Brian Trematore Plumbing & Heating, Inc. v. SHEET METAL WORKERS LOCAL UNION 25, SMART, On Appeal from the United States…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 24-1298
____________
BRIAN TREMATORE PLUMBING & HEATING, INC.,
Appellant
v.
SHEET METAL WORKERS LOCAL UNION 25, SMART,
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2:21-cv-05285)
District Judge: Honorable Brian R. Martinotti
____________
Argued on June 4, 2025
Before: HARDIMAN, BIBAS, and FISHER, Circuit Judges.
(Filed: August 1, 2025)
Dennis J. Alessi [Argued]
Mandelbaum Barrett
3 Becker Farm Road

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Suite 105
Roseland, NJ 07068
Counsel for Appellant
Raymond Baldino
Zazzali Fagella Nowak Kleinbaum & Friedman
570 Broad Street
Suite 1402
Newark, NJ 07102
Bennet D. Zurofsky [Argued]
24 Bowdoin Street
Maplewood, NJ 07040
Counsel for Appellee
___________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
In this labor law appeal, Brian Trematore Plumbing &
Heating, Inc. argues that it repudiated a collective bargaining
agreement (CBA) after it stopped employing bargaining-unit
employees. We hold that Trematore’s attempted repudiation
was ineffective, so the CBA remains in effect. We will
therefore affirm the District Court’s judgment.

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I
A
We begin by summarizing the National Labor Relations
Act (NLRA), which “encourag[es] the practice and procedure
of collective bargaining” to resolve “industrial disputes arising
out of differences as to wages, hours, or other working
conditions.” 29 U.S.C. § 151. The NLRA guarantees
employees “the right to self-organization, to form, join, or
assist labor organizations” and “to bargain collectively through
representatives of their own choosing.” Id. § 157.
This case concerns CBAs governed by two sections of
the NLRA: § 9(a) and § 8(f). Section 9(a) agreements arise
after a union “designated or selected for the purposes of
collective bargaining by the majority of the employees in a
unit” becomes “the exclusive representative[] of all the
employees in” that unit. 29 U.S.C. § 159(a); see also Sheet
Metal Workers’ Int’l Ass’n Loc. 19 v. Herre Bros., 201 F.3d
231, 240–41 (3d Cir. 1999) (discussing the formation of a CBA
under § 9(a)). It is an unfair labor practice for an employer “to
refuse to bargain collectively with” that union. 29 U.S.C.
§ 158(a)(5). “[N]either an employer nor a union governed by
§ 9(a) may unilaterally withdraw from” a “collective
bargaining agreement; instead, withdrawal is subject to
specific requirements.” Herre Bros., 201 F.3d at 239. Even
“[u]pon the expiration of a collective bargaining agreement,
the employer may not withdraw recognition of the union
unilaterally unless it has reasonable, good faith grounds for
believing that the union has lost its majority status.” Int’l Ass’n
of Bridge, Structural & Ornamental Iron Workers, Loc. 3 v.
NLRB, 843 F.2d 770, 772 (3d Cir. 1988).

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CBAs under § 8(f) operate differently. Often known as
“pre-hire agreements,” they entail an “employer engaged
primarily in the building and construction industry” making
“an agreement covering employees” who are—or “will be
engaged”—“in the building and construction industry with a
labor organization of which building and construction
employees are members.” 29 U.S.C. § 158(f). “Because the
union enjoys no presumption of majority status” under a pre-
hire agreement, “either party in a § 8(f) relationship is free to
unilaterally withdraw and avoid any obligation to bargain for a
successor contract upon the expiration of the collective
bargaining agreement.” Herre Bros., 201 F.3d at 239 (citation
modified). But once “the union has attained majority status, the
§ 8(f) prehire agreement is converted into a § 9(a) collective
bargaining agreement.” Laborers’ Int’l Union of N. Am., AFL-
CIO v. Foster Wheeler Energy Corp., 26 F.3d 375, 383 n.5 (3d
Cir. 1994).
On top of the particular attributes of CBAs formed
under § 8(f) and § 9(a), this appeal involves a principle known
as the “one-employee unit rule.” Though not explicitly codified
by statute or regulation, the NLRB has long recognized the
one-employee unit rule because the “principles of collective
bargaining presuppose that there is more than one eligible
person who desires to bargain.” Stack Elec., 290 NLRB 575,
577 (1988). So “an employer [who] employs one or fewer unit
employees on a permanent basis” can, “without violating
Section 8(a)(5) of the Act,” “withdraw recognition from a
union, repudiate its contract with the union, or unilaterally
change employees’ terms and conditions of employment
without affording a union an opportunity to bargain.” Id.; see
also Foreign Car Ctr., Inc., 129 NLRB 319, 320 (1960).
Several of our sister courts have held that the one-employee

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unit rule permits an employer to repudiate its statutory and
contractual obligations arising from CBAs under § 8(f). See,
e.g., Laborers Health & Welfare Tr. Fund v. Westlake Dev., 53
F.3d 979, 982–83 (9th Cir. 1995); J.W. Peters, Inc. v. Bridge,
Structural & Reinforcing Iron Workers, Loc. Union 1, 398 F.3d
967, 973–77 (7th Cir. 2005); Baker Concrete Constr., Inc. v.
Reinforced Concrete Contractors Ass’n, 820 F.3d 827, 830–33
(6th Cir. 2016). But no federal appellate court has held that the
one-employee unit rule permits repudiation of a CBA under
§ 9(a).
B
Trematore does plumbing work and heat, ventilation,
and air conditioning (HVAC) construction. In 2017, Trematore
was awarded a contract for plumbing and HVAC construction
at High-Tech High School in Secaucus, New Jersey. Before
starting the project, Trematore was required to execute a
project labor agreement recognizing Local 25 “as the sole and
exclusive bargaining representative[] of all craft employees
who” performed on-site sheet metal work. App. 147. This pre-
hire agreement—formed under § 8(f) of the NLRA—required
all construction to be performed by unionized workers, and it
prohibited Trematore from subcontracting sheet metal work to
non-Local 25 workers. When executing the June 1, 2015, to
May 31, 2018, CBA, Trematore’s president wrote on the
contract, “This agreement is for the Hudson County High Tech
School only!” App. 231.
After Trematore’s plumbers—who were represented by
the plumbers’ union—performed HVAC sheet metal work,
Local 25 filed a grievance asserting that the work should have
been done by its members. So Trematore began employing
Local 25’s members to do sheet metal fabrication and

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installation HVAC work in 2018. But in May 2018, Trematore
laid off four Local 25 members who had been working on the
project and hired twelve non-union sheet metal workers to
work on the project over a weekend. That prompted Local 25
to pursue another grievance and file an unfair labor practice
charge with the NLRB. Local 25 also filed a representation
petition with the NLRB, presenting signed cards to
demonstrate that a majority of Trematore’s sheet metal
workers supported the union.
To resolve the grievance and unfair labor practice
charge, Trematore executed another CBA on May 23, 2018,
which covered the period between June 1, 2015, to May 31,
2018. Unlike the prior CBA, this one did not purport to limit it
to the High-Tech High School project.
The CBA included automatic renewal by its
“evergreen” provision:
This Agreement . . . shall become effective on
the FIRST day of JUNE, 2015 and remain in full
force and effect until the THIRTY-FIRST day of
MAY, 2018 and shall continue in force from year
to year thereafter unless written notice of
reopening is given not less than ninety (90) days
prior to the expiration date. In the event such
notice of reopening is served, this Agreement
shall continue in force and effect until
conferences relating thereto have been
terminated by either party by written notice,
provided, however, that, if this agreement
contains Article X, Section 8, it shall continue in
full force and effect until modified by order of
the National Joint Adjustment Board or until the

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procedures under Article X, Section 8 have been
otherwise completed.
App. 300.
Article X, Section 8 required binding interest arbitration
of a successor agreement if direct negotiations between the
parties failed. And Trematore “waive[d] any right it may have
to repudiate this Agreement during the term of this Agreement,
or during the term of any extension, modification or
amendment of this Agreement.” Id.
Trematore also agreed that subcontractors would agree
in writing to comply with the CBA. And this time, Trematore
recognized that Local 25 represented a majority of its
employees within the bargaining unit. It also recognized “the
union as the exclusive collective bargaining agent for all
employees within that bargaining unit, on all present and future
job sites within the jurisdiction of the union” “until such time
as the union loses its status as the employees’ exclusive
representative as a result of an N.L.R.B. election requested by
the employees.” App. 302 (capitalization altered). Because
Local 25 demonstrated its majority status, this CBA was
governed by § 9(a) of the NLRA. See Herre Bros., 201 F.3d at
242. Trematore agreed that it would “not request an N.L.R.B.
election and expressly waive[d] any right it may have to do so.”
App. 302 (capitalization altered).
The labor peace effectuated by the May 23, 2018,
signing of the CBA was short lived. That agreement expired
eight days later and Trematore did not sign the CBA for June
1, 2018, to May 31, 2021, which was negotiated by a multi-
employer trade organization of which Trematore was not a
member. Nor did Trematore request to independently negotiate

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or engage in binding interest arbitration with Local 25 for a
subsequent CBA. Trematore nonetheless continued to directly
employ Local 25’s sheet metal workers until September 2018,
and it abided by the 2018/2021 CBA during that time. Since
September 2018, Trematore has not directly employed Local
25’s workers, however.
In May 2019, Local 25 sent Trematore a printed copy of
the 2018/2021 CBA. Trematore responded that it would not
sign the agreement because it had “made a managerial decision
that it will no longer bid for any work at any construction site
which is within the work jurisdiction provisions of Local 25’s”
CBA. App. 433. Local 25 replied that Trematore was bound to
the CBA because of the 2015/2018 CBA’s evergreen
provision.
In March 2020, Trematore was subcontracted to
perform plumbing and HVAC work at Felician University
Wellness and Recreation Center in New Jersey. That project
required sheet metal work and was within Local 25’s
jurisdiction. But Trematore subcontracted out all the HVAC
work—including sheet metal work—to a company that
employed non-union sheet metal workers in January 2021.
The next month, Local 25 served Trematore with
another grievance alleging that it violated the 2018/2021 CBA
by subcontracting sheet metal work during the Felician project
without the subcontractor agreeing to the CBA’s terms.
Trematore countered that it was not bound by the CBA because
(1) over two and a half years had passed since it had employed
Local 25’s members or performed any sheet metal work within
Local 25’s jurisdiction and (2) the 2015/2018 CBA had expired
on May 31, 2018. In response, Local 25 argued that Trematore

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was bound to the 2018/2021 CBA because of the 2015/2018
CBA’s evergreen provision.
In February 2021, Local 25 sent Trematore a letter
requesting negotiations for a 2021/2024 CBA. Trematore told
Local 25 that it was not obligated to negotiate because it was
not bound by an existing CBA. Local 25 rejoined that
Trematore was bound to the 2018/2021 CBA because of the
evergreen provision in the 2015/2018 CBA.
C
A few weeks after receiving the request to negotiate,
Trematore sued Local 25 in the United States District Court for
the District of New Jersey. It sought to enjoin Local 25 from
processing any grievances, proceeding to arbitration with
respect to Trematore, and demanding negotiations for a
successor CBA. Trematore also requested a declaration that
Local 25 is no longer the exclusive bargaining representative
for Trematore’s employees and that Trematore is not subject to
the 2015/2018 CBA or any successor agreements. In its
answer, Local 25 counterclaimed, requesting a declaration that
Trematore is bound by the 2018/2021 and 2021/2024 CBAs,
that Trematore improperly repudiated its CBA with Local 25,
and that Trematore improperly withdrew its § 9(a) recognition
of Local 25. Local 25 also requested a declaration that
Trematore must bargain with it and recognize its § 9(a) status.
Soon after Trematore filed this civil action, Local 25
filed an unfair labor practice charge with the NLRB. It alleged
that Trematore had violated the NLRA by (1) repudiating
Local 25’s exclusive representation status and its existing
contract, (2) refusing to proceed with arbitration concerning a

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pending grievance, and (3) refusing to negotiate a successor
agreement.
In 2023, the NLRB investigated Local 25’s unfair labor
practice charge and issued a complaint and notice of hearing
against Trematore. In January 2024, an Administrative Law
Judge held that Trematore “violated Section 8(a)(5) and (1) of
the Act by failing and refusing to bargain in good faith and
failing to continue in effect all the terms and conditions of the
parties’ 2015/2018 collective bargaining agreement by
subcontracting bargaining unit work.” App. 836.
Back in the District Court, the parties cross-moved for
judgment on a stipulated record. Also in January 2024, the
District Court denied Trematore’s motion for judgment on a
stipulated record and granted Local 25’s cross-motion. See
Brian Trematore Plumbing & Heating, Inc. v. Sheet Metal
Workers Loc. Union 25, Smart, 2024 WL 209039, *1 (D.N.J.
Jan. 19, 2024). The Court first held that it lacked jurisdiction
to award Trematore’s requested injunctive relief because it was
“beyond the Court’s jurisdiction under § 301” of the Labor
Management Relations Act (LMRA) and within the exclusive
jurisdiction of the NLRB. Id. at *11. The Court then held that
Trematore was bound by the CBA because of the evergreen
provision, reasoning that the one-employee unit rule does not
apply to CBAs formed under § 9(a). The Court also reasoned
that the “CBA contain[ed] provisions which unequivocally
waived Trematore’s right to repudiate the collective bargaining
agreements during their term, or during the term of any
extension, modification, or amendment.” Id. at *14. So
Trematore could not repudiate the CBA, and the Felician
grievance was therefore arbitrable. Trematore timely appealed.

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II
The District Court exercised jurisdiction under § 301(a)
of the LMRA, which confers jurisdiction over “[s]uits for
violation of contracts between an employer and a labor
organization.” 29 U.S.C. § 185(a). We have jurisdiction under
28 U.S.C. § 1291.
The parties cross-moved for judgment on a stipulated
record, so we review the District Court’s factual findings for
clear error and its legal conclusions de novo. See Consumer
Data Indus. Ass’n v. Frey, 26 F.4th 1, 5 (1st Cir. 2022).
III
Because we must ensure that the District Court had
jurisdiction over this matter, we begin by discussing the
interplay between the NLRA and § 301(a) of the LMRA.
A few additional provisions of the NLRA bear on the
District Court’s jurisdiction. Section 7 regulates employees’
rights to organize and engage in collective bargaining, and § 8
defines unfair labor practices by employers and unions. 29
U.S.C. §§ 157–58. Section 9(b) provides that the NLRB “shall
decide . . . the unit appropriate for the purposes of collective
bargaining.” Id. § 159(b). And Section 10 authorizes the
NLRB “to prevent any person from engaging in any unfair
labor practice . . . affecting commerce.” Id. § 160(a). The
NLRB’s jurisdiction is generally exclusive, so when “an
activity is arguably subject to § 7 or § 8 of the [NLRA], the
States as well as the federal courts must defer to the exclusive
competence of the” NLRB. San Diego Bldg. Trades Council,
Millmen’s Union, Loc. 2020 v. Garmon, 359 U.S. 236, 245

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(1959).
At the same time, § 301(a) of the LMRA confers
jurisdiction over “[s]uits for violation of contracts between an
employer and a labor organization representing employees in
an industry affecting commerce.” 29 U.S.C. § 185(a). This
“carve[s] out” an exception to the NLRB’s “exclusive
jurisdiction.” Vaca v. Sipes, 386 U.S. 171, 179 (1967). So when
“the activity in question also constitutes a breach of a
collective-bargaining agreement, the Board’s authority is not
exclusive and does not destroy the jurisdiction of the courts in
suits under § 301.” William E. Arnold Co. v. Carpenters Dist.
Council of Jacksonville & Vicinity, 417 U.S. 12, 16 (1974)
(citation modified). But in “many circuits, a party’s mere
assertion that a claim is contractual is not an automatic ticket
to federal court; rather, the court must examine the major issues
to be decided and determine whether they can be characterized
as primarily representational or primarily contractual.” Dist.
No. 1, Pac. Coast Dist., Marine Eng’r’s Beneficial Ass’n, AFL-
CIO v. Liberty Mar. Corp., 815 F.3d 834, 840 (D.C. Cir. 2016)
(citation modified).
Because this declaratory judgment action concerns an
alleged violation of a CBA, the District Court “retain[ed]
independent jurisdiction to decide” it under § 301(a). Mack
Trucks, Inc. v. Int’l Union, United Auto, Aerospace & Agr.
Implement Workers of Am., UAW, 856 F.2d 579, 585 (3d Cir.
1988). That jurisdiction enabled the District Court to decide
whether the one-employee unit rule permitted Trematore to
repudiate the CBA. See Textron Lycoming Reciprocating
Engine Div., Avco Corp. v. United Auto., Aerospace, Agric.
Implement Workers of Am., Int’l Union, 523 U.S. 653, 658
(1998) (stating that affirmative defenses as to why a contract is
invalid may also be adjudicated). And because “arbitration is a

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matter of contract,” the District Court also had jurisdiction to
determine whether the Felician grievance was arbitrable. See
United Steelworkers of Am. v. Warrior & Gulf Navigation Co.,
363 U.S. 574, 582 (1960).1
IV
Having determined that the District Court had
jurisdiction, we now consider whether Trematore effected a
valid repudiation of the CBA under the one-employee unit rule.
It did not. That is because, as the District Court concluded,
Trematore was bound by the CBA through its evergreen
provision. See Carpenters Health v. Mgmt. Res. Sys. Inc., 837
F.3d 378, 383 (3d Cir. 2016) (stating that courts “generally
regard evergreen clauses as creating a perpetual agreement that
can only be terminated with notice,” so “if neither party
terminates the contract, it will be renewed automatically”
(citation modified)). Trematore also “waive[d] any right it may
have to repudiate this Agreement during the term of this
Agreement, or during the term of any extension, modification
or amendment.” App. 300. And contrary to the evergreen
provision, Trematore did not send a written notice of reopening
to negotiate a successor agreement. So under the evergreen
provision, the CBA has continued to automatically renew each
1 Trematore argues that the District Court erred by holding that
it lacked jurisdiction to enjoin Local 25 from processing
grievances, proceeding to arbitration, and demanding
negotiations for a successor agreement on the ground that this
relief would interfere with the NLRB’s exclusive jurisdiction
over primarily representational matters. We need not reach
these arguments, however, because the District Court properly
exercised jurisdiction while holding that the CBA remains in
effect, so Trematore is not entitled to injunctive relief.

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year. That said, Trematore argues that its correspondence with
Local 25 in May 2019 and February 2021 repudiated the CBA
under the one-employee unit rule. We disagree.
The parties dispute whether the one-employee unit rule
applies to CBAs formed under § 9(a). But we need not decide
that novel question because the CBA’s non-repudiation and
binding interest arbitration clauses “represent the parties’
agreement to negotiate a renewal agreement, and, if no
agreement is forthcoming, to submit their dispute to the
[National Joint Adjustment Board] for interest arbitration,” so
repudiation is inappropriate. Am. Metal Prods., Inc. v. Sheet
Metal Workers Int’l Ass’n Loc. Union No. 104, 794 F.2d 1452,
1455 (9th Cir. 1986). So even if we were to recognize the one-
employee unit rule in the context of a CBA under § 9(a),
Trematore could not use it to repudiate the CBA here. See id.
at 1454–55 (rejecting repudiation under the one-employee unit
rule when there was an interest arbitration clause).
Trematore has not cited—nor have we found—any case
where the one-employee unit rule vitiated a non-repudiation
clause or a binding interest arbitration clause.2 At best, the
cases Trematore cites are distinguishable because they held
that an employer’s repudiation was effective even though it
was untimely under the CBA. See, e.g., Baker, 820 F.3d at 829,
833; J.W. Peters, 398 F.3d at 969–70, 977. So we hold that
2 The records of J.W. Peters and Baker Concrete show that
those CBAs did not have a non-repudiation clause or an
interest arbitration clause and that they explicitly permitted
repudiation. See J.W. Peters, 398 F.3d at 969–70; J.W. Peters,
Dist. Ct. Dkt. No. 1:04-cv-2932, ECF No. 1-1 (N.D. Ill. 2004);
Baker Concrete, 820 F.3d at 829; Baker Concrete, Dist. Ct.
Dkt. No. 1:13-cv-225, ECF No. 1-2 (S.D. Ohio 2013).

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Trematore’s repudiation was ineffective.
Purporting to rely on the CBA’s “clear and
unambiguous” language, our dissenting colleague reasons that
Trematore’s February 2021 correspondence terminated the
CBA on May 31, 2021. Dissent at 1 (citation modified). That
is misguided. Under the evergreen provision, the CBA “shall
continue in force from year to year thereafter unless written
notice of reopening is given not less than ninety (90) days prior
to the expiration date.” App. 300 (emphasis added). And, as
our dissenting colleague concedes, Trematore “undisputedly
did not give written notice of reopening, so the CBA remained
in force from year to year.” Id. (citation omitted). Even if
Trematore’s February 2021 correspondence somehow
qualified as a notice of reopening, the CBA further provides
that “it shall continue in full force and effect until modified by
order of the National Joint Adjustment Board or until the
[binding interest arbitration] procedures under Article X,
Section 8 have been otherwise completed.” Id. As the Tenth
Circuit has explained, these “provisions create a duty on behalf
of each party to negotiate and, in the absence of agreement,
obligates them to accept the decision of the [National Joint
Adjustment Board].” Sheet Metal Workers’ Int’l Ass’n, Loc.
Union No. 2 v. McElroy’s, Inc., 500 F.3d 1093, 1098 (10th Cir.
2007).
As our sister court succinctly stated, the upshot is this:
“one party’s notice of intent to ‘terminate’ the agreement on
expiration does not affect the parties’ contractual obligations
thereunder.” Id. Because Trematore did not serve a notice of
reopening, the CBA remains in effect under the “clear and
unambiguous” language of the evergreen provision. Dissent at
1 (citation modified).

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V
Having held that the CBA remained in effect, we now
turn to whether the Felician grievance is arbitrable. To make
that determination, we consider (1) whether this dispute
“come[s] within the scope of the arbitration clause”;
(2) whether “any other provision of the contract expressly
exclude[s]” the dispute from arbitration; and (3) whether there
is “any other forceful evidence indicating that the parties
intended such an exclusion.” United Steelworkers of Am., AFL-
CIO-CLC v. Rohm & Haas Co., 522 F.3d 324, 331 (3d Cir.
2008) (citation modified). All three requirements are satisfied.
The parties agreed that Trematore would not
subcontract bargaining unit work unless the subcontractor
agreed in writing to comply with the CBA, and they established
an arbitration procedure to resolve “grievances arising out of
interpretation or enforcement of” the CBA. App. 296. The
CBA does not expressly exclude this dispute from arbitration,
and no evidence suggests that the parties intended to exclude
it. So we hold that the Felician grievance is arbitrable.
* * *
For these reasons, we will affirm the District Court’s
judgment.

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1
Brian Trematore Plumbing & Heating, Inc. v. Sheet Metal
Workers Local Union 25, SMART, No. 24-1298
FISHER, Circuit Judge, dissenting in part.
I agree with the majority that we have jurisdiction.
However, unlike the majority, I would hold the CBA is no
longer in force. Trematore waived the right to repudiate during
the CBA’s term, not in perpetuity. Trematore gave notice in
February 2021 that it was repudiating under the one-employee
unit rule, and this repudiation took effect at the end of the term
on May 31, 2021. This begs the question of whether Trematore
could invoke the one-employee unit rule to repudiate a § 9(a)
CBA. Some courts, including the District Court in this case,
have held the rule applies only to § 8(f) pre-hire agreements.
But I see no reason to limit the rule to one kind of agreement
or the other, so I would hold that it applies here and would
reverse the District Court judgment to the extent it rules that
Trematore continues to be bound by the CBA.
CBAs are interpreted “according to ordinary principles
of contract law,” M & G Polymers USA, LLC v. Tackett, 574
U.S. 427, 435 (2015), and “as with any other contract, the
parties’ intentions control,” id. (quoting Stolt–Nielsen S.A. v.
AnimalFeeds Int’l Corp., 559 U.S. 662, 682 (2010)). If the
CBA is “clear and unambiguous, its meaning is to be
ascertained in accordance with its plainly expressed intent.” Id.
(quoting 11 R. Lord, Williston on Contracts § 30:6, p. 108 (4th
ed. 2012)). Here, the CBA’s meaning is clear, so it should be
interpreted according to its plain language.
The CBA was effective from June 1, 2015 to May 31,
2018. Its evergreen clause provided that it would “continue in
force from year to year thereafter unless written notice of
reopening [was] given.” App. 300. Trematore undisputedly did
not give written notice of reopening, so the CBA remained in
force “from year to year,” id.—that is, from June 1, 2018 to

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May 31, 2019; from June 1, 2019 to May 31, 2020; and so on.1
In other words, the plain language of the evergreen clause did
not provide for an indefinite continuous term. It provided for a
series of terms, each of which had a defined beginning and a
defined expiration. The non-repudiation clause provided that
Trematore “waive[d] any right it may have to repudiate this
Agreement during the term of this Agreement, or during the
term of any extension, modification or amendment of this
Agreement.” Id. (emphasis added).
But the non-repudiation clause’s plain language did not
prohibit repudiation at the end of a term. There was a point, as
each term or extension expired, when Trematore could
repudiate. In 2021, Trematore took advantage and permissibly
repudiated, as I now explain. In February 2021, in anticipation
of the May 31, 2021 expiration date, Local 25 sent Trematore
a letter asking to open negotiations for a 2021/2024 CBA.
Trematore responded that it had not employed Local 25
members or done sheet metal work in two and a half years, so
it did not believe itself bound by the 2018/2021 CBA—
including the requirement to negotiate a new CBA.
Thus, Trematore provided notice of repudiation at a
reasonable time: about ninety days before the CBA’s
expiration and at the point when Local 25 asked to begin
negotiating. I would hold that this repudiation became effective
on May 31, 2021—not “during the term” of the CBA
extension, which was prohibited, App. 300, but at the end of
the term.
My conclusion that Trematore’s repudiation was
permitted under the CBA necessarily begs the question of
1 Throughout this litigation, the parties have assumed
that the CBA extended in three-year increments. But that is not
what the evergreen clause says.

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whether repudiation was permitted under the law. The District
Court held that the one-employee unit rule permits repudiation
only of § 8(f) construction-industry pre-hire agreements, not
§ 9(a) agreements like the one here. App. 28–29. I disagree.
“[T]he principle of collective bargaining” embodied in
the NLRA “presupposes that there is more than one eligible
person who desires to bargain.” Foreign Car Ctr., Inc., 129
NLRB 319, 320 (1960); see also Baker Concrete Const., Inc.
v. Reinforced Concrete Contractors Ass’n, 820 F.3d 827, 831
(6th Cir. 2016), and J.W. Peters, Inc. v. Bridge, Structural &
Reinforcing Iron Workers, Loc. Union 1, AFL-CIO, 398 F.3d
967, 973–74 (7th Cir. 2005), as amended (Mar. 28, 2005) (both
citing Foreign Car, 129 NLRB at 320). The NLRA’s
collectivity principles are not articulated in § 8(f). Rather, they
appear in other sections of the statute that govern all CBAs,
§ 8(f) and § 9(a) alike. See, e.g., 29 U.S.C. § 157 (“Employees
shall have the right . . . to bargain collectively . . . .”); id.
§ 159(a) (“Representatives . . . selected . . . by the majority of
the employees in a unit . . . shall be the exclusive
representatives of all the employees in such unit . . . .”).
Indeed, as Trematore emphasizes on appeal, Foreign Car—a
foundational one-employee-unit rule case—did not involve a
§ 8(f) agreement.
Since Foreign Car, the NLRB has permitted
repudiation of § 9(a) agreements under the one-employee unit
rule. See, e.g., Owens-Corning Fiberglas Corp., 140 NLRB
1323, 1326, 1332 (1963); Stern Made Dress Co., 218 NLRB
372, 372, 378 (1975); see also Bozeman Deaconess Found.,
322 NLRB 1107, 1117 & n.9 (1997) (stating that the rule
would have applied, except the bargaining unit actually
consisted of more than one employee). At least one federal
court has also permitted repudiation of a § 9(a) CBA under the
one-employee unit rule. See Motion Picture Projectionists &

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Video Technicians, Loc. 110 v. Fred Corp., 845 F. Supp. 1255,
1259–60 (N.D. Ill. 1994). And no federal court has expressed
a cogent, persuasive rationale for limiting the rule to § 8(f)
agreements. The NLRA’s principles of collectivity apply in all
settings, not just in the construction industry and not just where
there is a pre-hire agreement.
The majority holds that Trematore’s repudiation was
ineffective because the CBA obligated the parties to negotiate
a renewal agreement. The majority adds that it has found no
case where the one-employee unit rule was held to permit
repudiation of a CBA with a non-repudiation clause or an
interest arbitration clause.2 But not all one-employee unit rule
cases describe the relevant CBA in any depth. See, e.g.,
Laborers Health & Welfare Tr. Fund for N. Cal. v. Westlake
Dev., 53 F.3d 979, 981 (9th Cir. 1995) (recounting only that
the CBA “establishes, inter alia, wages, hours and working
conditions, and requires Westlake to make fringe benefit
contributions to the Trust Funds on behalf of employees
covered by the agreement, and further binds Westlake to the
provisions of the Trust Agreements”).
While we cannot know the details of the CBAs in all the
relevant cases, we do know that our sister courts have held that
when the one-employee unit rule is properly invoked, “all of
[the] statutory and contractual obligations under the CBA [are]
terminated.” Baker, 820 F.3d at 831; see also J.W. Peters, 398
F.3d at 974 (the one-employee unit rule permits an employer
to “discontinue its duties under the agreement”); Westlake, 53
F.3d at 984 (holding the one-employee unit rule applied and
“[t]he CBA in this case is therefore void”). So, in my view, the
2 An interest arbitration clause provides that if the
parties cannot reach agreement on a new CBA, they must enter
arbitration pursuant to which a new contract will be imposed.

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fact that the CBA here contained non-repudiation and interest
arbitration clauses is not a bar to invocation of the one-
employee unit rule.
For these reasons, I would hold that Trematore’s refusal
to negotiate a new CBA was permissible under both the
applicable CBA and the law. I dissent from that portion of the
majority opinion. As for the Felician grievance, Trematore
committed the alleged unfair labor practice in May 2020 while
the 2018/2021 CBA was still in effect. Therefore, I join the
portion of the majority opinion holding that this grievance is
arbitrable.

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