International Association of Heat and Frost Insulators and Asbestos Workers Local Union No. 27, AFL-CIO (Master Insulators Association, Inc.)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Association of Heat and Frost Insula- tors and Asbestos Workers Local Union No. 27, AFL-CIO and Master Insulators Association, Inc. Case 17-CB-2319 September 7, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND HUNTER On January 21, 1982, Administrative Law Judge Richard J. Boyce issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, the Charging Party filed exceptions and a brief in support thereof and in opposition to Respondent's exceptions, and Re- spondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge to the extent consistent herewith and to adopt his recommended Order. The Administrative Law Judge found that Re- spondent violated Section 8(b)(1)(B) and (3) of the Act by refusing to bargain with the Charging Party Association concerning apprenticeship training, by refusing to meet with the representatives designat- ed by the Association to represent it on the Joint Apprenticeship Committee, and by threatening to strike as a means of dictating to the Association whom it should or should not select to represent it for purposes of collective bargaining. While we agree with these conclusions, we do so for the fol- lowing reasons. As more fully set forth by the Administrative Law Judge, Respondent represents the insulation mechanics, apprentices, and improvers employed by the employer-members of the Association. The collective-bargaining agreement which was in effect from October 14, 1977, through October 13, 1980, provided for the establishment of a Joint Ap- prenticeship Committee (JAC) composed of three representatives from the Association and three from the Union, whose function was to formulate, adopt, and administer an apprenticeship program. The apprenticeship program was to be financed by payments from a trust fund, also provided for in the contract, which was funded by Association contributions. Such trust funds are authorized by Section 302(c)(5) of the Act. 263 NLRB No. 118 Historically, although not called for in the con- tract, individuals designated by the Association to serve as its JAC representatives also served as trustees for the training fund. In the early months of 1979, however, the Association concluded that the trust fund was operating without a written trust agreement, in violation of Section 302(c)(5), and di- rected its three trustees, Wilkerson, Beatty, and Drager, to resign their trustee positions while ex- pressly retaining their status as Association repre- sentatives on the JAC. In subsequent months, Re- spondent refused to convene a meeting of the JAC so long as Wilkerson was present, and as a result the apprenticeship program was crippled. The Administrative Law Judge, relying, inter alia, on United Mine Workers of America, Local No. 1854 (Amax Coal Company, a Division of Amax, Inc.,' noted that trustees of Section 302(c)(5) trust funds are not, in that capacity, collective-bargain- ing representatives within the meaning of Section 8(b)(1)(B) of the Act. He found, however, that, having resigned their trustees positions, the Associ- ation's representatives on the JAC were 8(b)(l)(B) collective-bargaining representatives, and, accord- ingly, that Respondent's refusal to meet with them violated Section 8(b)(l)(B) and (3) of the Act. Re- spondent contends that Amax is precedent for just the opposite conclusion, since, in a portion of the Board's decision which the Administrative Law Judge did not discuss, the members of a joint train- ing committee were found not to be 8(b)(1)(B) bar- gaining representatives. 2 Accordingly, Respondent contends that no violation of that section or Sec- tion 8(b)(3) may be found in this proceeding. It is clear that one who serves as a trustee of a 302(c)(5) trust is not, in that capacity, acting as an 8(b)(l)(B) bargaining representative. Amax Coal Company, supra. Wilkerson, Beatty, and Drager having resigned as trustees, however, the inquiry must proceed to the nature of their functions as JAC representatives. The duties of the JAC mem- bers are set forth in article XX of the collective- bargaining agreement. 3 'This provision essentially 238 NLRB 1583 (1978), enfd. as modified 614 F.2d 872 (3d Cir. 1980), modification reversed 453 U.S. 322 (1981) 2 238 NLRB at 1615-17, 3 That section provides: ARTICLE XX APPRENTICESHIP TRAINING PR(OGRAM The parties hereto agree to administer an apprenticeship training program which will be registered with the Federal Bureau of Ap- prenticeship and Training. This program will he administered by a Committee, hereinafter called the Joint Apiprenticeship Committee, which will consist of three (3) representatives of the Employers and three (3) representatives of the Union. This Committee shall formu- late and adopt an apprenticeship program and shall institute other Continued 922 INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS delegates to the JAC responsibility for fleshing out the collective-bargaining agreement by formulating, adopting, and administering an apprenticeship pro- gram. The role of the JAC is thus distinguishable from that of the training committee in Amax, the function of which was merely to advise the various companies in the multiemployer association about employee training programs. Each of the employ- ers there was free to disregard the committee's advice, and each was to develop its own program. Committee members were accordingly found by the Board not to be 8(b)(1)(B) bargaining repre- sentatives. Here, we find that in the process of reaching agreement on the specification and oper- ation of the program which they are bound to for- mulate and implement, the JAC members necessar- ily act as collective-bargaining representatives within the meaning of Section 8(b)(l)(B). While we reject Respondent's contention that the members of the JAC were not 8(b)(1)(B) bar- gaining representatives, we agree with Respondent that the issLue of their status is central to this case. It is for this reason that we find no merit in Re- spondent's argument that this case should have been deferred to the grievance-arbitration proce- dure of the collective-bargaining agreement. Al- though interpretation of the contract provides evi- dence concerning the JAC members' duties, the crucial determination of whether such duties con- stitute JAC members as 8(b)(1)(B) bargaining rep- resentatives is necessarily one of statutory con- struction, and therefore is a determination properly made by the Board.4 Respondent argues that it was privileged to refuse to meet with the JAC after Wilkerson, Beatty, and Drager resigned from their trustee po- sitions and new trustees were appointed because this departure from the traditional practice of rules and procedures which will insure only qualified and acceptable apprentices are retained in this program. Qualifications for accept- ance to this program will be established and the use of tests and other media shall be utiliLed to determine qualifications of applicants. The number of Apprentices in this program shall be sufficient at all times to provide all Employers signatory to this Agreement with not less than one (I1) Apprentice to four (4) Mechanics beyond which the Apprenticeship Committee shall recognize the need for an ad- justed ratio depending upon the future needs any [sic] operating re- quirements of the Employers. This program shall comply with relevant Federal, State, and Local laws and will he administered without regard to race, creed, sex, color, or national origin. This program to be financed by payments as stipulated in ARTI- CLE VIII, SECTION 7. Any increase or decrease warranted as ap- plicable to be decided by the Joint Apprenticeship Committee. Effective October 14, 1969, funds to reach the bank no later than the fifteenth (15th) of the month following the month covered by the report. (Ref: Article Vill, Section 7). 4 New York Typographical Union No. 6 (The New York News. Inc.), 237 NLRB 1241, 1243 (1978); Member Hunter does not necessarily adopt in toto the rationale sct forth in that decision. However, he does agree that deferral is inappiopriate in the circumstances of the instant case. having the same individuals function both as JAC members and trustees violated the collective-bar- gaining agreement.s The Administrative Law Judge, treating this argument as an allegation that the Association's conduct constituted an unfair labor practice, rejected it as being barred by Sec- tion 10(b) of the Act. We find it unnecessary to decide whether Respondent's defense was barred by Section 10(b) because, even were we to consid- er such evidence, we would find that the Associ- ation was not required to name the same three indi- viduals to serve as both JAC members and trustees. Since, as found above, the JAC representatives were collective-bargaining representatives within the meaning of Section 8(b)(1)(B) of the Act, the Association was under no duty to bargain concern- ing their designation, and was free to alter its past practice. Moreover, we note that the committee with which Respondent refused to meet-the JAC-was unchanged in composition by the Asso- ciation's decision to appoint separate trustees. Thus, there is a hollow ring to Respondent's contention that its refusal to meet with the JAC stemmed from that committee's illegitimate composition. Instead, like the Administrative Law Judge, we find that Respondent objected to Wilkerson's presence on the committee, and was attempting to dictate to the Association whom its collective-bargaining repre- sentatives would be by refusing to meet with the JAC so long as Wilkerson was a management rep- resentative. By this conduct Respondent violated Section 8(b)(l)(B) and (3) of the Act. This is so be- cause Respondent's refusal to meet with the Asso- ciation's lawful bargaining representatives to bar- gain collectively violated Section 8(b)(3). That re- fusal, therefore, as a matter of law, coerced and re- strained the Association. The object of that coer- cion was the identity of the Association's bargain- ing representatives; accordingly, Respondent's ac- tions also violated Section 8(b)(1)(B). Upon the expiration of the collective-bargaining agreement, in October 1980, Respondent struck the Association employers. Among the issues in dispute was Respondent's demand that trustees for the training fund appointed by the Association be "in- dustry-related." The Association ultimately acced- ed to this demand, and the parties' new collective- bargaining agreement includes such a provision. In its exceptions to the Administrative Law Judge's Decision, the Association urges that we should order this language deleted from the agreement. This we decline to do. The complaint does not allege that this provision is unlawful, and, as the 6 The Association initially refused to appoint new trustees, but eventu- ally did so under a court order obtained by Respondent 923 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Administrative Law Judge noted, at no time before filing her brief did counsel for the General Counsel move to amend the complaint or otherwise inti- mate a desire to bring any evidence relating to this issue into the case as other than background mate- rial. As the matter was not fully litigated, we need not pass on the merits of the Association's conten- tions.6 We note, however, as discussed above, that the trustees of a Section 302(c)(5) trust fund are not collective-bargaining representatives within the meaning of Section 8(b)(1)(B), and thus Respond- ent was free during contract negotiations to insist upon the qualifications of these individuals. 7 THE REMEDY Having found that Respondent violated Section 8(b)(1)(B) and (3) of the Act by refusing to bargain in good faith with Master Insulators Association, Inc., concerning the apprenticeship training pro- gram, by refusing to meet with those representa- tives designated by the Association to represent it, and by threatening to strike as a means of dictating to the Association whom it should or should not select to represent it for purposes of collective bar- gaining, we shall order Respondent to cease and desist from engaging in such conduct, and to take certain affirmative action designed to effectuate the purposes of the Act. CONCLUSIONS OF LAW 1. Master Insulators Association, Inc., and its em- ployer-members, jointly and severally, are employ- ers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent International Association of Heat and Frost Insulators and Asbestos Workers Local Union No. 27, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. At all times material herein, Respondent has been the exclusive bargaining representative within the meaning of Section 9(a) of the Act for the unit of insulation mechanics, apprentices, and improvers employed by the employer-members of the Associ- ation. 4. By refusing to bargain in good faith with Master Insulators Association, Inc., concerning the apprenticeship training program, by refusing to meet with those representatives designated by the Association to represent it on the Joint Apprentice- ' In agreeing that the matter was not fully litigated, Member Fanning notes that this fact distinguishes the instant case from Pastik Film Prod.- ucts, Corp., 238 NLRB 135 (1978), relied on by the Administrative Law Judge. Chairman Van de Water relies Iolely on the fact that such matter was neither alleged nor litigated and finds it unnecessary to reach the issue whether the qualifications of Amociation-appointed trustees is a mandatory subject of bargaining. ship Committee, and by threatening to strike as a means of dictating to the Association whom it should or should not select to represent it for pur- poses of collective bargaining, Respondent has vio- lated and is violating Section 8(b)(1)(B) and (3) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, International Association of Heat and Frost Insulators and As- bestos Workers Local Union No. 27, AFL-CIO, Raytown, Missouri, its officers, agents, and repre- sentatives, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge: This matter was heard before me in Kansas City, Kansas, on March 10, 1981. The charge was filed on September 18, 1980, by Master Insulators Association, Inc. (herein As- sociation). The complaint issued on October 17, and alleges that International Association of Heat and Frost Insulators and Asbestos Workers Local Union No. 27, AFL-CIO (herein Respondent), has violated Section 8(b)(XB) and (3) of the National Labor Relations Act, as amended (herein Act), respectively, since late March 1980, "and in particular on or about September 5 and 17, 1980," by "refus[ing] to meet and negotiate with the Association's designated representatives on the Joint Apprenticeship Committee," and by "fail[ing] and refus[ing] to meet and bargain with the Association concerning the apprentice- ship training program." The complaint alleges that Respondent further violat- ed Section 8(bX1)B) on or about September 5, 1980, by "threaten[ing] to strike if the Association insisted upon negotiating with regard to the apprenticeship training program through its designated representatives on the Joint Apprenticeship Committee."' I Counsel for the General Counsel asks in her brief that certain of Re- spondent's conduct in contract negotiations, most if not all of which oc- curred after issuance of the complaint, also be found to have violated Sec. 8(bXIXB) and (3), and that the remedy be fashioned accordingly. This request is rejected inasmuch as she. at no time before filing her brief, moved to amend the complaint, or otherwise intimated a desire to bring such conduct into the case for other than background purposes. Plastk Film Products Corp., 238 NLRB 135, fn. 2 (1978). 924 INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS I. JURISDICTION The Association is comprised of insulation contractors in the construction industry, for whom it negotiates and administers collective-bargaining agreements with var- ious labor organizations, including Respondent. The em- ployer-members of the Association, in the aggregate, an- nually purchase and cause to be delivered across state lines materials valued in excess of $50,000, and annually transport across state lines goods and services valued in excess of $50,000. The Association and its employer-members, jointly and severally, are employers within Section 2(2), (6), and (7) of the Act. II. I.ABOR ORGANIZATION Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts Respondent is the bargaining representative of the in- sulation mechanics, apprentices, and improvers employed by the members of the Association.2 The most recent past labor contract between Respondent and the Associ- ation covering those employees ran from October 14, 1977, through October 13, 1980. Article 8, section 7, of the labor contract required that the members of the Association "pay to the Trustees of the MO-KAN Asbestos Workers' Apprenticeship Train- ing Fund at the rate of 5 cents per hour worked by the Employee, for the purpose of said Fund as set out in the Trust Agreement." Article 20 of the contract provided for the administration of an apprenticeship training pro- gram "by a Committee . . . which will consist of three (3) representatives of the Employers and three (3) repre- sentatives of the Union," with the program "to be fi- nanced by payments as stipulated in Article 8, Section 7." Until the events in question, the same people always served both as trustees of the training fund and as mem- bers of the committee administering the training pro- gram. Nothing in the contract, however, expressly re- quired that this be the case. The administering committee is commonly known as the Joint Apprenticeship Committee (herein JAC). With- out its functioning, the apprenticeship training program is in many respects paralyzed. Among other things, new apprentices cannot be enrolled in the program, nor can those completing it be certified as journeymen. The JAC customarily met quarterly, but has not met or functioned since September 5, 1979, at least, to the time of the present hearing. Effective January 1, 1979, the Association's designates as trustees and JAC members were William Wilkerson, Billy Beatty, and Larry Drager. Wilkerson, newly desig- nated, was a labor relations professional, being executive director of the Association and coordinator of labor rela- tions for the Builders' Association of Missouri. Beatty and Drager were employed in the insulation industry. 2 It is concluded that this is an appropnate unit for purposes of the Act. In the ensuing few months, it was ascertained that there was no written trust agreement of the sort contem- plated by article 8, section 7, of the labor contract. A meeting of the trustees/JAC members on September 5, 1979, addressed but did not resolve the problem. By identical letters dated October 3, Wilkerson, Beatty, and Drager informed Respondent and the Association that, because of a "belief that the trust fund for the MO-KAN Asbestos Workers' Apprenticeship Training Fund . . . is being handled in a fashion which is imprudent, improper, and illegal," each thereby was "resign[ing] any and all involvement . . . on the said implied trust fund." The letters added that the three "will continue to serve in the capacity as an employer's representative on the Joint Apprenticeship Committee and serve only in that capacity"; and requested a meeting of the JAC, to be held October 15, "for the specific purpose of fulfilling the committee's mandate" under the labor contract, "and to fulfill any other responsibilities [it] may have." The requested October 15 meeting did not materialize; and as earlier noted, there were no subsequent JAC meetings to the time of hearing. A few days after the res- ignation letters, Beatty had a telephone conversation with Ben Blair, Respondent's business agent and one of its designates as trustee/JAC member, in which Blair de- clared that Wilkerson's presence on the JAC was a "stumbling block" preventing the apprenticeship pro- gram from "moving." Management trustees of the health and welfare, pen- sion, and vacation trust funds also had resigned. Re- spondent sued in the fall of 1979 to compel the Associ- ation to fill the vacancies left by several resignations. With that as a prod, the Association in December 1979 appointed James Duvall, Charles Fowler, and Jeffrey Kean to be management trustees of the training fund, and the other funds as well. Wilkerson, as executive di- rector of the Association, informed Respondent of this by letter dated December 19. The letter made no refer- ence to the JAC. Blair responded to Wilkerson's letter by one dated De- cember 21. After acknowledging Wilkerson's letter, Blair's stated: I can only assume that Bill Beatty, Larry Drager, and yourself are no longer members of the Appren- ticeship Training Committee as the standards read three from Management and three from Labor. If you have resigned, I would appreciate receiv- ing your resignation letters. Wilkerson responded by letter dated January 2, 1980, stating in relevant part: Please be advised that Mr. James T. Duvall, Mr. Charles W. Fowler, and Mr. Jeffrey B. Kean have been appointed by the Master Insulators Association for the purpose of serving as trustees to the Mo- Kan Asbestos Workers' Apprenticeship Training Trust Fund as called for under Article VIII, Sec- tion 7, . . . of the Trade Agreement. This is to further advise that Mr. Larry Drager, Mr. Bill Beatty, and I will continue to serve as rep- 925 DECISIONS OF NATIONAL LABOR RELATIONS BOARD resentatives of the Master Insulators Association on the Joint Apprenticeship Committee for the purpose of administering an apprenticeship training program as called for under Article XX . . . of the Trade Agreement. Ben, I trust that the above will clear up any mis- understanding . . . as to" who appointed from Man- agement was to serve in what capacity. Should there be any further misunderstanding or question on the matter, please feel free to give me a call. Wilkerson's letter closed by "request[ing] a meeting of the Joint Apprenticeship Committee on either of the fol- lowing four dates: January 11, 14, 18, or 25th." Blair's response, if any, is not disclosed by the record. By letter dated February 26, 1980, the president of the Association, William Rue, informed Blair, among others, that, at the February meeting of the Association, Duvall, Fowler, and Kean had been appointed to remain through 1980 as management trustees of the training fund, with Wilkerson, Beatty, and Drager continuing on the JAC. In March 1980, Beatty telephoned Blair, asking if it would be "possible to get the apprenticeship program back on track." Blair was less than enthusiastic, com- menting that Wllkerson had "no business being on the committee." Beatty called Blair again about a month later, asking about "the apprenticeship problem" and as- suring Blair that he would do everything "in [his] power to get this thing rolling." Blair responded that he had "many other things to do that was more important," and that he would "get to it when he could. Beatty called Blair about once a month thereafter until perhaps August, expressing concern that the JAC resume func- tioning "so we could get back in ratio."3 Blair was un- moved. In June 1980, Blair telephoned Drager, proposing a meeting of union and association representatives to dis- cuss matters of common concern. Drager asked that the apprenticeship situation be among the items considered, prompting Blair to remark, "Why do you not arrange it so you could leave Mr. Wilkerson at home?" Drager an- swered that, Wilkerson being on the JAC, that would be difficult to do. Blair countered that Wilkerson's presence would be "anti-productive," and that they could meet without him as they had done "in the old days." Drager closed the conversation by saying he would check with Rue, association president. Checking with Rue, Drager was told that Wilkerson could not be circumvented. Blair's response, upon Drager's so informing him, was, "We'll see about that." On September 5, 1980, Blair telephoned Duvall, one of the management trustees of the training fund, voicing his desire for a meeting preliminary to "starting up the ap- prenticeship classes." Duvall replied that that was "the function of the Joint Apprenticeship Committee," of which he was not a member, and promptly informed Wilkerson that Blair wanted a meeting. s The labor contract called for "a ratio of one (1) Apprentice or Im- prover to four (4) Mechanics employed in a shop." Beatty testified that, if new apprentices were not enrolled by late 1980, "we would be drasti- cally out of ratio." It is not unusual to be somewhat out of ratio. Wilkerson in turn called Blair, still on September 5, announcing that the management members of the JAC also wanted a meeting, and would be available the next week. Blair stated that he wanted to deal with Duvall and did not "want to discuss the situation with" Wilker- son. Wilkerson said that Duvall was not on the JAC; that he, Beatty, and Drager had been appointed by man- agement as it was entitled to do "under the law and under the contract"; and that they "intend[ed] to fulfill that purpose." Blair responded, "[I]f you insist upon meeting on this basis, you are just going to cause a strike on October 13," the contract expiration date. Following that exchange, Wilkerson sent this letter, dated September 5, to Blair: This is to reaffirm my telephone call to you this date regarding Asbestos Workers' Local 27 Appren- ticeship Training. The Master Insulators' Association three representa- tives to the Joint Apprenticeship Committee as called for on page 26, Article XX, paragraph 1, of the Trade Agreement is the same as has served on the Joint Apprenticeship Committee in the past, namely Larry Drager, of Johns-Manville; Bill Beatty, of Owens-Corning; and myself. This com- mittee stands ready as it has in the past to meet with your committee for the purpose of carrying out those duties and responsibilities as set forth under this Article, and again request that your com- mittee meet with this committee so that these re- quirements can be fulfilled. This letter is to further reaffirm that the Master In- sulators' Association representatives to the Appren- ticeship Training Fund as called for on page 13, Ar- ticle VIII, Section 7, of the Trade Agreement is James T. Duvall, Charles W. Fowler and Jeffrey B. Kean, as you were so advised on January 2, 1980. It is the belief of the Master Insulators' Association and its members that the Asbestos Workers Industry will continue to have a difficult time in providing a service to the industry customers if you continue to refuse to set a time and date for a meeting of the Joint Apprenticeship Committee. In an effort to meet the responsibilities of the Joint Apprenticeship Committee as set forth under Arti- cle XX, pages 26 and 27 of the Trade Agreement, the representatives of the Master Insulators' Associ- ation Joint Apprenticeship Committee hereby re- quest a meeting with the members of your Joint Apprenticeship Committee at 9:00 A.M., Wednes- day, September 10; and, also in an effort to comply with your wishes that meetings be held on neutral ground, we have requested the use of a meeting room for the Wednesday morning meeting at the office of the Federal Mediation and space has been provided for the committee's use at that time. Blair responded by mailgram dated September 8, as- serting that it would be "impossible for our Joint Ap- 926 INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS prenticeship Committee to meet on September 10th" and adding that "a letter will follow." On September 11, Blair again called Duvall about starting apprenticeship classes. Duvall said that that was "the function of' the JAC, and that Blair "would have to deal with Don [Wilkerson]." Blair replied that he "would rather deal with" Duvall. On September 15, Blair sent to Wilkerson the letter to follow mentioned in his September 8 mailgram. It stated: Historically the Apprenticeship Committee and the Apprenticeship Trustees have been one and the same. I am quite sure that was the intent of all par- ties when negotiating the last trade agreement. On October 3, 1979, Management Trustees re- signed from all funds leaving the Apprenticeship Program without the ability to start the Apprentice- ship School. You then advised you would have both an Apprenticeship Committee and Apprentice- ship Trustees for a total of six management individ- uals dealing with the Apprenticeship Program in- stead of three. You have remained adamant in that position since that time. It is quite inconceivable that you would expect the Apprenticeship Program to attempt to operate with the requirement of double meetings for han- dling any action as the Apprenticeship Committee would have no financial ability to carry out any program they would recommend; but would have to make recommendations to the Apprenticeship Trustees for expenditures. To be quite candid, Union Trustees do not have the time to spend in double meetings nor does the Apprenticeship Fund have the money to operate in this manner. At the present time the Apprenticeship Program is one year late due to this position of management. The Raytown Vo-Tech School which handles our program has advised that due to the shortage of state funds, we must advise them immediately if we are going to have an Apprenticeship School this year or we will lose our state funding. I have con- tacted Mr. James Duvall, Secretary for the Appren- ticeship Program from Management's side and he is unable to authorize the start of this program with- out your consent. Soon we will be another year behind if we have to wait for state funds to be available next year. Members of Local No. 27 Apprenticeship Pro- gram are anxious to get the Apprenticeship Pro- gram active again and fulfill any contract require- ments such as ratios, minorities and women. We are willing to meet any time with the three Trustees ap- pointed by the Master Insulators Association on January 2, 1980; James Duvall, Charles Fowler and Jeffrey Kean. If you wish to change Trustees again, please so advise as we would like to have an Apprenticeship Meeting immediately. Wilkerson responded by lengthy and painstakingly de- tailed letter dated September 17. In it, after a paragraph- by-paragraph rejoinder to Blair's letter, he stated: May I reiterate as I have since October 3, 1979 that Mr. Bill Beatty, Mr. Larry Drager and I are the Joint Apprenticeship Committee. Mr. James Duvall, Mr. Charles Fowler and Mr. Jeffrey Kean are not, and have never been appointed by the Master Insu- lators Association to the Joint Apprenticeship Com- mittee. May I also remind you, as I did on Septem- ber 5, 1980 that the appointment of representatives to committees by Management is Management's right, as the appointments to committees by the Union is the Union's right. Again I herewith request that you please refrain from interfering with Man- agement's rights to decide who their representatives will be on the Joint Apprenticeship Committee and also please refrain from refusing meetings on the subject matter of your letter due to the Master Insu- lators Association refusal to appoint Mr. James Duvall, Mr. Charles Fowler and Mr. Jeffrey Kean to the Joint Apprenticeship Committee. In closing, Mr. Bill Beatty, Mr. Larry Drager and I, as the Joint Apprenticeship Committee representing the Master Insulators Association, herewith request a meeting of the Joint Apprenticeship Committee. Due to our inability to get you to discuss a meeting date in the past, we will leave it to you to pick the date and so advise. There is no evidence that Respondent, by Blair or oth- erwise, acknowledged the request in Wilkerson's letter for a JAC meeting on a date of Blair's choosing. Meanwhile, in February 1980, the management trust- ees of the training fund, with Duvall as their leader, had begun conferring with Respondent's trustees/JAC mem- bers, headed by Blair, for the purpose of drafting a mutu- ally acceptable trust instrument. Two "unresolved issues" emerged from a meeting on May 6-whether the trustees would be required to double as JAC members, and whether apprenticeship standards would be incorpo- rated in the trust document. The management trustees argued that those qualified to be trustees likely would lack sufficient craft expertise to serve well on the JAC, and vice versa; and that the standards should be in a sep- arate document. Blair, being of the opposite view on both issues, closed the meeting by saying "no decision can be made" at that time. On May 29, Duvall called Blair to inquire of the status of the two unresolved issues. Blair said he would be pre- senting them to the membership at a meeting scheduled for late June. Then, by letter dated May 29, Duvall in- formed Blair, in essence, that the Association would be agreeable to "one single committee," provided the ap- prenticeship standards were not embodied in the trust agreement. On July 22, Duvall again asked Blair about "the two outstanding issues," being told that there had been no resolution. Duvall put much the same question to Blair once more on August 5, receiving the same answer. Again on August 20 and 22, incidental to conversations between the two about other matters, Blair replied in the same fashion. 927 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By letters dated July 25 and August 22, Association President Rue expressed to Blair his concern "over the lack of progress in getting the apprenticeship program going," urging Blair's "immediate attention and coopera- tion." Blair replied by letter dated August 28, noting that the resignations of the management trustees from all the funds had left "the entire operation crippled"; proclaim- ing surprise that Rue was not "interested in resolving all trusts instead of just worrying about the Apprenticeship Fund"; asserting that "we are making progress on all funds"; and closing, "Rome was not built in a day and playing catch-up takes time." Finally, on an undisclosed date in October, Duvall asked Blair for "the last time" if they could "resolve" their differences and sign a trust agreement. Blair, as before, answered in the negative. On October 14, with the expiration of the contract, Respondent called a strike. It continued into January 1981. On or about October 20, during a meeting of Blair, Rue, and a Federal mediator, Blair declared that Re- spondent wanted "unilateral control" over the "day-to- day workings of the apprenticeship committee"; and that it wanted only "industry-related" people, as opposed to "professionals," on the JAC, but would be "willing to deal with Duvall, Kean, and Fowler as far as the trust was concerned." Duvall and Kean, as staff people for the Builders' Association of Missouri, were labor relations professionals. During a bargaining session on October 29, Wilkerson, as the Association's spokesman, suggested that the ap- prenticeship matter be deferred, permitting consideration of other issues, in view of the "strong feelings from both sides" concerning it. Blair countered that, until the Asso- ciation "capitulated . . . to the Union's demands on the apprenticeship . .. [they] could not discuss other issues." Blair made a similar declaration during the next session on October 31. On November 19, the Association issued this statement and offer to Respondent: Due to the Union's refusal to negotiate on other items until such time as Management agrees to either the doing away with the Apprenticeship pro- gram or agrees to an Apprenticeship program oper- ated solely on a day by day basis by Union repre- sentation without Management; and due to the damage being done to the industry as a whole, we as an Association hereby offer the Union an in- crease of $1.40 per hour effective now and to leave the rest of the contract as it is with an expiration date of July 1, 1981. This offer is made in an effort to allow both Union workers and Union Manage- ment to continue to service their customers while the parties explore possibilities as to a solution to the Apprenticeship problem. It is further proposed that the negotiation committees meet on a monthly basis over these seven months prior to expiration in an effort to resolve the Union's Apprenticeship problem before the agreement expires on July 1, 1981. Nothing came of that, and, on December 3, the gener- al president of Respondent's parent International, Andrew T. Haas, sent mailgrams to Blair and Rue asking that they meet with him in Washington, D.C., "in an effort to end this industry-damaging work stoppage." In the resultant meeting, on December 9, Haas announced that he was taking the apprenticeship issue "off the table," and admonished Blair and Rue not to put it "back on the table." The issue nevertheless was discussed. Rue evinced a willingness to accede to Respondent's demands that the same people serve both as trustees and on the JAC, and that they be "industry-related people." A new labor contract, settling the strike, was entered into on January 13, 1981. With regard to the apprentice- ship training program, it provides: [T]he apprenticeship program will remain as is, with the understanding that a trust agreement mutu- ally agreed to will be executed in order to protect the legality of the fund. Management will provide three trustees to this fund, who will be industry re- lated. The Association thereupon appointed Beatty, Drager, and Glen Tomlinson to serve as its "apprenticeship fund trustees." Tomlinson, like the other two, was employed in the insulation industry. Separate JAC members were not named. By letter to Blair dated February 24, 1981, Beatty, "as a delegated spokesman for" the Association, asked for "a meeting of the apprenticeship committee." He cited "a number of problems that need to be resolved before we can advertise for new apprentices." Blair replied by letter dated March 2 that he was "in full accord ... that it is important to have this meeting"; that, "due to the long strike, we are playing catch-up with all the trust funds"; that he would let Beatty know "when time is available for this meeting"; and that he felt the trust agreement should be "the number one item on the agenda." That, apparently, was the last development preceding the hearing. B. Conclusions It is concluded that Respondent violated Section 8(b)(l)(B) and (3) as alleged. Summarizing the facts of immediate pertinence to the alleged misconduct, the JAC did not meet between Sep- tember 5, 1979, and the time of the present hearing. Blair repulsed Beatty's proposal of March 1980 that there be a meeting to get the apprenticeship program "back on track" by declaring that Wilkerson had "no business being on the committee," and was unmoved by Beatty's like overtures in the ensuing few months. Similarly, when Drager asked in June 1980 that a labor-manage- ment meeting sought by Blair have the apprenticeship situation on its agenda, Blair remarked that Wilkerson's presence would be "anti-productive," and suggested that he be left "at home." Then, Blair proclaimed to Wilkerson on Septenber 5, 1980, in response to Wilkerson's disclosure that the man- agement members of the JAC desired a meeting the fol- 928 INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS lowing week, that he did not "want to discuss the situa- tion with" Wilkerson, but instead wanted to deal with Duvall, who had not been appointed to the JAC; and further stated in the same conversation, "[I]f you insist upon meeting on this basis, you are just going to cause a strike on October 13." After that, replying to Wilkerson's letter of September 5 requesting a JAC meeting on September 10, Blair as- serted by mailgram dated September 8 that a meeting on September 10 would be "impossible"; then, by letter to Wilkerson dated September 15, he rejected the idea of the training-fund trustees and the JAC members not being "one and the same," and expressed the willingness of Respondent's apprenticeship designates to meet only "with the three Trustees appointed by the . . . Associ- ation on January 2, 1980: James Duvall, Charles Fowler, and Jeffrey Kean." Finally, Blair apparently ignored altogether the request in Wilkerson's letter of September 17 for a JAC meeting on a date of Blair's choosing; and the weight of evidence leaves no doubt that further strivings to that end by Wil- kerson or his management colleagues on the JAC would have been a futility. By thus refusing to meet with those designated by the Association to be its JAC representatives, initially be- cause of Wilkerson's participation and later, professedly, because the Association's JAC designates and its train- ing-fund trustees were not "one and the same," and by Blair's statement that the Association would "cause a strike" should it "insist upon meeting on this basis," Re- spondent failed to bargain in good faith as required by Sections 8(b)(3) and 8(d),4 and restrained or coerced the Association "in the selection of [its] representatives for the purposes of collective bargaining," violating Section 8(bX)IXB). E.g., United Mine Workers of America, Local No. 1854 and United Mine Workers of America (Amax Coal Company), 238 NLRB 1583 (1978); Graphic Arts In- ternational Union, Local No. 280 (Samuel L. Holmes), 235 NLRB 1084, 1097 (1978); Sheet Metal Workers Interna- tional Association Local Union No. 38 (Elmsford Sheet Metal Works, Inc.), 231 NLRB 699 (1977). Respondent's argument is rejected that Wilkerson, Beatty, and Drager, as the Association's appointees to JAC, were not bargaining representatives of the Associ- ation for purposes of the Act, and that Respondent there- fore could not have violated Section 8(bXIXB) and (3) regardless of its attempts to dictate whom the Associ- ation designated. The decisions from which this argu- ment derives concern trustees of joint trust funds under Section 302(C) of the Act, their rationale being that the fiduciary obligation attending such trusteeships to act solely in the interests of the trust beneficiaries precludes the trustees' acting on behalf of labor or management in a bargaining sense. United Mine Workers of America, Local No. 1854 (Amax Coal Company), supra, 238 NLRB at 1588; Sheet Metal Workers' International Association (Central Florida Sheet Metal Contractors Association), 234 NLRB 1238, 1246-48 (1978). By resigning as trustees of the training fund in September 1979, Wilkerson, Beatty, " While the complaint alleges that the strike threat violated only Sec 8(bXIXB), that conduc,. in the circumstances, clearly violated Sec 8(bX3) as well. and Drager plainly removed themselves from this cate- gory. Also rejected is Respondent's contention that the As- sociation's departure in 1979 from the traditional practice of having the same people double as training-fund trust- ees and JAC members was an improper unilateral change, and that Respondent therefore was justified in not dealing with the Association's separate JAC group. Section 10(b) of the Act bars one from defending against a refusal-to-bargain allegation by citing another's miscon- duct which occurred more than 6 months before any charge was filed giving rise to the issue. Tahoe Nugget, Inc. d/b/a Jim Kelley's Tahoe Nugget, 227 NLRB 357 (1976), enfd. 584 F.2d 293 (9th Cir. 1978). See also Local Lodge No. 1424, International Association of Machinists, AFL-CIO; and International Association of Machinists. AFL-CIO [Bryan Manufacturing Co.] v. N.L.R.B., 362 U.S. 411 (1960). Rejected, finally, is Respondent's argument that the present dispute is "rooted in the parties' differing inter- pretations of the contract language," and that the Board therefore should defer to the grievance arbitration ma- chinery of the labor contract under the doctrine of Col- lyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971), and Roy Robinson Chevrolet, 228 NLRB 828 (1977).5 As is concluded in the paragraph im- mediately preceding, Section 10(b) removes from consid- eration the propriety of the Association's departure from the traditional practice of doubling its training-fund trust- ees as JAC members, which is the only arguable issue of contract interpretation that might be raised. That leaves just the question of Respondent's refusal to deal with the Association's designated JAC representatives, which "is not a matter to be deferred to arbitration, but rather one which requires the Board to invoke its jurisdiction and exercise its expertise." Native Textiles, 246 NLRB 228, 229 (1979). ORDER s The Respondent, International Association of Heat and Frost Insulators and Asbestos Workers Local Union No. 27, AFL-CIO, Raytown, Missouri, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Refusing to bargain in good faith with the Master Insulators Association, Inc., as concerns apprenticeship training or any other mandatory subject of bargaining, or from restraining or coercing the Association in the selec- tion of its representatives for the purposes of collective bargaining, by refusing to meet or deal with those desig- nated by the Association to represent it, or by threaten- ing to strike as a means of dictating to the Association 6 Art. 5 of the 1977-80 labor contract set forth a procedure for the resolution of disputes "arising out of the interpretation of this Agree- ment," the culminating step being "final and binding" arbitration. a All outstanding motions inconsistent with this Order hereby are denied In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the hoard and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 929 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whom it should or should not select to represent it for purposes of collective bargaining. (b) In any like or related manner refusing to bargain collectively with the Association, or from restraining or coercing the Association in the selection of its repre- sentatives for the purposes of collective bargaining. 2. Take this affirmative action: (a) Upon appropriate request, bargain with those desig- nated by the Master Insulators Association, Inc., to rep- resent it as concerns apprenticeship training or any other mandatory subject of bargaining, with regard to the em- ployees in the appropriate multiemployer bargaining unit. (b) Post at its offices and meeting halls copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 17, after being signed by an authorized repre- sentative of Respondent, shall be posted by it immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to members are custom- arily posted. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material. (c) Furnish to said Regional Director sufficient signed copies of said notice for posting by the Master Insulators Association, Inc., and its employer-members whose em- ployees comprise the appropriate bargaining unit, should they be willing, at those places where notices to employ- ees customarily are posted. (d) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have Eviolated the National Labor Relations Act, as amended, and has or- dered us to post this notice. WE WILL NOT refuse to bargain in good faith with the Master Insulators Association, Inc., as con- cerns apprenticeship training or any other manda- tory subject of bargaining and WE WILL NOT re- strain or coerce the Association in the selection of its representatives for the purposes of collective bar- gaining, by refusing to meet or deal with those des- ignated by the Association to represent it, or by threatening to strike as a means of dictating to the Association whom it should or should not select to represent it for purposes of collective bargaining. WE WILL NOT in any like or related manner refuse to bargain collectively with the Master Insu- lators Association, Inc., or restrain or coerce the Association in the selection of its representatives for the purposes of collective bargaining. WE WILL, upon appropriate request, bargain with those designated by the Master Insulators Associ- ation, Inc., to represent it as concerns apprentice- shop training or any other mandatory subject of bargaining, with regard to the employees in the ap- propriate multiemployer bargaining unit. INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTOS WORKERS LOCAL UNION NO. 27, AFL- CIO 930