Local 666, IBEW v. Stokes Electrical

Filed: August 11, 2000
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-1665
(CA-95-129-3)
Local Union No. 666, etc.,
Plaintiff - Appellant,
versus
Stokes Electrical Service, Inc.,
Defendant - Appellee.
O R D E R
The court amends its opinion filed August 8, 2000, as follows:
On page 2, section 3, lines 5-6 -- “Anessa Adams” is corrected
to read “Anessa Abrams.”
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LOCAL UNION NO. 666,
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO,
Plaintiff-Appellant,
v.
STOKES ELECTRICAL SERVICE,
INCORPORATED,
Defendant-Appellee.
NATIONAL ELECTRICAL CONTRACTORS
ASSOCIATION, INCORPORATED,
No. 99-1665
Amicus Curiae,
and
LOCAL UNION NO. 666,
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS BENEFIT TRUST
FUND; CHARLES P. WILSON, Trustee;
LARRY R. JARVIS, Trustee; JAMES H.
UNDERWOOD, Trustee; LAWRENCE R.
MOTER, JR., Trustee; MELVIN A.
MCGUINN, Trustee,
Movants.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-95-129-3)
Argued: April 6, 2000
Decided: August 8, 2000
Before WILKINS and MICHAEL, Circuit Judges, and
Patrick M. DUFFY, United States District Judge for the
District of South Carolina, sitting by designation.
_________________________________________________________________
Reversed and remanded by published opinion. Judge Michael wrote
the opinion, in which Judge Wilkins and Judge Duffy joined.
_________________________________________________________________
COUNSEL
ARGUED: Terry Russell Yellig, SHERMAN, DUNN, COHEN,
LEIFER & YELLIG, P.C., Washington, D.C., for Appellant. Gary L.
Lieber, SCHMELTZER, APTAKER & SHEPARD, P.C., Washing-
ton, D.C., for Amicus Curiae. Michael Peter Oates, HUNTON &
WILLIAMS, Richmond, Virginia, for Appellee. ON BRIEF: Anessa
Abrams, SCHMELTZER, APTAKER & SHEPARD, P.C., Washing-
ton, D.C., for Amicus Curiae. Barry T. Meek, HUNTON & WIL-
LIAMS, Richmond, Virginia, for Appellee.
_________________________________________________________________
OPINION
MICHAEL, Circuit Judge:
Local Union No. 666, International Brotherhood of Electrical
Workers, AFL-CIO (Local 666 or the Union) sued Stokes Electrical
Service, Inc. (Stokes or the Company) under Section 301 of the Labor
Management Relations Act (LMRA), 29 U.S.C. § 185, to enforce two
interest arbitration awards that directed Stokes to implement new
labor contracts. The parties submitted the case on cross-motions for
summary judgment, and the district court granted judgment to Stokes,
refusing to enforce the awards. We reverse. Although Stokes' good-
faith doubt about the Union's majority status relieved the Company
of its statutory duty to bargain, that did not free the Company of its
contractual obligation to submit to interest arbitration. We remand for
enforcement of the awards.
2
I.
The relationship between Stokes and Local 666 is governed both
by contract and by statute. For that reason, we will mention certain
National Labor Relations Act (NLRA or the Act) provisions and case
law as we recite the stipulated facts, contract terms, and history of the
case.
An employer is obligated under section 8(a)(5) of the NLRA, 29
U.S.C. § 158(a)(5), to bargain with a union that has been "designated
or selected," in the words of section 9(a), 29 U.S.C. § 159(a), "for the
purposes of collective bargaining by the majority of the employees."
As a general rule, it is an unfair labor practice under sections 8(a)(1)
and (2) for an employer, and under section 8(b)(1)(A) for a union, to
enter into a collective bargaining agreement when only a minority of
employees has chosen the union as its bargaining representative. See
American Automatic Sprinkler Sys., Inc. v. NLRB, 163 F.3d 209, 214
(4th Cir. 1998), cert. denied, 120 S. Ct. 65 (1999). However, under
section 8(f) there is an exception for the construction industry because
of special factors, such as the "uniquely temporary, transitory, and
sometimes seasonal nature" of much of the work in that industry. Jim
McNeff, Inc. v. Todd, 461 U.S. 260, 266 (1983). Specifically, section
8(f) allows employers and unions in the construction industry to enter
into labor agreements (commonly called "prehire" agreements) before
a majority of employees has approved the union as its bargaining rep-
resentative. See 29 U.S.C. § 158(f). These section 8(f) agreements are
voluntary, see Jim McNeff, 461 U.S. at 269, and under this circuit's
law "a pre-hire agreement may be repudiated by either party prior to
the union's achievement of majority status." Industrial TurnAround
Corp. v. NLRB, 115 F.3d 248, 254 (4th Cir. 1997). An 8(f) construc-
tion union is not required to achieve 9(a) status, and it may do so
"only through the traditional means available to unions in noncon-
struction industries." American Automatic Sprinkler, 163 F.3d at 218.
Thus, an 8(f) union may attain full 9(a) status"through either Board-
certified election or voluntary recognition based upon a clear showing
of majority support." Id. at 217. Once the union has 9(a) status, all of
the benefits and obligations of the NLRA are triggered, both for the
union and the employer.
3
Stokes, the employer in this case, is an electrical contractor, and
Local 666 is a labor organization. Stokes and Local 666 are involved
in the construction industry, and both are based in Richmond, Vir-
ginia. The National Electrical Contractors Association (NECA) is a
trade association authorized by its members to engage in multiem-
ployer collective bargaining.1 NECA is organized into chapters, one
of which is the Virginia Chapter. On August 25, 1986, Stokes signed
"letters of assent" authorizing the Virginia Chapter of NECA to act
as its representative for collective bargaining with Local 666. In sign-
ing the letters of assent, Stokes became bound to "Inside Construc-
tion" and "Residential Construction" collective bargaining agreements
between the Virginia Chapter of NECA and Local 666. At that stage,
Local 666 was an 8(f) union insofar as its relationship with Stokes
was concerned.
Local 666 remained an 8(f) union until March 11, 1991, when it
attained 9(a) status. On that day Stokes executed an agreement volun-
tarily recognizing the Union as the exclusive collective bargaining
agent for its electrical employees. This was done after a majority of
these employees signed authorization cards. Stokes also signed new
letters of assent with NECA on March 11, 1991. Thereafter, while
Local 666 was a 9(a) majority representative, Stokes committed itself
to new "Inside" and "Residential" collective bargaining agreements,
effective from September 1, 1992, through August 31, 1994 (the
"1992-94 Agreements" or the "Agreements").
All of the labor agreements to which Stokes was bound, including
the 1992-94 Agreements, contained provisions for interest arbitration.
(Interest arbitration covers "`disputes over the formation of collective
agreements or efforts to secure them.'" Local Union No. 637, IBEW
v. Davis H. Elliot Co., Inc., 13 F.3d 129, 133 (4th Cir. 1993) (quoting
Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711, 723 (1945)).) Section
1.02(a) in each of the 1992-94 Agreements provides that either party
desiring to change or terminate the Agreement must notify the other
at least 90 days prior to the anniversary date. A notice of desire to ter-
minate is handled in the same way as a proposed change. Negotiation
is contemplated in both instances. Under section 1.02(d) any unre-
_________________________________________________________________
1 NECA is amicus curiae in this appeal, and it argues for the enforce-
ment of the interest arbitration awards.
4
solved issues in negotiations may be submitted jointly or unilaterally
to the Council on Industrial Relations (CIR) for adjudication. The
CIR is an interest arbitration panel for the electrical contracting indus-
try; the panel is made up of twelve members, six appointed by the
NECA and six by the IBEW. CIR rulings must be unanimous.
On March 14, 1994, Stokes withdrew from the NECA and revoked
the authority of NECA's Virginia Chapter to act as its bargaining
agent. On May 92 Stokes wrote to Local 666, serving notice that the
Company intended to terminate the 1992-94 Agreements upon their
expiration on August 31. On June 2 Local 666 notified Stokes by let-
ter that it wished to negotiate new agreements in accordance with the
terms of the 1992-94 Agreements. With its letter the Union included
drafts of successor agreements with the proposed changes high-
lighted. On June 7 a majority of Stokes' electrical employees said, in
a signed statement handed to the Company, that it (the majority) no
longer wished to be represented by Local 666. Thereafter, on June 13
Stokes told Local 666 that it no longer believed the Union represented
a majority of the Company's employees and that it was filing a peti-
tion for an election with the National Labor Relations Board (Board
or NLRB) to resolve the question of the Union's status. The next day,
Stokes filed a petition for an election. Relying on these circumstances,
the Company refused to bargain with the Union on the terms of suc-
cessor agreements.
On July 13 the Union filed an unfair labor practice charge with the
Board alleging that Stokes had unlawfully refused to bargain in viola-
tion of section 8(a)(5) of the NLRA. The Regional Director for the
NLRB dismissed the Union's charge on July 29, finding that Stokes'
"refusal to bargain [was] based upon a good-faith doubt of the
Union's majority status." Local 666 did not appeal. On August 5 the
Regional Director also dismissed Stokes' petition for election, finding
that the question concerning representation was rendered moot by his
July 29 dismissal of the Union's unfair labor practice charge. Neither
side appealed.
Meanwhile, on July 18 Local 666 had (by letter) invited Stokes to
submit unresolved bargaining issues to the CIR for interest arbitra-
_________________________________________________________________
2 The dates are all in 1994, unless otherwise indicated.
5
tion. The Union took the position that under the 1992-94 Agreements
"any bargaining issues that remain[ed] unresolved on July 20, 1994,
[could] be submitted jointly or unilaterally by the parties to the [CIR]
for binding interest arbitration." Stokes responded that it intended to
comply with "the current collective bargaining agreements until their
expiration on August 31, 1994," but that "absent a statutory duty to
bargain with the union, Stokes Electrical Service has no duty to nego-
tiate successor agreements."
On August 1 the Union unilaterally submitted the unresolved issues
to the CIR for adjudication, and the CIR held a hearing on the
Union's submission on August 16. Stokes declined to participate in
the hearing, asserting that the CIR lacked jurisdiction. On August 31
the CIR issued two interest arbitration awards directing the parties to
sign and implement new labor agreements that were attached to the
awards. The new agreements were to be effective from September 1,
1994, through November 30, 1996 ("1994-96 Agreements" or the
"new Agreements"). Stokes has not signed or complied with the new
Agreements.
After Stokes filed unfair labor practice charges against Local 666
on August 31 and October 19, the General Counsel of the NLRB
issued a complaint against the Union. The General Counsel alleged
that the Union violated section 8(b)(1)(B) of the NLRA by invoking
interest arbitration and thereby coercing Stokes in its selection of its
bargaining representative after it had withdrawn from NECA and
after the Company no longer had a statutory duty to bargain with the
Union. The General Counsel also alleged that the Union violated sec-
tion 8(b)(1)(A) by attempting through interest arbitration to coerce
Stokes' employees in the selection of their collective bargaining rep-
resentative. The parties submitted the case to the Board on stipulated
facts. On August 27, 1998, the Board issued a decision dismissing the
General Counsel's complaint and holding that he had "failed to estab-
lish that the Respondent Union had no reasonable basis for pursuing
the unresolved bargaining issues through interest arbitration." IBEW,
Local Union No. 666 (Stokes Electrical), 326 N.L.R.B. 44, 1998 WL
568289, at *6 (1998).
Earlier, on February 16, 1995, Local 666 had filed this case against
Stokes under section 301 of the LMRA to enforce the two interest
6
arbitration awards. The district court stayed the case pending the
NLRB's decision on the General Counsel's complaint against the
Union. After the Board rendered its decision in favor of the Union on
August 27, 1998, the stay in district court was lifted, and the parties
filed cross-motions for summary judgment. The district court held for
Stokes, refusing to enforce the arbitration awards. The court con-
cluded that when Local 666 attempted to submit unresolved issues to
the CIR on August 1, 1994, "Stokes no longer had any statutory duty
to bargain with the Union over successor agreements to the 1992-94
Agreements." The court then concluded that the Union "had no inde-
pendent contractual right to demand interest arbitration once Stokes'
[statutory] duty to bargain with it had been extinguished." Local 666
appeals, and we review the district court's grant of summary judg-
ment de novo, see GTE South, Inc. v. Morrison, 199 F.3d 733, 745
(4th Cir. 1999).
II.
The question is whether Stokes is bound by the interest arbitration
clause in the 1992-94 Agreements. We conclude that it is and that the
CIR's arbitration awards directing Stokes to implement the new 1994-
96 Agreements must be enforced.
A.
Stokes first argues that the interest arbitration provisions of the
1992-94 Agreements do not apply when notice of the "desire to termi-
nate" an agreement has been given, as it was here. Because "the issue
of whether parties have agreed to arbitrate [is] a judicial one," we
apply "traditional principles of contract interpretation" to determine
the meaning of interest arbitration clauses. Local Union No. 637,
IBEW v. Davis H. Elliot Co., Inc., 13 F.3d 129, 133 (4th Cir. 1993).
A straightforward reading of the contract language reveals that an
unresolved issue over the desire to terminate the Agreements may be
submitted to the CIR for adjudication.
Section 1.02(a) of the 1992-94 Agreements provides that either
party "desiring to change or terminate [the Agreements] must notify
the other, in writing, at least 90 days prior to the anniversary date."
(emphasis added). Under section 1.02(d) "[u]nresolved issues in
7
negotiations . . . may be submitted jointly or unilaterally by the parties
[to the CIR] for adjudication." Finally, section 1.02(f) explicitly pro-
vides that "[n]otice by either party of a desire to terminate [the agree-
ment] shall be handled in the same manner as a proposed change."
See also Davis H. Elliot, 13 F.3d at 133 n.4 (concluding that an iden-
tical version of section 1.02(f) in an earlier NECA-IBEW agreement
meant that "termination of the agreement is subjected . . . to the same
procedures that govern proposed changes"). Consequently, section
1.02(d)'s reference to "unresolved issues in negotiations" covers
negotiations over both a request to terminate and a request to change
an agreement. These "unresolved issues" are subject to interest arbi-
tration, at least insofar as the plain language of the Agreements is
concerned. As a result, Stokes' notice of a "desire to terminate" the
Agreements did not relieve it of its contractual duty to submit to inter-
est arbitration for successor agreements.
Before we leave the contract issue, we note that Stokes did not
repudiate or void the 1992-94 Agreements. Stokes advised the Union
that it would comply with the Agreements until they expired.
B.
Stokes begins its second argument by pointing out that it was
relieved of its statutory duty to bargain with Local 666 when the
Regional Director dismissed the Union's unfair labor practice charge,
finding that the Company's "refusal to bargain [was] based upon a
good-faith doubt of the Union's majority status." Stokes argues that
once it was relieved of its statutory duty to bargain, it was also
relieved of its contractual duty to submit to interest arbitration with
the Union. This argument fails because the Board and the courts have
been careful to distinguish between statutory obligations under the
NLRA and the contractual obligation to engage in interest arbitration.
We look first at the Board case of IBEW Local No. 113 (Collier
Electric), 296 N.L.R.B. 1095, 1989 WL 224423 (1989). The issue
was whether the union violated sections 8(b)(1)(B) and (b)(3) of the
Act by invoking interest arbitration under a multiemployer contract
after the employer had withdrawn from the association (NECA) that
negotiated the contract. (The union had 9(a) status.) The Board began
with the premise that "when parties have bargained for and reached
8
an agreement," including one with an interest arbitration clause, "fair-
ness requires that they be allowed to enforce it." Collier Electric, 296
N.L.R.B. at 1098. Because interest arbitration is not a mandatory sub-
ject of bargaining, a dispute about the enforceability of an interest
arbitration clause is "primarily contractual." Id. at 1099. Thus, the
Board held, it is not "an unfair labor practice for a union to pursue
adherence to [an interest arbitration] provision provided that the
employer is arguably bound to it." Id. In that situation, the Board will
stay its hand and defer to the courts because "it is the courts, not the
Board, that are charged with determining the enforcement of provi-
sions of contracts that do not involve mandatory subjects of bargain-
ing." Id. (citing Allied Chem. Workers of America Local Union No.
1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 184-88 (1971)).
The Board applied Collier Electric in Sheet Metal Workers Local
Union No. 20 (Baylor Heating), 301 N.L.R.B. 258, 1991 WL 16567(1991). The employer in Baylor Heating had executed a section 8(f)
collective bargaining agreement with the union, and the agreement
contained provisions for interest arbitration. As the agreement neared
its expiration, the employer refused to negotiate a successor agree-
ment. And, the day after the old agreement expired, the employer
withdrew its 8(f) recognition of the union. The union then invoked
interest arbitration, the employer declined to participate, and the panel
issued an award that directed the employer to execute a new contract
with the union. The employer filed an unfair labor practice charge,
alleging that the union had violated section 8(b)(1)(B) by invoking
interest arbitration to bind the employer to a new agreement when the
employer had lawfully repudiated its 8(f) relationship with the union.
Relying on Collier Electric, the Board held that so long as the interest
arbitration clause was "arguably binding" on the employer, the union
did not commit an unfair labor practice by invoking interest arbitra-
tion, even though the agreement had expired and the employer had
withdrawn from its 8(f) relationship with the union. Baylor Heating,
301 N.L.R.B. at 260-61. In other words, if the union can make a rea-
sonable argument that the contract language allows it to submit "unre-
solved bargaining issues to interest arbitration," the union "will be
free to invoke its contract rights, including pursuit of a court action
to enforce the resulting agreement, without violating the Act." Id. at
260.
9
Several circuit cases have held that interest arbitration clauses sur-
vive the expiration of section 8(f) collective bargaining agreements,
and the interest arbitration awards have been enforced in those cases.
See Sheet Metal Workers Local 20 v. Baylor Heating and Air Condi-
tioning, Inc., 877 F.2d 547, 556 (7th Cir. 1989) (enforcing interest
arbitration award even though employer refused to negotiate and the
collective bargaining agreement had expired), abrogated on other
grounds by International Union of Operating Eng'rs, Local 150 v.
Rabine, 161 F.3d 427, 430 (7th Cir. 1998); Sheet Metal Workers' Int'l
Ass'n, Local 206 v. R.K. Burner Sheet Metal, Inc., 859 F.2d 758, 762
(9th Cir. 1988) (holding that "interest arbitration clauses survive the
expiration of a collective bargaining agreement" and rejecting "the
argument that contractual interest arbitration obligations are canceled
by the absence of a statutory duty to bargain"); Sheet Metal Workers
Local 57 Welfare Fund v. Tampa Sheet Metal Co., 786 F.2d 1459,
1460-61 (11th Cir. 1986) (holding that notwithstanding the expiration
of the original labor contract, the employer was bound by a renewal
contract issued by the arbitration panel according to the interest arbi-
tration clause); see also Sheet Metal Workers Int'l Ass'n Local 110
Pension Trust Fund v. Dane Sheet Metal, Inc., 932 F.2d 578, 581-82
(6th Cir. 1991) (relying on circuit decisions in R.K. Burner, Baylor
Heating, and Tampa Sheet Metal to enforce interest arbitration award
after employer refused to negotiate and collective bargaining agree-
ment expired).
The Board's Baylor Heating case and the Sheet Metal Workers
cases from the circuits establish the principle-- at least when an 8(f)
relationship between employer and union has ended-- that the
absence of a statutory duty to bargain does not relieve a party from
its contractual obligation to submit to interest arbitration. Stokes
argues that these 8(f) cases do not apply because Local 666 became
a 9(a) union on March 11, 1991, after a majority of its employees had
signed union cards and Stokes recognized Local 666 as the exclusive
bargaining agent for its employees. Stokes relies on the proposition
that once it had a good-faith doubt of the Union's majority (9(a)) sta-
tus, it had no statutory duty to bargain. Thereafter, according to
Stokes, Local 666 could not seek to extend (or regain) its 9(a) repre-
sentative status by invoking interest arbitration that would force the
Company into new labor contracts on behalf of Stokes' employees.
Thus, Stokes says, it must be relieved it of its contractual duty to sub-
10
mit to interest arbitration. As we will explain, Local 666 did not use
interest arbitration as a ruse to hang on as a majority union.
There is no circuit case directly on point, but the Board's decision
dismissing Stokes' unfair labor practice charge in this very case is
instructive. See IBEW, Local Union No. 666 (Stokes Electrical), 326
N.L.R.B. 44, 1998 WL 568289 (1998). The Board held that the Union
did not violate the Act when it invoked the interest arbitration clause
and sued to enforce the resulting awards. (Neither party petitioned for
review of the Board's order.) The Board rested its decision in Stokes
Electrical on three factors. First, the Board found that, as in Collier
Electric, the interest arbitration clause arguably bound Stokes to arbi-
tration for a successor contract. See id. at *6. Second, the Board noted
that the Union (when it invoked the interest arbitration clause) was
not contending that Stokes "was obligated to recognize it as a 9(a)
representative." Id. Thus, the Union was not trying "to use a contract
secured through interest arbitration as a means of extending a 9(a)
relationship." Id. Rather, it "was merely, like the respondent union in
Baylor Heating, exercising a contractual right to employ interest arbi-
tration for a successor contract." Id. Finally, the Board stressed that
"in any event . . . there [was] no proof . . . that the Union had actually
lost the majority status on which the original 9(a) recognition had
rested." Id. The Board elaborated on this last point as follows:
The Regional Director's administrative dismissal of
[Stokes'] 8(a)(5) charge established only that he agreed with
[Stokes'] contention that it had a good-faith doubt of the
Union's majority status and that [Stokes] could thereafter
decline to recognize and bargain with the Union without
running afoul of Section 8(d) and Section 8(a)(5) of the Act.
Even treating this administrative dismissal as a binding legal
finding, however, we cannot properly equate it with a find-
ing of actual loss of majority; that requires more than a find-
ing that an employer has objective considerations for
doubting a union's continuing majority support. While a
conclusive determination of employee support for the Union
might have been obtained through an election conducted
pursuant to the RM petition filed by [Stokes] . . . that peti-
tion was dismissed by the Regional Director. Because nei-
ther party sought review of that dismissal, the propriety of
11
that action is not before us. We therefore need not decide
whether a different result would be warranted in this case
had there been proof of an actual loss of majority support
for the Union prior to its invocation of the interest arbitra-
tion clause.
Id. (footnotes omitted). Once again, the Board deferred to the courts
for a decision on whether the employer was bound by the interest
arbitration provision.
The Board in Stokes Electrical focused in part on the Union's pur-
pose in invoking the interest arbitration clause. We must also focus
on the Union's purpose because Stokes' argument is built on its claim
that the Union was illegally using interest arbitration to extend its 9(a)
majority status. We repeat Stokes' argument: because it had no statu-
tory duty to bargain (by reason of its established good-faith doubt
about the Union's majority support), it was relieved of its contractual
obligation to submit to interest arbitration, which was being used for
an improper purpose.
The Board concluded in Stokes Electrical that Local 666 did not
invoke interest arbitration for the purpose of extending its status as a
9(a) representative. We reach the same conclusion. The interest arbi-
tration clause was in collective bargaining agreements that Stokes
freely assented to before there was any question about the Union's
status. When the Union invoked the interest arbitration clause, it was
not seeking to extend its status as a majority representative under 9(a).
Rather, it was demanding that Stokes comply with a provision in the
old Agreements, a provision that bound Stokes to interest arbitration.
Of course, Stokes had no statutory duty to bargain with the Union.
But in this respect, Local 666 was like the unions in the Board's Bay-
lor Heating case and the Sheet Metal Workers cases in the circuits.
In those cases the unions had lost their 8(f) status, and the employers
therefore had no statutory duty to bargain. The unions were neverthe-
less able to enforce interest arbitration clauses in expiring contracts.
We also conclude that Local 666's situation did not bar it from invok-
ing interest arbitration. Specifically, we hold that although Stokes had
no statutory duty to bargain because of its good faith doubt about the
Union's majority, it was not for that reason relieved of its contractual
obligation to submit to interest arbitration.
12
C.
Stokes next argues that the Regional Director's dismissal of its
election petition was tantamount to a formal decertification by elec-
tion, an event that would have ended the Union's rights under the col-
lective bargaining agreement. See, e.g., Retail Clerks Int'l Ass'n v.
Montgomery Ward & Co., 316 F.2d 754, 757 (7th Cir. 1963) (holding
that unions were not entitled to specific performance of collective bar-
gaining agreements after employees voted in Board-supervised elec-
tions to decertify the unions). According to the Regional Director, he
dismissed the election petition as moot simply because he had previ-
ously concluded that Stokes' refusal to bargain was based on a good-
faith doubt about the Union's majority status. Yet Stokes appears to
be saying that we must treat the Regional Director's dismissal as an
unassailable forecast that the Company would have won a formal,
Board-supervised election. But forecasts about who will win an elec-
tion are often wrong. In any event, the Regional Director did not ven-
ture beyond what had been established: Stokes' good-faith doubt of
the Union's majority. Good-faith doubt is not the same as the cer-
tainty of a formal vote. See Stokes Electrical, 1998 WL 568289, at *6.
Thus, the Regional Director's dismissal of the election petition was
not equivalent to decertification by election.3
D.
Finally, Stokes argues that enforcing the interest arbitration awards
would violate a fundamental policy underlying the NLRA, that is, the
policy of promoting the ability of workers to designate "representa-
tives of their own choosing." 29 U.S.C. § 151. Stokes' argument over-
looks another fundamental policy expressed in the NLRA, that of
"encouraging the practice and procedure of collective bargaining." Id.
One of the best ways to encourage collective bargaining is to allow
for the enforcement of contracts arrived at through collective bargain-
ing. As the Board said in Collier Electric: "our premise is that collec-
tive bargaining should be fostered and that when parties have
bargained for and reached an agreement, fairness requires that they be
allowed to enforce it." Collier Electric, 296 N.L.R.B. at 1098. The
_________________________________________________________________
3 We offer no opinion on what the result would have been in this case
if the Union had been decertified through an election.
13
interest arbitration clause in this case was agreed upon through collec-
tive bargaining at a time when the Union's majority status was not in
doubt. We believe that enforcing the clause as a matter of contract
promotes the NLRA's policy of encouraging the practice of collective
bargaining.
We are not unmindful of the section 7, 29 U.S.C. § 157, right of
Stokes' employees to choose their own representative. But here it was
Stokes, and not the employees, who filed the election petition. The
employees, of course, were always free to assert their section 7 right
by filing their own election petition under section 9(c). In the circum-
stances of this case, the policy of employee free choice does not over-
ride the policy of encouraging voluntary agreements through
collective bargaining. To put it more directly, we see nothing in the
policies behind the NLRA that keeps us from saying that Stokes must
abide by its agreements to submit to interest arbitration.
III.
We hold that Stokes is bound by the interest arbitration clause and
that the CIR's awards directing the Company to sign and implement
the new 1994-96 Agreements must be enforced. By holding that the
CIR's interest arbitration awards are enforceable, we are not con-
demning Stokes to a perpetual cycle of interest arbitration for new
labor agreements. As a contractual matter, the new 1994-96 Agree-
ments do not allow unilateral submission of issues to interest arbitra-
tion. By their terms the new Agreements require both parties to agree
to interest arbitration: "By mutual agreement only, the parties may
jointly submit the unresolved issues to the Council on Industrial Rela-
tions for the Electrical Contracting Industry for adjudication." In any
event, as a matter of law the new Agreements could not have pro-
vided for unilateral interest arbitration. Because an "interest arbitra-
tion clause is a non-mandatory subject of bargaining," parties may be
bound to such a clause in a future contract only by mutual consent.
Sheet Metal Workers Int'l Ass'n Local Union No. 420 v. Huggins
Sheet Metal, 752 F.2d 1473, 1475 (9th Cir. 1985).
We reverse the district court's entry of summary judgment in favor
of Stokes. We remand (1) for the entry of summary judgment in favor
of Local 666 (to the effect that Stokes was bound by the interest arbi-
14
tration clause), (2) for the enforcement of the CIR's awards directing
Stokes to sign and implement the 1994-96 Agreements, and (3) for
any further proceedings that are appropriate.
REVERSED AND REMANDED
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