restraining or coercing Elmsford Sheet Metal Works, Inc., in the selection of their bargaining representatives for the purposes of collective bargaining, or in any like or related manner refusing to bargain collectively with Elmsford 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 reme- dy the unfair labor practices found herein and to effectuate the policies of the Act: (a) Bargain with Elmsford Sheet Metal Works, Inc., concerning the 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 Elmsford Sheet Metal Works, Inc., excluding supervisors as defined in the National Labor Relations Act. (b) Notify Elmsford Sheet Metal Works, Inc., that the Respondent Union will not insist to impasse, as a condition of a new collective-bargaining agreement, on continuation of the provisions of article X, section 8, and article VIII, sections 12(b) and 13(b), of the bargaining agreement which expired on June 30, 1976. (c) Post at Respondent Union's offices and meeting halls, copies of the attached notice marked "Appen- dix A." 7 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by the Respondent Union's representative, shall be posted by it immediately upon receipt thereof, and be maintained by the Respondent Union for 60 consecutive days thereafter, in conspic- uous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (d) Sign and mail sufficient copies of said notice to the aforesaid Regional Director for posting by Elmsford Sheet Metal Works, Inc., if it is willing, said notice to be posted in all locations where notices to employees are customarily posted. (e) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Order, ' In the event that this 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" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." what steps the Respondent Union has taken to comply herewith. CHAIRMAN FANNING, dissenting: I do not find this case significantly different from Sheet Metal Workers International Association, Local Union No. 59, 227 NLRB 520. Accordingly, for the reasons set forth in my opinion in that case, I would dismiss the complaint here. MEMBER MURPHY, dissenting: Contrary to my colleagues, I would find that the Sheet Metal Workers did not violate Section 8(b)(3) and (1)(B) and would dismiss the complaint in its entirety. With respect to the alleged violations of Section 8(b)(3), I would find that the provisions for interest arbitration and industry funds which the Respondent sought to include are mandatory subjects of bargain- ing and Respondent was therefore free to insist to impasse upon their inclusion. In this regard, I reemphasize and reassert my views on the mandatory nature of interest arbitration which are set forth at length in my dissenting opinion in The Columbus Printing Pressmen and Assistants' Union No. 252, Subordinate to IP & GCU (The R. W. Page Corpora- tion), 219 NLRB 268 (1975). Any issue which settles an aspect of the relation- ship between the employer and employees8 concern- ing wages, hours, working conditions, or other terms or conditions of employment is a mandatory subject for bargaining. That an interest arbitration provision does so is beyond dispute, for by its very nature it provides a peaceful judicial-type procedure in place of economic warfare as a means of settling any such aspect of the employment relationship upon which there may be disagreement. Its provision for the continuing effectiveness of established contract terms throughout the negotiation period for renewal thereof and the assurance of continued employment to workers and uninterrupted production to the employer are the very essence of the bargaining relationship and the protection of employer-employ- ee interests. Further, the subject matter of bargaining must reflect the changing conditions of industrial society and the changing needs and responsibilities of labor and management. I am persuaded that interest arbitration does reflect such conditions and advances public policy favoring the voluntary resolu- tion of disputes and the avoidance of economic warfare.9 In my view, it clearly is the collective- bargaining tool of the future, and I am surprised by 8 Allied Chemical & Alkali Workers of America, Local Union No. I v. Pittsburgh Plate Glass Co., Chemical Division, et al, 404 U.S. 157, 178 (1971). 9 See Winston-Salem Printing Pressmen and Assistants' Union v. Piedmont 702 SHEET METAL WORKERS, LOCAL 38 the unwillingness of my colleagues to find it a mandatory subject of bargaining. In the case of industry funds, I am, of course, aware that the Board has consistently held that such funds are nonmandatory subjects. In my opinion this is also an incorrect view and is inconsistent with other of the Board's holdings in the area of mandatory subjects of bargaining. The stated pur- pose of the industry funds in the instant case is "to promote programs of industry education, training, negotiation and administration of collective bargain- ing agreements, research and promotion, such programs serving to expand the market for the services of the sheet metal industry, improve the technical and business skills of employers, stabilize and improve Employer-Union relations, and pro- mote, support, and improve the employment oppor- tunities for employees." '° As the Board has stated in the past, such an industry fund can affect employees' opportunities in the long run." Nevertheless the Board has erroneously held here that such funds are nonmandatory subjects of bargaining, reasoning that to make a matter a mandatory subject of bargaining simply because it might conceivably enhance the prospects of the industry would transform bargaining over the compensation, hours, and employment conditions of employees into a debate over policy issues.' 2 The flaw in this logic is that industry funds are not ambiguous matters which have only an arguable connection with the enhancement of the industry. Rather, the sole purpose of the funds is to promote the industry, and thereby improve employment opportunities for unit employees through increased business opportunities for the employer. Further- more, no one can question that education, research, and promotion are rationally related to this goal. Whether or not these means actually succeed is not and never has been a measure of whether a subject is one upon which the parties are compelled to bargain. Publishing Company, of Winston-Salem) 393 F.2d 221 (C.A. 4, 1968); Aikens v. Abel. 373 F.Supp. 425 (D.C.Pa., 1974); and Chattanooga Mailers' Union, Local No. 92 v. The Chattanooga News-Free Press Compane, 524 F.2d 1305 (C.A. 6, 1975). A provision which contributes to the avoidance of economic warfare between labor and management is, in my view, directly linked to the conditions of employment and is therefore a mandatory subject of bargaining. I am aware, however, that the First, Fourth, and Fifth Circuits have affirmed the Board's finding that interest arbitration provisions are nonmandatory subjects of bargaining. N.LR.B. v. Massachusetts Nurses Association, 557 F.2d 894 (C.A. 1, 1977); N.L.R.B. v. Greensboro Pnnring Pressmen and Assistants' Union No. 319, 549 F.2d 308 (C.A. 4. 1977); N.LR.B. v. The Columbus Printing Pressmen and Assistants' Union No. 252, 543 F.2d 1161 (C.A. 5, 1976). In my opinion, these decisions fail to recognize that interest arbitration promotes the public policy favoring avoidance of industrial strife, and should not be followed. to Art. VIII, secs. 12(a) and 13(a). This is consistent with the types of objectives sought by most such funds. n Detroit Resilient Floor Decorators Local Union No. 2265 of the United Brotherhood of Carpenters and Joiners of America, AFL CIO (Mill Floor Covering, Inc.), 136 NLRB 769(1962). enfd. 317 F.2d 269 (C.A. 6, 1963). 12 Detroit Resilient Floor Decorators Local Union No. 2265. supra. Many provisions in contracts dealing with mandato- ry subjects have only speculative value. Thus, the future value of the stock in a stock purchase plan is uncertain. Similarly, the future value to employees of the employer's contributions under a pension plan is dependent on the continued existence of the employ- er, the survival of the employees to retirement age, and the inflationary trend of the economy. Yet the Board has long held that these items are mandatory subjects of bargaining affecting employees' potential income. 13 A consistent approach requires that industry funds also be found mandatory subjects since they equally affect unit employees' potential income by attempt- ing to assure the continued existence of business for the employer and the resulting job opportunities for unit employees. 14 I would so find. With respect to the alleged violation of Section 8(b)(l)(B), I find that an interest arbitration provi- sion does not restrain or coerce an employer in the selection of its own bargaining representatives. There is nothing inherently unlawful about the voluntary agreement to preclude bargaining of the parties themselves as to the final resolution of disputed matters on which impasse has been reached. Here, Elmsford voluntarily agreed to the interest arbitra- tion provision in its September 18, 1975, agreement with Local 38, even though it was aware of the fact that it was not represented on the National Joint Adjustment Board. Since interest arbitration is, in my view, a mandatory subject of bargaining, I find that Respondent's insistence on it to the point of impasse, and Respondent's threat to strike to attain Elmsford's acceptance of the NJAB decision requir- ing inclusion of interest arbitration and industry fund provisions in the new bargaining agreement, did not constitute a violation of Section 8(b)(I XB). Accordingly, I dissent from the findings that the Respondent violated Section 8(b)(3) and (I)(B). 1: Richfield Oil Corporation. 10 NLRB 356 (1954), enfd. 231 F.2d 717 (C.A.D.C., 1956) (stock purchase plans); Inland Steel Company, 77 NLRB I (1948), enfd. 170 F.2d 247 (C.A. 7, 1948). cert. denied 336 U.S. 960 (1948) (pension plans). 1' See my dissenting opinion in Sheet Metal Workers International Association, Local Union No. 59 (Employers Association of Roofers and Sheet Metal Workers, Inc.), 227 NLRB 520 (1976). APPENDIX A 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 Elmsford Sheet Metal Works, Inc., by insisting to a point of impasse, as a condition of 703 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reaching a new collective-bargaining agreement, on the continuation of the nonmandatory subjects for bargaining contained in article X, section 8 (interest arbitration), of the bargaining agreement which expired on June 30, 1976. WE WILL NOT refuse to bargain in good faith with Elmsford Sheet Metal Works, Inc., by insisting to a point of impasse, as a condition of a new collective-bargaining agreement, on the continuation of the nonmandatory subjects for bargaining contained in article VIII, sections 12(b) and 13(b) (industry funds) of the bargaining agreement which expired on June 30, 1976. WE WILL NOT refuse to bargain in good faith with Elmsford Sheet Metal Works, Inc., by entering into and continuing negotiations with a fixed mind and position not to arrive at a collective-bargaining agreement without the in- clusion of article VIII, sections 12(b) and 13(b), and article X, section 8, of the bargaining agreement which expired on June 30, 1976. WE WILL NOT restrain or coerce Elmsford Sheet Metal Works, Inc., in the selection of their representatives for the purposes of collective bargaining by insisting on the continuation in a new bargaining agreement of the provisions contained in article X, section 8, of the bargaining agreement which expired on June 30, 1976. WE WILL NOT insist on compliance with, or attempt to enforce, the award of the National Joint Adjustment Board of November 11, 1976, including the threat to strike, insofar as that award determines the terms and conditions of a new collective-bargaining agreement between Sheet Metal Workers International Association, Local Union No. 38, and Elmsford Sheet Metal Works, Inc. WE WILL NOT in any like or related manner restrain or coerce Elmsford Sheet Metal Works, Inc., in the selection of their bargaining represent- atives for the purposes of collective bargaining, or in any like or related manner refuse to bargain collectively with Elmsford 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 employ- ment. WE WILL bargain with Elmsford Sheet Metal Works, Inc., concerning the wages, hours, and other terms and conditions of employment for employees in the following appropriate bargain- ing unit. All journeymen and apprentice sheet metal workers employed by Elmsford Sheet Metal Works, Inc., excluding supervisors as de- fined in the National Labor Relations Act. WE WILL notify Elmsford Sheet Metal Works, Inc., that we will not insist to impasse as a condition of a new collective-bargaining agree- ment on continuation of the provision of article X, section 8, and article VIII, sections 12(b) and 13(b), of the bargaining agreement which expired on June 30, 1976. SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL UNION No. 38 APPENDIX B ARTICLE VIII SECTION 12(a). Contributions provided for in Section 12(b) of this Article will be used to promote programs of industry education, training, negotiation and administra- tion of collective bargaining agreements, research and promotion, such programs serving to expand the market for the services of the sheet metal industry, improve the technical and business skills of employers, stabilize and improve Employer-Union relations, and promote, support, and improve the employment opportunities for employees. No part of any such payments, however, shall be used for political activities or to oppose officially stated policy, or officially endorsed programs, or to interfere in any way in the internal affairs of the Sheet Metal Workers' Interna- tional Association or of any affiliated local union. (b) The employer shall pay the Sheet Metal and Air Conditioning Contractors' National Industry Fund of the United States (IFUS) two cents ($0.02) per hour for each hour worked on and after the effective date of this agreement by all employees of the employer covered by this Agreement. Payment shall be made on or before the 20th day of the succeeding month and shall be remitted to IFUS, 1611 North Kent Street, Arlington, Virginia, 22209, or for the purpose of transmittal, through SMREA OF SEN Y, INC. (Name of local remitting organization) SECTION 13(a). Contributions provided for in Section 13(b) of this Article will be used to promote programs of industry education, training, negotiation and administra- tion of collective bargaining agreements, research and promotion, such programs serving to expand the market for the services of the Sheet Metal Industry, improve the technical and business skills of employers, stabilize and improve Employer-Union relations, and promote, support, and improve the employment opportunities for employees. No part of any such payments, however, shall be used for political activities or to oppose officially stated policy or officially endorsed programs or to interfere in any way in the internal affairs of the Sheet Metal Workers' Interna- tional Association or of any affiliated local union. (b) The Employer shall pay to the Sheet Metal Industry Fund of Westchester & Vicinity (Name and address of local 704 SHEET METAL WORKERS, LOCAL 38 industry fund) (hereinafter referred to as the local industry fund), 1-1/2% cents ($0.--) per hour for each hour worked on or after the effective date of this Agreement by all employees of the employer covered by this Agreement. Payment shall be made monthly on or before the 20th day of the succeeding month. ARTICLE X 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 Associa- tion and the Chairman of the Labor Committee of Sheet Metal and Air Conditioning Contractors' National Associ- ation, Inc. believe the dispute might be adjusted without going to final hearing before the National Joint Adjust- ment Board, each will then designate a panel representative who shall proceed to the locale where the dispute exists as soon as convenient, attempt to conciliate the differences between the parties and bring about a mutually acceptable agreement. If such panel representatives or either of them conclude that they cannot resolve the dispute, the parties thereto and the General President of Sheet Metal Workers' International Association and the national office of Sheet Metal and Air Conditioning Contractors' National Associ- ation, Inc. shall be promptly so notified without recom- mendation from the panel representatives. Should the President of Sheet Metal Workers' International Associa- tion or the Chairman of the Labor Committee of Sheet Metal and Air Conditioning Contractors' National Associ- ation, Inc. 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 final and binding upon the parties, reduced to writing, signed and mailed to the parties as soon as possible after the decision has been reached. There shall be no cessation of work by strike or lockout unless and until said Board fails to reach a unanimous decision and the parties have received written notification of its failure. (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 questions raised by members of the Board. Any briefs filed by either party including copies of pertinent exhibits will also be ex- changed 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 communicateo to the parties by mail, telegram, or telephone notification. (d) Unless a different date is agreed upon mutually between the parties or is directed by the unanimous decision of the National Joint Adjustment Board, all effective dates in the new agreement shall be retroactive to the date immediately following the expiration date of the expiring agreement. 705