COLLYER INSULATED WIRE

National Labor Relations Board - Board Decisions

Aug 20, 1971

192 N.L.R.B. 837 (N.L.R.B. 1971)

COLLYER INSULATED WIRE 837
Collyer, Insulated Wire, A Gulf and Western Systems
- Co. , and Local Union 1098, International Brother-
hood, of Electrical - Workers, AFL-CIO. Case
1-CA-6916 - -
August 20, 1971
DECISION AND ORDER
On September -9, 1970, Trial Examiner James M.
Fitzpatrick issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner' also found that Respondent had not
engaged in certain other unfair labor,practices'and
recommended dismissal of those allegations of the
complaint: `They"eafter, the Respondent and the
General Counsel each filed exceptions to the Trial
Examiner's= ' Decision and a supporting brief.
The Nationall Labor Relations Board has reviewed
the rulings' of the Trial Examiner made at the hearing
and finds that no prejudicial error .was committed.
The-'rulings are hereby affirmed. The Board has
considered the Trial Examiner's Decision, the excep-
tions and ' briefs, and` the entire' record in this case,
and finds `merit in certain of Respondent's excep-
tions. Accordingly, ' we adopt the Trial Examiner's
findings,, conclusions,,and- recommendations only to
the extent consistent with our Decision herein.
The complaint,., alleges and the General Counsel
cointends.',that', Respondent violated Section 8(a)(5)
and (1) 'of the ' National Labor 'Relations 'Act, as
amended, by making assertedly unilateral changes in
certain wages and working conditions. Respondent
contends that -its authority to make those changes
was sanctioned by the collective-bargaining contract
between the parties and their course of dealing under
that contract. Respondent further contends'that any
of its .actions in excess- of contractual authorization
should properly have been remedied by grievance
and .arbitration proceeding, as provided in the
contract.' We, agree with Respondent's contention
that"this ,dispute is essentially a dispute over the
terms and meaning` of the contract between the
Union and the Respondent. 'For that reason, we find
merit in Respondent's exceptions that the dispute
should have been resolved pursuant to the contract
and ' we shall dismiss the complaint.
1. THE ALLEGED UNILATERAL CHANGES
Respondent manufactures insulated electrical wir-
ing at its plant in Lincoln, Rhode Island. The Union
has represented Respondent's production and main-
192 NLRB No. 150
tenance employees under successive contracts since
1937. The contract in effect when this dispute arose
resulted from, lengthy negotiations commencing in
December 1968 and concluding with the,execution of
the contract of September 16, 1969. The contract was
made effective from April 1, 1969, until July 2, 1971.
Respondent's production employees have histori-
cally been compensated on an -incentive basis. The
contract provides for, a job evaluation plan and for
the adjustment of rates,. subject to the grievance
procedure, during the term of the contract. Through-
out the bargaining relationship, Respondent has
routinely made adjustments in incentive rates, to
accommodate new or changed production methods.
The contract- establishes= nonincentive rates for
skilled maintenance tradesmen. but provides for
changes in those ratess, also, pursuant to the job
evaluation plan, upon changes,in aor additions to the
duties of the classifications. The central issue here is
whether these contract provisions permitted certain
midcontract wage rate changes which Respondent
made in November 1969.
A. The Rate Increase for Skilled Maintenance
Tradesmen
Since early 1968, Respondent's wage rates for
skilled tradesmen have not been sufficiently high to
attract and retain the numbers of skilled mainte-
nance mechanics and electricians required for the
efficient operation of the plant. -The record clearly
establishes, and the.Trial Examiner found, that other
employers in the same' region paid "substantially
higher rates than those paid by Respondent "' In
consequence, the number- of skilled' maintenance
workers had declined from about 40 in January 1968
to about 30, in mid-1969, and Respondent' had been
unable to attract employees to fill the resulting
vacancies. -
During negotiations, Respondent several times
proposed wage raises for maintenance employees
over and above those being negotiated for the
production and maintenance unit generally. The
Union rejected those proposals an&the contract did
not` include ' any provision for such raises . It is clear,
nevertheless, that the matter of the, "skill -factor"
increase- was left open, in some measure, for further
negotiations after the execution of the agreement.
The parties sharply dispute, however, the extent to
which the matter remained open and ,the conditions
which were to surround further - discussions. The
Union asserts, and the Trial Examiner found, that
the Union was willing, and made' known its willing-
ness, to negotiate further wage adjustments only=on a
plantwide basis, consistent with the job evaluation
system. Respondent insists that it understood the
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's position to be that wage increases for
maintenance employees only might still be agreed to
by, the Union after the signing of the contract, if such
increases could be justified under the job evaluation
system.
At monthly meetings following conclusion of the
contract negotiations , Respondent and the Union
continued to discuss the Respondent's desire to raise
the rates for maintenance employees . Finally, on
November 12, 1969, Respondent informed the Union
that 5 days thence, on November 17, Respondent
would institute an upward adjustment of 20 cents per
hour. The Union protested and restated its desire for
a reevaluation of all jobs in the plant . Respondent's
representative agreed to consider such an evaluation
on a plantwide basis, upon union agreement to the
increase for the skilled tradesmen. The Trial Examin-
er found that the Union did not agree. The rate
increase became effective November 17, 1969.
B. Reassignment of Job Duties
One of the production steps, the application of
insulating material to conductor , is accomplished
through the operation of extruder machines. The
insulating material, in bulk , is forced to and through
the extruder die by a large worm gear . Each change
in the type of insulation used on an extruder requires
that the worm gear be removed and cleaned of
insulation remaining from the previous production
run. The removal, cleaning, and replacement of the
worm gear is performed approximately once each
week and requires approximately 40 minutes to 1
hour for each operation. Prior to November 12, 1969,
the worm gear removal and cleaning had been
performed by a team of two maintenance
machinists .' On November 12, Respondent directed
that future worm gear removals would be performed
by a single maintenance machinist with the assist-
ance of the extruder machine operator and helper.
C. Rate Increases for Extruder Operators
Respondent's third change, also effective Novem-
ber 17, 1969, produced a rate increase for extruder
operators. It had been Respondent's practice to
adjust the straight time earnings of extruder opera-
tors by a factor representing the amount of time
during an 8-hour shift when the extruder was in
continuous operation . Under that system, for exam-
ple, an operator who maintained his machine in
continuous operation for 8 hours was paid 'for 10
hours' work. This incentive factor has never been
fixed by the contract and Respondent had, in the
past, changed the rate for various reasons. This
system of compensation operated somewhat to the
detriment of first- and third -shift employees in that
third-shift employees incurred the nonproductive
time required to shut down production at the end of
each week, and the first-shift employees incurred that
required for starting operations each Monday. That
perceived inequity had stimulated numerous union
requests for adjustment . Respondent sought to
obviate this problem by computing the operating
time on a weekly basis for each machine, determin-
ing the average incentive factor for all three shifts,
and computing pay from that average . In making this
change , Respondent gave the assurance that no
operator would, suffer any loss of pay by virtue of the
revision . This was accomplished , in part, by raising
the previous maximum 10 .0 incentive factor to a
range of from 10.3 to 10.6 hours' pay for continuous
operation.
Another adjustment in computation related to a
pair of extruder machines which were equipped with
dual extruder heads so that each machine performed
a dual insulation function. Respondent had previous-
ly paid a 5-percent premium to operators of these
machines . On November 17, this premium was
adjusted upward to 7-1/2 percent.
Finally, on February 16, 1970, in response to
another complaint by the Union , Respondent restud-
ied the rate on two extruders, pursuant to its
contractual duty, and raised the incentive factor for
those machines from 10.3 to 10 .5 pay hours.
II. RELEVANT CONTRACT PROVISIONS
The contract now in effect between the parties
makes provision for adjustment by Respondent in
the wages of its employees during the contract term.
Those provisions appear to contemplate changes in
rates in both incentive and nonincentive jobs. Thus,
article IX, section 2, provides:
The Corporation agrees to establish rates and
differentials of pay for all employees according to
their skill, experience and hazards of employ-
ment, and to review rates and differentials from
time to time. The Corporation agrees to pay all
operators their average earnings for samples and
unusual processes ; untimed portions of already
rated jobs will be paid for at an allowed pay hour
of 8.8 and adjustment in pay will be made after
the rate is fully established. It is agreed that
untimed portions of already rated jobs will be
studied within a maximum of one work week. In
the event that this time limit is not met, the
worker will receive his average hourly rate
starting as of the first day. However, no change in
the general scale of pay now in existence shall be
1 The Respondent had reassigned this work from operators to
machinists several years earlier without opposition from the Union.
COLLYER INSULATED WIRE 839
made during the term of this Agreement. This
Article IX is applicable to the general-wage scale,
but shall not be deemed to prevent adjustments in
individual rates from time to time to remove
inequalities or for other proper reasons.
Further evidence of the contractual intent to
permit Respondent to modify job rates subject to
review through the grievance and arbitration proce-
dures is found in article XIII,'section,3, paragraph b,
covering new, or changed, jobs. That paragraph
provides that the Union shall have 7 days to consider
any, new rating established by the Company and to
submit objections Thereafter, even absent Union
agreement, it vests in the Company authority to
institute anew pay rate. The Union, if dissatisfied,
may then challenge the _ propriety of the rate by
invoking the, grievance ,procedure which culminates
in arbitration.
Finally, the breadth of the arbitration provision
makes clear that the parties intended to make the
grievance and arbitration machinery- the exclusive
/forum for resolving contract disputes. By article IV
of the contract the parties agree that the grievance
machinery "shall be adopted for any complaint or
dispute . . . which may arise between any employee
or group of employees and the Corporation. . . ."
That intent is further evidenced by the no-strike, no-
lockout provision, article XI, which declares, in part:
"All questions, disputes or controversies under this
Agreement shall be- settled and determined solely
and exclusively by the conciliation and arbitration
procedures provided in this Agreement.... " A
grievance is defined as any-controversy between an
employee and his supervisor or any controversy
between the Union- and the Respondent involving
"the interpretation, application or violation of any
provision of thisagreement or supplement thereto."
The arbitration clause, article V, provides that "`any
grievance" may be submitted to an impartial arbitra-
tor for decision and that the decision of the arbitrator
"shall be final and binding upon the parties" if not
contrary to law.
The full text of articles IV, V, IX, XI, and XIII is
contained in the Appendix.
III. THE TRIAL EXAMINER 'S DECISION
The Decision of the Trial Examiner reviews in
careful detail the Respondent 's actions which gave
rise to this proceeding . He finds that the subject of
the skill factor increase for maintenance tradesmen
was discussed at-September and October meetings
and that Respondent's decision to grant -such an
increase was announced on November 12. The Trial
Examiner found that despite these discussions, the
Union did not accede to the proposed change. He
further found that the contract did not authorize
Respondent to act unilaterally in the,matter and that
by so acting Respondent had sought to escape from
the basic wage framework established in the con-
tract. This, the Trial Examiner concluded, had been
in violation of Section 8(a)(5).
In considering the reassignment of duties related to
the worm gear removal, the Trial Examiner found
that the Employer's actions were not sanctioned by
the contract and had not been made the subject of
bargaining between the Union- and the Employer.
Accordingly, he found that, in this respect also,
Section 8(a)(5) had been violated.
Concerning changes in the computation of incen-
tive rates of extruder operators, the Trial Examiner
found that the matter had been discussed at two of
the three meetings and concluded that-the contract
and - practice under, it sanctioned, Respondent's
action. He found, in addition, that the,Union had
available grievance mechanisms to compel further
bargaining if desired or, alternatively, that bargain-
ing had occurred in fact.
IV. DISCUSSION-
We find merit in Respondent 's exceptions that
because this dispute in its entirety arises from the
contract between the parties, and from the parties'
relationship under the contract; it ought to be
resolved in the manner which that contract pre-
scribes. We conclude that the Board is vested with
authority to withhold its processes in this case, and
that the contract here made available a quick and
fair means for the resolution of this dispute includ-
ing, if appropriate, a fully effective remedy for any
breach of contract which occurred. We conclude, in
sum, that our obligation to advance the purposes of
the Act is best discharged by the dismissal of this
complaint.
In our view, disputes such as these can better be
resolved by arbitrators with special skill and experi-
ence in deciding matters arising under established
bargaining relationships than by the application by
this Board of a particular provision of our statute.
The necessity for such special skill and expertise is
apparent upon examination of the issues arising from
Respondent's actions with respect to the -operators'
rates, the skill factor increase , and the reassignment
of duties relating -to the worm gear removal. Those
issues include, specifically:- {a)' the extent to which
these actions were intended to be reserved''to the
management, subject to later adjustment by griev-
ance and arbitration; (b) the extent to which the skill
factor increase should properly be construed, under
article IX of the agreement, as a "change in the
general scale of'pay" or, conversely, as "adjustments
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in individual rates . . . to remove inequalities or for
other proper reason"; (c) the extent, if any, to which
the procedures of article XIII governing new or
changed jobs and job rates should have been made
applicable to the skill factor increase here; and (d)
the extent to which any of these issues may be
affected by the long course of dealing between the
parties. The determination of these issues, we think,
is best left to discussions in the grievance procedure
by the parties who negotiated the applicable provi-
sions or, if such discussions do not resolve them, then
to an arbitrator chosen under the agreement and
authorized by it to resolve such issues.
The Board's authority, in its discretion, to defer to
the arbitration process has never been questioned by
the courts of appeals,2 or by the Supreme Court .3
Although Section 10(a) of the Act clearly vests the
Board with jurisdiction over conduct which consti-
tutes a violation of the provisions of Section 8,
notwithstanding the existence of methods of
"adjustment or prevention that might be established
by agreement," nothiAg in the Act intimates that the
Board must exercise jurisdiction where such methods
exist. On the contrary in Carey v. Westinghouse
Electric Corporation, 375 U.S. 261, 271 (1964), the
Court indicated that it favors our deference to such
agreed methods by quoting at length with obvious
approval the following language from the Board's
decision in International Harvester Co.: 4
There is no question that the Board is not
precluded from adjudicating unfair labor practice
charges even though they might have been the
subject of an arbitration proceeding and award.
Section 10(a) of the Act expressly makes this
plain, and the courts have uniformly so held.
However, it is equally well, established that the
Board has considerable discretion to respect an
arbitration award and decline to exercise its
authority over alleged unfair labor practices if to do
so will serve the fundamental aims of the, Act.
The Act, as has repeatedly been stated, is
a Indeed , some courts have gone so far as to hold that the Board is
required, in certain circumstances , to defer to the arbitration process. See,
e.g., Sinclair Refining Company v. N.LR.B., 306 F.2d 569 (C.A. 5); Timken
Roller Bearing Co. v. N.LR.B., 161 F.2d 949 (C.A. 6).
S Our dissenting colleague 's reliance on Amalgamated Assn. of Sheet,
Electric Railway & Motor Coach Employees v. Lockridge, 403 U.S. 274, is
misplaced . In the first place , that case , unlike this one, did not involve any
issue of interpretation or application of a collective -bargaining contract.
The dissent herein apparently overlooks that part of the opinion wherein the
court specifically noted that the enforcement of collective-bargaining
agreements was not an area preempted even by Federal law. Further, the
Supreme Court also noted that a specific exemption from preemption might
"arise where the Board affirmatively indicates that , in its view, pre-emption
would not be appropriate ." For the reasons stated herein , we view this as
such a case.
138 NLRB 923 , 925-926, enfd . sub nom. Ramsey v. N.LR.B., 327 F.2d
784 (C.A. 7), cert . denied 377 U.S. 1003 . In enforcing the Board 's decision,
primarily designed to promote industrial peace
and stability by encouraging the practice and
procedure of collective bargaining. Experience
has demonstrated that collective-bargaining
agreements that provide for final and binding
arbitration of grievance and disputes arising
thereunder, "as a substitute for industrial strife,"
contribute significantly to the attainment of this
statutory objective. [Emphasis supplied.]
In an earlier case, Smith v. Evening News Assn.5 the
Supreme Court had likewise observed that, "the
Board has, on prior occasions, declined to exercise its
jurisdiction to deal with unfair labor practices in
circumstances where, in its judgment, federal labor
policy would best. be served by leaving the parties to
other processes of law'." As in Carey v. Westinghouse,
the decision carries a clear implication that the Court
approved the informed use of such discretion.
The policy favoring voluntary settlement of labor
disputes through arbitral processes finds specific
expression in Section 203(d) of the LMRA, in which
Congress declared:
Final adjustment by a method agreed upon by
the parties is hereby declared to be the desirable
method for settlement of grievance disputes
arising over the application or interpretation of an
existing collective-bargaining agreement.
And, of. course, disputes under Section 301 of the
LMRA called forth from the Supreme Court'the
celebrated affirmation of that national policy, in the
Steelworkers trilogy .6
Admittedly, neither Section 203 nor Section 301
applies specifically to the Board. However, labor law
as administered by the Board does not operate in a
vacuum isolated from other parts of the Act, or,
indeed, from other acts of Congress.7 In fact, the
legislative history suggests that at the time the Taft-
Hartley amendments were being considered, Con-
gress anticipated that the Board would "develop by
rules and regulations , a policy of entertaining under
these provisions only such cases . . . as cannot be
the Seventh Circuit stated at p. 787, "Thus, the'Supreme Court has held that
the Board has the discretion to defer to the decision of an arbitrator." As
indicated, the Supreme Court denied certiorari.
5 373 U .S. 195, 198.
6 United Steelworkers of America v. American Manufacturing Co., 363
U.S. 564; United Steelworkers of America v. Warrior & Gulf Navigation
Company, 363 U.S. 574; United Steelworkers of America v. Enterprise Wheel
& Car Corporation, 363 U.S. 593 (1960).
7 "IT ]he Board has not been commissioned to effectuate the policies of
the Labor Relations Act so single-mindedly that it may wholly ignore other
and equally important Congressional objectives. Frequently the entire scope
of Congressional purpose calls for careful accommodation of one statutory
scheme to another, and it is not too much to demand of an administrative
body that it undertake this accommodation without excessive emphasis
upon its immediate task." Southern Steamship Company v. N.LR.B., 316
U.S. 31, 47 (1942).
COLLYER INSULATED WIRE
settled by resort to the machinery established by the
contract itself, voluntary arbitration...: ' 8
The -question whether the Board should withhold
its process arises,, of course, only when a set of facts
may present not only an alleged violation of the Act
but also, an alleged breach of the collective-bargain-
ing agreement subject to arbitration. Thus, this case
like each such case compels- an accommodation
between, on the ,one, hand, the statutory policy
favoring the fullest use of collective bargaining and
the arbitral process and, on the other, the statutory
policy favoring the fullest use of collective bargaining
and the arbitral process, and, on the other, the
statutory policy reflected by Congress' grant to the
Board 'of ' exclusive jurisdiction to prevent unfair
labor practices.
We address'ihe accommodation required here with
the benefit of 'the' Board's full history of such
aecommodations"in- similar cases. From the start the
Board has, case by case, 'both asserted jurisdiction
and declined, as the balance was struck on particular
facts and at various stages in the long ascent of
collective -bargaining to its present state of wide
acceptance. Those cases reveal that the Board has
honored the' distinction ° between two broad but
distinct classes of cases, those in which there has
been an arbitral award, and those in which there has
not.
In the former class of cases the Board has' long
given hospitable acceptance to the arbitral process.
In Timkenf Roller ` Bearing Company, 9 the Board
refrained from exercising jurisdiction, in deference to
an arbitrator's decision, despite the fact that the
Board would otherwise have found that an unfair
labor practice had been committed. The Board
explained "[I]t would not comport with the sound
exercise of our administrative discretion to permit
the Union to seek redress under the Act after having
initiated arbitration proceedings which, at the Un-
ion's request, ,resulted in, a determination, upon the
merits." Id at 501. The Board's policy was refined in
Spielberg Manufacturing Company,10 where the
Board. established the now settled rule that it would
limit its inquiry, in the presence, of an arbitrator's
award, to whether the procedures were fair, and the
results not repugnant to the Act.
In those cases in which no award had issued, the
Board's guidelines, have been less clear. At times the
Board has dealt with the unfair labor practice, and at
other times it has left the parties to their contract
8 S. Rep . No. 105, 80th Cong.,'1st Sess. 23; Leg. 151st. of the LIMA 1947,
p. 429.
9- 70 NLRB 500.
1U 112 NLRB 1080, 1082.
11 47 NLRB 694, enfd. in pertinent part 141 F2d 785 (C.A. 9).
12 See, e.g., McDonnell Aircraft Corporation, 109 NLRB 930; Bemis
841
remedies. In an early case, Consolidated Aircraft
Corporation, 11 the Board, after pointing out that the
charging party had -failed to utilize the grievance
procedures, stated:
[I ]t will not effectuate the statutory policy of
encouraging the practice and procedure of collec-
tive bargaining for the Board to "assume the role
of , policing collective contracts between employ-
ers and labor organizations by attempting to
decide whether disputes as to .the meaning and
administration of such contracts constitute unfair
labor practices under the Act. On the .contrary,
we believe that parties to collective contracts
would thereby be encouraged to abandon their
efforts to dispose of disputes under the contracts
through collective bargaining or through the
settlement procedures mutually agreed upon by
them, and to remit the interpretation and admin-
istration of their contracts to the Board. We
therefore do not deem it wise to exercise our
jurisdiction in such a case, where the parties have
not exhausted their rights and remedies under the
contract as to which, this dispute has arisen.
The Board has continued to apply the doctrine
enunciated in Consolidated Aircraft„ although not
consistently.12
Jos. Schlitz Brewing . Company, 13 is , the most
significant recent case in which the Board has
exercised its discretion to defer. The underlying
dispute in Schlitz was strikingly similar to the one
now before us. In Schlitz the respondent employer
decided to halt its production line during employee
breaks. That decision was a departure from an
established practice of maintaining extra employees,
relief men, to fill in for regular employees during
breaktime. The change resulted in, among other
things, elimination of the relief man job classifica-
tion. The change elicited a union protest leading to
an unfair labor practice proceeding in which the
Board ruled that the case should be "left for
resolution within 'the framework of the agreed upon
settlement procedures." The majority there explained
its decision in these words:
Thus, we believe that where, as here, the
contract clearly provides for grievance and
arbitration machinery, where the unilateral action
taken is, not designed to undermine the Union
and is not patently erroneous but rather is based
on a substantial claim of contractual privilege,
and it appears that the arbitral interpretation of
the contract will resolve both the unfair labor
Brothers Bag Company, 143 NLRB 1311; Flintkote Company, 149 NLRB
1561. In the recent decision of Dresser Industrial Valve & Instrument
Division, Dresser Industries, Inc., 178 NLRB No. 51, fn. 1, the Board
specifically disavowed a statement by the Trial Examiner that Consolidated
Aircraft had in effect been overruled.
13 175 NLRB No. 23.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practice issue and the contract interpretation
issue in a manner compatible with the purposes of
the Act, then the Board should defer to the
arbitration clause conceived by the parties. This
particular case is indeed an appropriate one for
just such deferral. The parties have an unusually
long established and successful bargaining rela-
tionship; they have a dispute involving substan-
tive contract interpretation almost classical in its
form, each party asserting a reasonable claim in
good faith in a situation wholly devoid of
unlawful conduct or aggravated circumstances of
any kind; they have a clearly defined grievance-
arbitration procedure which Respondent has
urged the Union to use for resolving their dispute;
and, significantly, the Respondent, the party
which in fact desires to abide by the terms of its
contract, is the same party which, although it
firmly believed in good faith in its right under the
contract to take the action it did take, offered to
discuss the entire matter with the Union prior to
taking such action. Accordingly, under the
principles above stated, and the persuasive facts
in this case we believe that the policy of
promoting industrial peace and stability through
collective -bargaining obliges us to defer the
parties to the grievance-arbitration procedures
they themselves have voluntarily established. [ 175
NLRB No. 23, sl. op.-at 5-6. Footnotes omitted.]
The circumstances of this case, no less than those
in Schlitz, weigh heavily in favor of deferral. Here, as
in Schlitz, this dispute arises within the confines of a
long and productive collective-bargaining relation-
ship. The parties before us have, . for 35 years,
mutually and voluntarily resolved the conflicts which
inhere in collective bargaining. Here, as there, no
claim is made of enmity by Respondent to employ-
ees' exercise of protected rights. Respondent here has
credibly asserted its willingness to resort to arbitra-
tion under a clause providing for arbitration in a very
broad range of disputes and unquestionably broad
enough to embrace this dispute.
Finally, here, as in Schlitz, the dispute is one
eminently well suited to resolution by arbitration.
The contract and its meaning in present circum-
stances lie at the center of this dispute. In contrast,
the Act and its policies become involved only if it is
determined that the agreement between the parties,
examined in the light of its negotiating history and
the practices of the parties thereunder, did not
sanction Respondent's right to make the disputed
changes, subject to review if sought by the Union,
under the contractually prescribed procedure. That
threshold determination is clearly within the exper-
tise of a mutually agreed-upon arbitrator. In this
regard we note especially that here, as in Schlitz, the
dispute between these parties is the very stuff of
labor contract arbitration. The competence of a
mutually selected arbitrator to decide the issue and
fashion an appropriate remedy, if needed, can no
longer be gainsaid.14
We find no basis for the assertion of our dissenting
colleagues that our decision here, modifies the
standards established in Spielberg for judging the
acceptability of an arbitrator's award. Spielberg,
supra at 1082, established that such awards would not
be contravened by this Board where:
[T]he proceedings appear to have been fair and
regular, all parties had agreed to be bound, and
the decision of the arbitration panel is not clearly
repugnant to the purposes and policies of the Act.
As already noted, the contract between Respondent
and the Union unquestionably obligates each party
to submit to arbitration any dispute arising under the
contract and binds both parties to the result thereof.
It is true, manifestly, that we cannot judge the
regularity or statutory acceptability of the result in
an arbitration proceeding which has not occurred.
However, we are unwilling to adopt the presumption
that such a proceeding will be invalid under Spielberg
and to exercise our decisional authority at this
juncture on the basis of a mere possibility that such a
proceeding might be unacceptable under Spielberg
standards. That risk is far better accommodated, we
believe, by the result reached here of retaining
jurisdiction against an event which years of experi-
ence with labor arbitration have now made clear is a
remote hazard.
Member Fanning's dissenting opinion incorrectly
characterizes this decision as instituting "compulsory
arbitration" and as creating an opportunity for
employers and unions to "strip parties of statutory
rights."
We are not compelling any party to agree to
arbitrate disputes arising during a contract term, but
are merely giving full effect to their own voluntary
agreements to submit all such disputes to arbitration,
rather than permitting such agreements to be side-
stepped and permitting the substitution of our
processes, a forum not contemplated by their own
agreement.
Nor are we "stripping" any party of "statutory
rights." The courts have long recognized that an
industrial relations dispute may involve conduct
which, at least arguably, may contravene both the
collective agreement and our statute. When the
parties have contractually committed themselves to
mutually agreeable procedures for resolving their
14 See, e.g., Atlanta Newspapers, 43 LA 758 (1964); American Welding, 45
LA 812 (1965).
COLLYER INSULATED WIRE 843
disputes during the period of the contract, we are of
the view that those procedures should be afforded
full opportunity to function. The long and successful
functioning of grievance and arbitration procedures
suggests to us that in the overwhelming majority of
cases, the utilization of such means will resolve the
underlying dispute and make it unnecessary for
either party to follow the more formal, and some-
times lengthy, combination of administrative and
judicial, litigation provided for under our statute. At
the same time, by our- reservation of jurisdiction,
infra, we guarantee that there will be no sacrifice of
statutory rights if the parties' own processes fail to
function in a manner consistent with the dictates of
our law. This approach, we believe, effectuates the
salutary policy announced ' in Spielberg which the
dissenting opinion correctly summarizes as one of
not requiring the "serious machinery of the Board
where the record indicates that the parties are in the
process of resolving their dispute in a manner
sufficient to effectuate the `policies of the Act."
We are especially mindful, 'finally, that the policy
of this Nation to avoid industrial strife through
voluntary resolution of industrial disputes is not
static, but is dynamic. The years since enactment of
Section 203(d) have been vital ones, and the policy
then expressed has helped to shape an industrial
system in which the institution of contract arbitra-
tion has grown not only pervasive but, literally,
indispensable. 15 The Board has both witnessed and
participated in the growth, a complex interaction
where the growth of arbitration in response to
Congress' will has called forth and nurtured gradual-
ly broader, conceptions of the basic policy. The
Supreme- Court which in Lincoln Mills, 16 first upheld
the enforceability of agreements to arbitrate disputes
has recently, in Boys Markets, Inc. v. Retails Clerks, 17
suggested that arbitration has become "the central
institution in the administration of collective bar-
gaining contracts." 18 After Boys Market it may truly
be said that where a contract provides for arbitra-
tion, either party has at hand legal and effective
means' , to ensure that the arbitration will occur. We
believe it to be consistent with the fundamental
objectives-of Federal law to require the parties here
to honor their contractual obligations rather than, by
15 "As labor organizations grew in strength and developed toward
maturity, congressional emphasis shifted from protection of the nascent
labor movement to the encouragement of collective bargaining and to
administrative techniques for the peaceful resolution of industrial disputes.
This shift in emphasis was accomplished , however, without extensive
revision of many of the older enactments .... Thus it became the task of
the courts to accommodate, to reconcile the older statues with the more
recent ones . Boys Markets,` Inc. v. Retail Clerks Union, Local 770, 398 U.S.
235,251 (1970).
re Textile Workers Union of America v. Lincoln Mills of Alabama, 353
U.S. 448 (1957).
17 3981J.S . 235, 252 (1970).
rs As Member Jenkins points out, the arbitral process, like any other, is
casting this dispute in statutory terms, to ignore their
agreed-upon procedures.
V. REMEDY
Without prejudice to any party and without
deciding,the merits of the controversy, we shall order
that the complaint herein be dismissed , but,we shall
retain jurisdiction for a limited purpose. Our decision
represents a developmental step in the Board's
treatment of these problems and the controversy here
arose at a time when the Board -decisions may have
led the parties to conclude that the Board approved
dual litigation of this controversy before the Board
and before an arbitrator. We are also aware that the
parties herein have not resolved their dispute by the
contractual grievance and arbitration procedure and
that, therefore, we cannot now inquire whether
resolution of the dispute will comport with the
standards set forth in Spielberg, supra,. In order to
eliminate the risk of prejudice to any party we shall
retain jurisdiction over this dispute solely for the
purpose of entertaining an appropriate and -timely
motion for further consideration upon' a -proper
showing that either (a) the dispute-- has not, with
reasonable promptness after the issuance, of this
decision, either been resolved by amicable settlement
in the grievance procedure or submitted promptly to
arbitration, or (b) the grievance or arbitration
procedures have not been fair'and regular or have
reached a result which is repugnant to the Act.19
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board orders that the complaint herein be,
and it hereby is, dismissed; provided, however, that:
Jurisdiction of this proceeding is hereby retained
for the limited purposes indicated in that portion of
our Decision and Order herein entitled "Remedy."
MEMBER BROWN, concurring:
I agree that the Board should defer to the
applicable grievance arbitration machinery of the
parties' collective-bargaining agreement. Federal
labor policy, as proclaimed by Congress and the
Supreme Court, both encourages the voluntary
not without its imperfections. But the fact that some 95 percent of collective
agreements currently look to arbitration as the means of resolving disputes
which the parties are unable to resolve in the course of their grievance
discussions, demonstrates both the accuracy of the Supreme Court's
characterization and the continuing vitality of arbitration. Its successes
suggest that we are here respecting substance and not mere "mystique."
19 See Port Drum Company, 170 NLRB No. 51, and 180 NLRB No. 90;
cf. Dubo Manufacturing Corporation, 142 NLRB 431. Protection of the
parties' interests in the manner herein avoids any problems that might
otherwise arise under Section ' 10(b) of the Act. See N.L.R.B. v . Central
Power & Light Company, 425 F.2d 1319, 1320 (C.A. 5). See also Section
102.48(d) of the Board's Rules and Regulations and Statements of
Procedure, Series 8, as-amended.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resolution by parties of their disputes and requires
that they resolve such differences through their own
agreed-upon methods, where, as in the instant case,
their agreement provides that "All questions, dis-
putes, or controversies under this Agreement shall be
settled and determined solely and exclusively by the
conciliation and arbitration procedures provided in
this agreement." This is not the first time I have
addressed this matter,20 but I do so, again because of
the importance of the issue and, because my own
approach differs somewhat- from that of my col-
leagues of the majority.
The widespread use of grievance-arbitration proce-
dures shows that the labor industrial community
views such procedures as an integral part of
collective bargaining.21 In fact, grievance procedures
give meaning to the statement that collective bar-
gaining is a continuous process. That this is so can be
seen by even a cursory view of the role played by
grievances . They, are the foremost means for imple-
mentation, application, and interpretation of a
collective-bargaining agreement on -a day-to-day
basis. Grievances concern questions of fact, of
application of general rules to particular situations,
and of resolution of conflicting, sections of the
agreement. Grievances serve such other diverse
purposes as a device to save face, a channel of
communication, and a means of defining and
recording problems- of the industrial environment.
The scope, both in function and utilization, of
grievance arbitration is by itself sufficient reason to
consider deferring to that process. The grievance-
arbitration process is one of the most important tools
of collective bargaining, and the raison, d'etre of the
National Labor Relations Act is to encourage
collective bargaining 22 As stated by the Supreme
Court:
The present federal policy is to promote industrial
stabilization through the collective bargaining
agreement. [Citation omitted .] A major factor in
achieving industrial peace is the inclusion of a
20 See, e.g., my ' separate opinions in Raytheon Company, 140 NLRB 883,
888; Cloverleaf Division of Adams Dauy Co., 147' NLRB 1410, 1425; Leroy
Machine Co., Inc., 147 NLRB 1431, 1434; Thor Power Tool Company, 148
NLRB 1379, 1381 ; Gravenslund Operating Company d/bla Washington
Hardware and Furniture Co., 168 NLRB 513, 515 ; Univis, Inc., 169 NLRB
37; McLean Trucking Company, 175 NLRB No. 66; Eastern Illinois Pas and
Securities Company, 175 NLRB No. 108; Dayton Typographic Service, Inc,
176 NLRB No . 48; Sieves Sash and Door, Inc., 178 NLRB No. 27; Dresser
Industrial Valve ,& Instrument Division, 178 NLRB No. 51; Union Carbide
Corporation, 178 NLRB ;,No. 81; Iron Workers Local 229 {Bethlehem Steel
Corp.), 183, NLRB No. 35; 'Macy'' California, 183 NLRB No. 47; and
Consolidated Foods Corporation , 183 NLRB No. 78.
21 In a continuing comprehensive study of collective-bargaining agree-
ments, the Bureau of Labor Statistics reports , that all but I percent of the
agreements studied , included a procedure for handling , grievances and that
94 percent of the agreements provided for arbitration . The BLS study points
out that arbitration provisions have increased in prevalence from 74 percent
in 1944, 83 percent in 1949, and 89 percent in 1952. U.S. Department of
provision for arbitration of grievances in the
collective bargaining agreement.23
Certainly great damage could be done to the entire
system of grievance arbitration, and to the process of
collective bargaining, if parties believed they could
ignore an agreed-upon method of settling disputes.
Since in most cases deferring to arbitration will
encourage collective bargaining, the ' Board;` ini
carrying out the Act's purpose, 'should see that full
play is given to the arbitral process.-In my view, the
Board's role is to'determine those situations-m which
the cause of industrial peace through collective
bargaining will' be better served by deferring to the
arbital process and thereby requiring the parties to
resolve their differences by the machinery of their
own agreement.
In Elgin, Joliet & Eastern Railway Co. -v. Burley, 24
the Supreme Court explicated the traditional' differ-
ences between those contract disputes which look'to
the acquisition of rights in the future and those which
involve claims of rights accrued in the past, The
Court at 723 said:
The first relates to dispute over the formation
of collective agreements or efforts to secure them.
They arise where there is no such agreement or
where it is -sought to, change the terms of one, and
therefore the issue is not whether, an existing
agreement controls the controversy. rThey look to
the acquisition of rights for the future, . not to
assertion of rights claimed to have vested: intithe
past.
The second class, _ however, contemplates - the
existence of a collective agreement already
concluded or, at any rate,,a situation in which no
effort is made to bring, about a formal--changeJn
terms or to create a new one. The dispute relates
either to the meaning or proper application-of a
particular provision, with reference to a -specific
situation or to an omitted case. In the latter event
the claim is founded upon some incident of ,the
employment relation, or asserted one,-independ-
ent of those covered by the collective agreement,
Labor, Major Collective Bargaining Agreements ; Grievance Procedures, BLS
Bulletin 1425-6 (1964); -and ,arbitration Procedures, BLS Bulletin 1425-6
(1966). These studies are based on 1,717 agreements, each covering 1,000
workers or more , representing nearly all agreements of this size, exclusive of
railroad, airline,, and government agreements. BLS, has not included joint
councils, which have no impartial party, in the, arbitration statistics;
The Bureau of National Affairs substantiates the widespread, use of
grievance-arbitration procedures , stating, "Almost all contracts now contain
provisions for arbitration." Collective -Bargaining-Negotiations and Con-
tracts, Sec. 51.26 (BNA, Washington, D,C.).
22 See Sec. I of the Act, the last paragraph of which reads in part, "It is
hereby declared to be the policy of the United States to eliminate, the causes
of certain substantial obstructions to the free flow of commerce and to
mitigate and eliminate these obstructions when they have occurred by
encouraging the practice and procedure of collective bargaining .....
u United Steelworkers v. Warrior & Gulf Navigation Co., 363,U.S. 574,
578.
24 325 U.S. 711.
COLLYER INSULATED WIRE 845
e .g., claims on "account of personal `injuries. In
either' case the claim- is to rights accrued, not
merely to have ` new ones created for the future.
This distinction forms ` an integral part of my
approach to arbitratidir,and the Board. -,
In my view, arbitration properly serves the func-
tion of resolving differences about agreements
previously reached,-- and not as a means for the
"acquisition 'of future rights' ; for I do not view
arbitration as' a substitute for collective bargaining.
Thus, the Board- should assure itself that .the
requested deferral to arbitration"encompasses mat-
ters-which have been subjected to collective- bargain
ing." The ' Board should not defer where the dispute is
not covered by_ the contract and, therefore, involves
the acquisition of, new rights.25 I would reach a
different result where the contract is ambiguous 26 In
such a case -a aparty may be exercising an accrued
right, and the party's action might be justified by the
ultimate interpretation of°'thecontract. Thus,'I would
defer where a good-faith dispute over the interpreta-
tion or application of a contract exists, because it is
in such instances- that `deferral will encourage
collective bargaining.
`Under -this'concept; it makes no difference whether
there' has been-an arbitration award or not. Deferral
in' either case will encourage collective ' bargaining.
Where there has been an award, as in Spielberg, 112
NLRB '1080`, deferral requires the parties to abide by
their 'agreement' that disputes shall be settled by
grievance' arbitration. If the Board were to decide
such, a case on the: merits, it'would permit the parties
to ignore their* agreement. This' would ill serve the
statutory purpose of encouraging ,collective bargain-
ing,,especially where that part of theagreement the
parties could ignore= is itself an integral part of the
bargaining process. , Likewise, failure to defer where
there has been no award also would 'permit the
parties to circumvent their arbitration agreement by
coining to the Board before pursuing their grievance.
The deferral policy should be .applied ,to disputes
covered by the collective-bargaining agreement and
subject to rarli tration^whether-the disputes involve
aueged'violations -of Section 8(a)(5), (3), or (1) or
whether brought by the employer, the union, or an
employee. It isa inconsistent with- the statutory policy
fa-voring,arbitr'ation for the Board to resolve disputes
which, while cast as'unfair labor practices, essentially
3° See,-Cg., my separate opinions in Cloverleaf Division of Adams Dairy
Co., suprwfand Leroy Machine Co., supra.
26 See, e.g., Bemis Brothers -Bag Company, 143 NLRB1311 (1963; panel
of Members " Rodgers; Fanning and Brown), citing '-United Telephone
Company of the'West-and United Utilities, Incorporated' 112 NLRB 779, and
Consolidated Aircraft Corporation, 47 NLRB 694, 706; and The Flintkote
Company',-149 NLRB `1561.
27 Of course, an -employee may oppose 'acts of his union which are
violative of, its duty to fair representation, as m Miranda Fuel Company, Inc.,
140 NLRB 181; Hughes Tool Company, 147 NLRB 1573. Cf. Black-Clawson
involve disputes with respect to, the interpretation-or
application of the contract and which- the 'arbitrator
can put to rest. That -the employer and union are
bound by their agreement is 'fundamental to collec-
tive 'bargaining: I also believe that an employee is
bound by the acts of his bargaining agent.27 If an
employee could initiate and repudiate the acts of his
duly designated representative at his whim, the
statutory objective of fostering voluntary settlements
by parties to collective-bargaining `agr`eements can-
not be attained. This was not intended by Congress
and is contrary to the fundamental purposes of the
Act.28
In my opinion deferral would serve only a ;limited
purpose in representation cases . I have - serious
reservations ;about- applying, the same standards to
representation cases as I would apply; to'.unfair labor
practices cases. For this reason I. did not sign, the
Raley's case, 29 in which the Board applied Spielberg
principles to representation 'cases . Representation
proceedings generally involve the very-questions of
whether there, will be a collective-bargaining arrange-
ment and, if so, to what extent. The standards for
Board determinations of units are to assure employ-
ees the fullest- freedom in exercising the rights
guaranteed by the Act. Public interest considerations
in the determination of the boundaries of the
bargaining unit- precludes,- in my view, surrender of
this function to private parties. This is not to say that
Board election procedures should completely ignore
the -availability of arbitration. In -Pacific Tile and
Porcelain Company, 30 , the Board deferred-ruling on
challenges to the voting eligibility of two individuals
whose discharges were the subject of pending
grievance action. This is an example of `a situation in
which an arbitr'ator's ` determination presents no
conflict with the Board's essential -role in representa-
tion cases. Deferring in representation cases in other
circumstances, in my -opinion, might frustrate the
purpose of encouraging collective- bargaining.
One `other area in which -I would not defer to
arbitration is' where there has been a repudiation of
the 'collective-bargaining 'process.In such a situation
the desirability 'of encouraging ' resort to arbitration
must yield to the Board's - duty to protect the
bargaining process. Deferral, of course, would not
encourage bargaining where 'the very process of
Company, Inc. v. International Association of Machinists, Lodge 355, 313 F.2d
179, 184-186 (C.A. 2).
28 Although Sec. 1 of the Act, states that one of the Act's purposes is to
protect workers, it is modified by language to, the effect that the protection
is for the purpose of permitting collective-bargaining . And, of course, where
there is arbitration there is an established and continuing collective-
bargaining relationship,, to which an employee's interest is subject.
as Raley's Inc., 143 NLRB 256.
30 137 NLRB 1358.
846 DECISIONS OF NATIONAL LABOR , RELATIONS BOARD
bargaining, including ,grievance arbitration , has been
repudiated and is, in effect , nonexistent.
Turning to-,the instant case , ,the issue of deferral is
clearly presented, -Although neither party instituted
the contractual grievance procedure , Despondent at
the hearing, and in its exceptions has raised the-issue.
The record "establishes,, and the Trial , Examiner
found, that the,." collective-bargaining agreement
contains provisions ' pertinent • to the alleged unfair
labor practice. In my opinion, the bargaining process
here can best be protected by deferral . Accordingly, I
would not ,consider the merits , of this case but would
defer to the applicable grievance machinery ,,,, that
being the agreed upon method which the parties have
voluntarily bound themselves to use in -resolving, such
disputes. I would, therefore, dismiss 'the complaint
but retain jurisdiction for the purposes set forth in
the majority opinion.
MBMBER FnNNINC, dissenting:
As found by the Trial Examiner, Respondent's
changes, ' alleged - by the General Counsel to be
violative of Section -8(a)(5) of the Act, fall into'two
categories : (1)' changes , in the incentive system as it
related , to extruder operators,, instituted by Respon-
dent on November 17, 1969, and February 16,4970;
(2) wage `increases ;of 20 cents 'per hour for skilled
employees in -labor grades -3A,, 4B, and, 5C, instituted
on November . 17, 1969, 'and a related change,
effective November , 12, 1969, whereby an extruder
operator and, his helper substituted for a skilled
mechanic in the change of the worm gear. With
respect to , (1), the Trial Examiner found that these
changes were made in,accordance with past practice,
were not inconsistent with the collective-bargaining
agreement,, and, in any event , Respondent had
fulfilled its bargaining , obligations as to these matters.
With, respect to,,, (2), the Trial Examiner found that
such , changes were unilateral rather than the result of
collective bargaining and could not be justified in, the
context of this case . His conclusion was based upon
the , history of negotiations ` between the parties, the
collective-bargaining agreement , and the scope of the
substantial , wage ,increase for a whole class of
employees . He pointed out that again and again
during negotiations , for,the September 1969 contract
Respondent had attempted to secure from the Union
an agreement- to, include in , the contract a negotiated
skill factor for the -above skilled labor grades. The
Union was adamant in refusing to negotiate for a
special group : of employees and took the firm
position that any reevaluation of pay rates for' skilled
employees must be; accompanied-by a reevaluation of
all jobs. Accordingly, -while 'article ]X , section 2, of
the ,contract grants Respondent the right to make
"adjustments , in individual rates from time to time
... " it further provides that "... no, change; in the
general scale , of pay now inexistence shall, be made
during, they , term of, this agreement." The Trial
Examiner concluded that the 20 -cent-per-hout, in-
crease for skilled - employees, was, more general than
individual and was not sanctioned by the contraet in
terms of a special skill factor.
Following execution of the contract the Res n-
dent sought ,again, as it had during negotiations, to
secure the right to treat skilled employees , on a
preferential basis.,, Again the Union, refused, to
negotiate for a particular group ,. but indicated a
willingness , to agree to additional wage adjustments
for all employees,within the, job evaluation system.
While Respondent agreed to reevaluate all jobs, it
insisted nevertheless on unilaterally establishing`, an
immediate 20-cent-per hour increase for labor , grades
3A, 4B, and 5C -without bargaining wit i,F:therUnion
and in, derogation of the pay scale the parties had
established_ for this group of, employees in the
controlling , collective-bargaining agreement. At
about', the same time Respondent ordered the
extruder operator and his ; helper, who would not
receive the added skill factor of, the mechanics, to
take the place 'of a mechanic in the job of changing
the ,worm gear. In this -manner, 'the trial Examiner
found that the Respondent (attempted unilaterally to
escape the basic frame , of the wage bargain. struck
with the Union in their labor contract.
I agree with the Trial Examiner that the wage
increases for skilled employees only and the related
worm gear change, were properly subjects for
collective bargaining and that Respondent,violated
Section 8(a)(5) ,and (1) of `the Act by instituting these
changes unilaterally.
In,a novel decision with,far-reaching implications a
majority ,of this Board in the instant case refuses even
to consider the alleged unfair labor practices' con-
cluding merely I that thee' _ Board's "obligation to
advance the purposes of the Act is best discharged by
the dismissal of `this complaint." The majority's
refusal to assert the authority granted to it by
Congress under Section 10(a) of the Act is based
solely, on the ground` that the collective-bargaining
agreement between `the Union' and ,the" Respondent
contains a standard grievance arbitration procedure,
culminating in binding arbitration.
Admittedly, the Union or any of its members had a
contractual right to institute grievance with`respect
to 'the' Respondent's ,changes and - rto secure the
benefit of an eventual ruling by an- arbitrator, No
such grievances have been filed in this case and there
is no- indication that' the charging party,'or its
members voluntarily desire to do so. Contrary to the
majority, the arbitration provision-does not make it
clear that the parties intended "to make the griev-
ance and arbitration machinery the exclusive forum
COLLYER INSULATED WIRE 847
for resolving contract disputes ." Section 1 , article IV,
of the contract sets , forth the procedure for "any
complaint or dispute," as noted by the majority, but
further provides that the grievance procedure - is
"subject to the rights of ° individual employees as
provided for- in the, Labor-Management Act of
1947." Under article 'V (arbitration) the parties
further agreed that "The arbitration shall be held
under the Voluntary Labor Arbitration Rules of-the
American Arbitration Association and the parties
agree that the decision of the arbitrator shall be final
and binding upon the parties , providing such award
will not conflict with any rules or regulations or laws of
the Federal Government. . . ." (Emphasis supplied.)
Moreover, section 3 , article , IV, of the contract
specifically provides that grievances not presented or
advanced within the time limits set forth in sections 1
and 2 "shall be deemed to be settled and shall not be
reprocessed . " The time limits for the resolution of
grievances with respect to these unilateral changes
have passed and, so .far as the collective-bargaining
agreement is -concerned, those putative grievances
must-bedeemed to,be settled.
Clearly then the effect of the majority 's decision is
a direction to, the parties to arbitrate a -grievance
which is no longer contractually arbitrable. The
complaint is dismissed, but jurisdiction is retained,
presumably to give the Union an opportunity to file
a grievance under a time-expired contractual provi-
sion, with the implicit threat to the Respondent that
the Board will assert - jurisdiction, upon a proper
motion , if Respondent is-unwilling now to submit to
arbitration . The majority's insistence that the parties'
statutory rights cannot be adjudicated in. this case
except through the-authority of an arbitrator verges
on the practice of compulsory arbitration . Historical=
ly, in this country voluntarism has been the essence
of private ' arbitration of labor disputes . Neither
Congress nor the courts have attempted to coerce the
parties in collective bargaining to resolve their
grievances through arbitration . Compulsory arbitra-
tion has been regarded by some as contrary to a free,
democratic society. Collective-bargaining agree-
ments, such as the one in the instant case, give
aggrieved parties the right to file grievances and to
present their disputes to an arbitrator. The element
of compulsion has been deliberately omitted. To
establish the principle, as a matter of labor law, that
the parties to a collective -bargaining agreement
must, in part, surrender their protection under this
statute as a consequence of agreeing to a provision
for binding arbitration of grievances will, in my view,
discourage rather then encourage the arbitral process
in this country. Many may decide they cannot afford
the luxury of , such "voluntary" arbitration.
i This is not the first time the Board has attempted to
force the parties in collective bargaining to agree to
terms thought desirable by the Board for policy
reasons. In Local 357, Teamsters v. N.L.R.B., 365
U.S. 667, the Board attempted to regulate hiring-halls
by prescribing nondiscriminatory standards for
referral of employees. The Supreme -Court reversed,
holding that the Board did not have the 'power to
compel the inclusion or exclusion of hiring halls in
collective-bargaining agreements or to impose upon
the parties more regulation than, the Act affords. If
so, the -Court held, "Congress not the Board is the
agency to do it." Ibid; 677. In H. K Porter Co. v.
N.L.R.B., 397 U.S. 99, the Court of Appeals, for the
District of Columbia had approved-the Board's-order
compelling an employer to agree to the Union's
proposed checkoff clause in a collective-bargaining
agreement . Again the Supreme Court, reversed,
holding that the-Act was based on the fundamental
premise of "private bargaining under government
supervision of the'. procedure alone, without any
official compulsion over the - actual terms of the
contract." Ibi4 108. The -court_concluded that it was
"the job of Congress, not the. Board or the courts
' to consider the desirability of remedial power
for the Board; broader than the statute contemplat-
ed. Ibid, 109. -
Similarly, I believe that the establishment of a
policy designed to force employees to, relinquish any
portion of their - statutory rights is a matter for
Congress, not this Board,- - to--, decide. Nor has
Congress been loath to express its legislative will in
designating a specific forum other-than the Board for
the resolution of labor disputes. In ' Sections
8(b)(4)(D) and. 10(k) Congress specifically provided
that a "voluntary method" for the adjudication of
jurisdictional disputes was preferable - to Board
intervention. No such preference has been indicated
by Congress or the Supreme Court for alleged
violations of Section 8(a).
1 do not mean to suggest that the Board has no
discretion to give weight and consideration to an
arbitrator's award in an appropriate case; Even an
unresolved minimal alleged unfair labor, practice,
involving the interpretation of specific contractural
provisions, may not require the serious machinery of
the Board where the record indicates that the parties
are in the process of resolving their- dispute- in a
manner sufficient to effectuate the • policies of the
Act. The Spielberg (Spielberg Manufacturing Co.; 112
NLRB 1080) line of cases, with some variation, has
been settled Board law for the past -16 years. There
the Board held that it would recognize an arbitrator's
award where "the -proceedings appear to have been
fair and regular, all parties had agreed to be bound,
and the decision of the arbitration panel is not
clearly repugnant to the purposes and policies of the
848 DECISIONS OF =NATIONAL, LABOR RELATIONS BOARD
Act:" Subsequent decisions of the Board in this area
of labor law have relied primarily upon the above
rationale .. In Dubo Manufacturing, 142 NLRB 431,
the parties had been ordered by a United-„ States
district court to utilize their grievance and arbitration
procedure., The Board deferred action on the
complaint , pending completion of - the , arbitration
proceeding and - notification , to the- Board thereof.
The meshing of the Board's•processes with those of
arbitration is,,as the Supreme Court noted in Carey v.
Westinghouse • Corporation, 375 U.S, 261, 271, "at
times closely brigaded ." Where the parties have
arbitration of a labor dispute available to them, the
Board's ° encouragement of the use of that process
does not begin in Washington after the case has been
fully litigated before a Trial Examiner.
In practice, the Regional Offices when a charge
is pending and the grievance-arbitration proce-
dure is being actively pursued will defer -.action on
the, charge pending completion of the - grievance-
arbitration procedure and will encourage active
-resort to the grievance-arbitration procedure if it
appears that there is a substantial likelihood that
the utilization of the procedure will set the dispute
atrest.-Arnold Ordman, then General Counsel,
NLRB , Arbitration and the NLRB -A Second
Look March 3 , 1967, Speech before the National
Academy of, Arbitrators, Twentieth Annual Meet-
ing, Fairmont Hotel, San Francisco , California,
page 20, mimeographed version.
Thus, it would seem clear that under current Board
law and practice every effort is being made by the
General Counsel,and the Board, consistent with the
Congressional objective of eliminating unfair, labor
practices, to encourage the parties involved in a_labor
dispute voluntarily to resolve their differences ;without
recourse to the Board.
The majority contends , however, that the Respon-
dent's right to establish unilaterally -a 20-cent-per-
hour-=increase for its skilled employees , is a dispute
that "can better be resolved by arbitrators with
special skill and experience in deciding matters
arising under established bargaining relationship
" As indicated above , during negotiations for
the September 1969 contract the Respondent had
sought aggressively to include in that agreement a
special skill factor for these employees: The Union
was adamant in its refusal to yield, to this demand
and the contract, as finally executed, makes ,no such
provision, dropping a clause of this nature which had
been included in the predecessor, contract ,, In these
circumstances I find it impossible tow accept the
majority's assertion that an arbitrator rather than the
Board, with the help of its staff and Trial Examiner,
has more , expertise and is more competent to judge
such a dispute'. in a manner to; effectuate the policies
of the Act. The law is perfectly, clear,-,that an
employer's unilateral action in granting nonautomat-
ic, swage increases - without prior , discussion or bar-
gaining with the Union is violative of Section.8(a)(5)
of the Act. Such, ,conduct, the Supreme-Court has
held, "must of necessity , obstruct bargaining, contra-
ry to the Congressional policy." N.L.R.B. v. Katz,
369 U.S. 736, 747.
-None of the decisions cited, in the ` majority's
opinion warrants the- ultimatum, addressed, to the
parties in this ands similar, cases. ,As, the Supreme
Court pointed out in N. L. R.B.- v.- Acme, industrial
Company, 385 U.S. 432, to-construe , the Steelworkers
trilogy, as a displacement of the- Board 's processes
where the parties, could have arbitrated a dispute
under , their contract Js a .misreading , i of those
important , decisions . In that , case, the Court , of
Appeals for the, Seventh Circuit :had-ruled that, the
existence of a provision for binding arbitration of
differences as to-the meaning - of a collective-bargain-
ing agreement -precluded the Board from finding a
violation of Section 8(a)(5) in the-Company's -refusal
to furnish the Union with relevant , bargaining
information. The; Supreme Court -reversed,, holding
that the, lower,, court's reliance on the trilogy cases
was misplaced because "those cases dealt , with the
relationship of courts = to arbitrators when an arbitra-
tion, award is under review, or when the, employer's
agreement to arbitrate is in question. The weighing of
the arbitrator's greater , institutional competency,
which was, so vital to 6 those, decisions,, must be
evaluated in, that context." Ylbid,, 436. The Court
further held that the,"relationship'of the Board to the
arbitration process; is of a quite different :order." The
Court noted that : Section 8(a)(5),, as amplified by
Section 8(d) ,;and Section 10(a), empowering the
Board to, prevent unfair labor practices, gave the
Board clear authority to rule upon the alleged unfair
labor practice in that, case, despite the availability to
the parties- of private arbitration. Ibid, 436-437.
Notwithstanding the availability, of arbitration, the
"superior authority of the Board may be invoked, at
any, time" and if the Board 'should disagree=with the
arbitrator ",the Board's ruling would, ofcourse, take
precedence, , .. " Carey v. Westinghouse Electric
Corporation, 375 ' U.S. 261, 272.
The majority cites, two Board, decisions as authority
for deferring to the "arbitral,process",before arbitra-
tion has- occurred. The first is Consolidated Aircraft
Corporation, 47,NLRB. 694, and, the second, Joseph
Schlitz Brewing Company, 175 NLRB No. 23. In the
former case , of the seven alleged unilateral actions
five were amicably settled by the parties by the time
the matter had reached .the Board and the remaining
two unsettled issues involved relatively ; minor mat-
ters,. In, dismissing, the 8 (5), allegation of, the com-
COLLYER INSULATED WIRE 849
plaint, the .Board carefully considered not only the
availability of arbitration, but the specific nature and
scope of, the alleged unfair. labor practices. The
Respondent, the Board concluded, was not attempt-
ing. to ,undermine the Union onto evade its obligation
to recognize and deal with the Union as the
employees' bargaining representative. It should be
noted,- moreover, that this decision is 28 years old
and its over-broad- rationale, cited by the majority,
has remained, buried in the Board's history until
resurrected in the majority's opinion in this case. The
recent decision. of Joseph Schlitz, supra, has even less
significance. The alleged unilateral conduct in that
case involved a change in the relief man system
requiring all employees to take a break at the, same
time rather, than separately. A two-man majority of a
Board panel found that this was merely a question of
contract interpretation and the "situation was wholly
devoid of unlawful conduct or aggravated circum-
stances of any kind." Member Jenkins concurred in
the dismissal solely on the ground that Respondent
had not committed an unfair labor. practice.
The effect 'of the majority's decision in the instant
case is clearly a reversal of the established Spielberg
line of cases. In the future applicable standards for
review of arbitration awards will not be followed.
leither the existence of an actual award, the fairness
f' the arbitrator's ' opinion or its impingement upon
the' policies of, the Act will .,be considered by the
Board in dismissing complaints of this nature. Under
the majority's„ accommodation theory even consider-
ation of the nature and scope of the alleged unfair
labor practices, as set` forth in Consolidated Aircraft
and Joseph Schlitz, supra, will not receive the Board's
attention. The impact of the majority's decision may
be said ' to go beyond compulsory arbitration. For it
means that' in, the future, the Board will not concern
itself with the fact or the regularity of the arbitral
process, but will strip the parties of statutory rights
merely on the availability of such a procedure.
The majority does not frame the primary issue in
this case in terms calculated to resolve a particular
dispute in a particular case. Rather, a new standard
for the nonassertiori of jurisdiction is announced,
embracing a whole class of employers who have
entered into contracts with unions containing a
grievance-arbitration clause. In the future, com-
plaints based upon such disputes, without regard to
the seriousness of the alleged unfair -labor practices,
may not be litigated' before this, Board. The majority
rejects the Board's policy - of approving "dual
litigation of this controversy before the Board and
before an arbitrator." As part, however, of the
Board's, new "developmental step" jurisdiction is
retained in the instant ease to require the parties to
submit to arbitration. As indicated above, I believe
the majority's policy is contrary to the intent of
Congress and, indeed, beyond the power of the
Board. Section 10(a) of .the Act clearly states that the
Board's power to prevent unfair labor practices
"shall not be affected by other means of adjustment
or prevention that has been or may be established -by
agreement, law, or otherwise." (Emphasis supplied.)
Moreover, under Section 14(c)(1), Congress in the
amended Act specifically limited the extent to which
the Board may exercise its discretion to, refuse
jurisdiction over any "class or category of employ-
ers" by providing: "That the Board shall not decline
to assert jurisdiction over ' any labor dispute over
which it would assert jurisdiction under the stand-
ards prevailing upon August 1,1959."
Assuming arguendo the power of the Board to
refuse to entertain charges in cases'of'this type, the
policy of embarking upon such a program is open to
serious question. Arbitrators are employed to - inter-
pret and apply a specific collective-bargaining
agreement. Generally, they are loath to intrude into
,the area of public rights or national labor policy.
These questions historically have been the prime
concern of the Board,' which was established by
'Congress exclusively for this purpose. Understand-
ably, an arbitrator, paid jointly by a union and'an
iemployer to adjudicate 'their private rights ' and
obligations,- may be unwilling to suggest that one of
them is in violation of thet National Labor Relations
Act and to direct a remedy appropriate to such a
finding. The function of good arbitration involves
not only the resolution of a particular dispute, but
the fostering of a harmonious relationship between
the parties to collective bargaining. To endow the
arbitrator's award in all cases ' involving contract
interpretation with the prior imprimatur of Board
approval is, in my opinion, a disservice to the
arbitrator, the parties before him, and the effectua-
tion of a sound national labor policy.
Congress has said that arbitration' and the volun-
tary settlement of disputes are the preferred method
of dealing with certain kinds of industrial unrest.
Congress has also said that the power of this Board
to dispose of unfair labor practices is not to be
affected by any other method of adjustment. What-
ever these two statements mean, they do not mean
that this Board can abdicate its authority wholesale.
Clearly there is an accommodation to be made. The
majority is, so anxious to` accommodate arbitration
that it forgets that the first duty of this Board is to
provide a forum for the adjudication` of unfair labor
850 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD
practices. We have not been told that arbitration is
the only method; it is one method:
We have recently been told by, the Supreme Court
that preemption in favor of this. Board: still exists 31 It
is therefore inappropriate, to say the least, for us to
cede,our jurisdiction in all cases involving arbitration
to a tribunal, that may, and often does, provide only a
partial remedy. • ,
MEMBER JENKINS , dissenting:
.;, The majority, in a, complete reversal of Board
precedent; has declined to determine the merits of an
alleged - violation' -of this' Act, not because an
arbitration award of some type has been made
(whether -meeting,- Spielberg standards or not), but
solely because the collective-bargaining agreement
establishes _ arbitration as , a method for settling
disputes about, that agreement, if and when both
parties to the agreement decide, to pursue that
course.32 They, are thus; refusing to decide the
statutory issue ; because of , the existence of the
arbitration process, not because the ,full litigation of
the, issue has terminated in an arbitration, award.
I can see no warrant in the Act which will support
refusal of the Board to decide these issues concerning
unfair-labor practices which Congress has committed
to us. And even if the Act gave us discretion to refuse
to decide, I can see no reason of 'policy to refuse, and
substantial reason not to-do so=, -
This principle of refusing to decide is directly
,contrary to the very recent. decision of the Supreme
Court in Motor Coach Employees v. Lockridge, 403
U.S. 274 (1971). Lockridge was discharged because
of an alleged arrearage in dues to the union, pursuant
to a valid, union-security clause. He denied the
delinquency, asserted his a dues were , sufficiently
current under union rules , and asserted further that
the union procured his discharge because it errone-
,ously regarded his dues to be delinquent or because
he had, revoked a checkoff. Either action by the
union would be an unfair labor practice. Finally,
Lockridge made, a claim , which the Court described
as "sounding squarely in contract," that his' suspen-
sion from union membership and consequent dis-
' Amalgamated Assn . of Street, Electric Railway & Motor Coach
Employees v.°Lockridge, 403 U.S. 274, June 14, 1971.
32 In the period , 1960-70, the Board has often decided the merits in
"unilateral change of contract" cases , despite the ' availability' of arbitration:
See, e.g, Cloverleaf Division of Adams Dairy Co., 147 NLRB 1410; Leroy
Machine Co., Inc., 147 NLRB 1431 ; Smith Cabinet Manufacturing Co., 147
NLRB 1506; 'Puerto Rico Telephone Co, 149 NLRB 950; Huttig Sash &
Door `Co., 154 NLRB 811, cried . 377 F,2d 964 (C.A. 8); Century Papers Inc.,
155 NLRB 358; The Crescent Bed Company, Inc., 157 NLRB 296; C & S
Industries,, Inc., 158 NLRB 454; American Fire Apparatus Company,, 160
NLRB 1318 ; The Scam Instrument Corp., 163 NLRB 284 ; Adelson, Inc.,
d/b/a Food Fe.', Stores, Ina, 163 NLRB 365; W. A Ihrie^& Son. 165 NLRB
167; Gravenslund Operating Co., 168 NLRB 513; PPG Industries, Inc., 172
NLRB 'No. 61; Unit Drop Forge Division Eaton Yale & Towne, Inc., 171
NLRB No. 73; Wisconsin Southern Gas Co., 173 NLRB 480; Combined
Paper Mills, Inc., 174 NLRB No. 71 ; Boston Edison Co., 176 NLRB No.
charge, violated ;the -constitution and general, laws ,of
,the union which constituted'a-contract between him,
as a member, and the ` union; and he_ demanded
damages for breach of this contract.. A state,,court
awarded damages to Lockridge, for the breach of
contract:
The Supreme Court held that under the preemption
doctrine which is designed, to avoid conflicting
regulation of, conduct by, various r tribunals -which
might have some authority over the subject matter,
this Board had exclusive jurisdiction to' decide the
case, and-the state court was without-juri's`diction.
There it was urged, as it is'by the^majority here, that
the- complaint "was not subject to the exclusive
jurisdiction of the NLRB because it_chargeda breach
of contract rather, than an unfair labor, practice
The' Court held this argument' "is`, - not
tenable,"' because "[ilt is,, the conduct being regulat-
ed, not the formal description of-` governing - legal
standards, that is the proper- focus 'of concern.
Indeed, the notion. that a relevant distinction exists
for' such purposes between particularized and gener-
alized labor law was- explicitly rejected in- Garmon
itself. 359 U.S. at 244." 403 'U.S. at 292.
The Court also 'rejected"an argument identical to
the majority's `reasoni'ng that we should relinquish
our, jurisdiction to arbitrators here -because "the
dispute in its entirety arises from the `contract and
from the parties' relationship under that contract,"
"[t]he contract and its meaning lie at the center of
this dispute," and "the Act is' involved'only if it is
determined that the, collective` bargaining' agreement
did- not } sanction` the employers right to make the
changes." As the Court held:
The second'' argument, closely related' to the
first,' is that the state courts, in" resolving this
controversy, did deal with different conduct, i.e.,
interpretation of contractual terms, than would
the NLRB which would be required to decide
whether the -Union discriminated against Lock-
ridge. At bottom,, of course, the Union's action in
procuring Lockridge's- dismissal ' from ' employ-
ment is the conduct which, Idaho courts have
132; Zenith Radio C07.0 77 NLRB No. 30. The average is less than two
such cases per year.
Contrary to the majority's fn. 11, the early case of Consolidated Aircraft
Corporation, 49 NLRB 694, has been overruled by disregard ,if not by I name.
The three cases 'the majority cites as following ConsolidatedAircra t do sot
do so, are readily :distinguishable, and it was the distinguishing features the
,Board relied on for its, decisions . Thus, in, McDonnell Aircraft Corporation,
109 -NLRB 93b, there was a history of union condonation of the employer's
action and the union had pursued the matter through all but the final step of
the grievance-arbitration procedure . In Bemis Brothers Bag Co., 143 NLRB
1311, the union had at one stage notified the employer that it wanted to
arbitrate, and there was substantial ,indication thatthe union had assented
to the employer's action. In Flintkote Company, '149 NLRB 1561, the issue
had gone through four steps of the grievance -arbitration process and was
ready for submission to the final step when the union filed the charge.
COLLYER INSULATED WIRE 851
sought to regulate. , Thus, this second point
demonstrates at,,best that Idaho defines different-
ly what sorts of such union conduct may
.permissibly., be proscribed. This is to say either
that the regulatory schemes , state and federal,
conflict; ;(in; which case preemption is clearly
called for) or that Idaho is dealing with conduct
to which the federal Act does not speak. If the
latter .assertion was intended, it is not accurate.
As pointed out in Part 11 A, supra, the relevant
portions of the Act operate to. prohibit a union
from-causing or attempting to cause an employer
to discriminate against an employee because his
membership-in the union has been terminated
"on some ground other than" his failure to pay
those dues requisite- to membership. This has led
the Board routinely and frequently to inquire into
the proper construction of union regulations in
order to ; ascertain whether the union properly
found an employee' to have been derelict in his
dues-payingresponsibilities, where his discharge
was procured on the asserted grounds-of non-
membership in the'union.
From` the-'foregoing, then, it would seem that
this case indeed represents one of the clearest
instances where' 'the Garmon principle, properly
understood, 'should operate to oust state court
jurisdiction. There being- no doubt that the
conduct here involved was arguably protected by
§ 7 or prohibited by § 8 of the Act, the full range
of very substantial` interests the -preemption
doctrine- seeks to protect are directly implicated
here. (403 ` U.'S. at 292-293.1
Thus it is plain that the principal ground on which
the majority rests its remission'- of this alleged
violation of the -Act to a different and private
tribunal, namely, ' that - an interpretation of the
contract'is or may be necessary in resolving the issue,
is- explicitly and conclusively rejected by Lockridge.
Indeed, the' substance' and even some of the phrasing
in ' Mr . Justice White's dissenting discussion of the
role of 'arbitration under this Act are practically
identical to the argument of the majority here. 403
U.S. at 309 . But the Court rejected this argument,
stating:
His position` apparently is-that Congress consid-
ered -any state tribunal equally-capable, with the
Board, of assessing the appropriateness of a given
remedy and was unconcerned about disparities in
the reactions of the States to unlawful union
behavior. This argument, too, seems incompatible,
with the simple fact that Congress committed
enforcement of the federal law here involved to a
centralized agency.
For these reasons, , Mr. Justice White's analo-
gies do not persuade us. [403 U.S. -at 288-289, fn.
5.]
If the Supreme Court is unwilling to give to-state,
courts jurisdiction to decide suits which "arguably"
involve an unfair labor practice under-the Act and at
the same time involve a contract interpretation issue,
this _ Board can hardly relinquish its paramount-
jurisdiction to _a private tribunal or, to an arbitrator
whose decision by definition has no precedential
value, whose determination may not,decide or touch
upon the statutory violation, and whose award may
not remedy present statutory violations and cannot
control future conduct, however-unlawful the present
conduct may have been. In yet another respect,
Lockridge was a far stronger case than this for
allowing the other tribunal to decide, for the state.
court there had rendered a decision, and the decision
went only to the contract interpretation issue. Here,
in, contrast, the Board majority is remitting an unfair
labor practice case to another, tribunal which no
interested party has sought-to invoke, and it is doing
so simply because of the existence under the contract
of arbitration as a method of settling disagreements
over contract terms. Lockridge -is conclusive Authori-
ty that the Board lacks the power to take even the
first step toward relinquishing Or undermining its
jurisdiction.
Lockridge cannot be distinguished from the present
case on any supposed greater concern of -Congress
with closer and more uniform.- regulation of the
union-security clauses - involved ' there than-, of the
unilateral modifications of ' the contract =which are
involved here. If there is any difference discernible, it
is; that Congress was'more concernedwith.empower-
ing the Board - to control and remedy unilateral
changes, which strike at the heart of collective
bargaining, than it was, with union-security clauses.
Section 8(a)(5) of the Act, proscribing refusals "to
bargain collectively," would seem fairly plainly to
include unilateral modification or termination of the
collective-bargaining agreement,33 yet so intent was
sa 'Member Brown , whose separate concurrence creates the majority,
argues that arbitration is an integral part of collective bargaining, and that
in order to foster collective bargaining, the „Board should allow it to work by
compelling the-parties to resort to the procedure they have themselves set
up. This ' view, of course, ignores the '-fact that Section 8 of the Act,
prohibiting unfair labor practices, does so, as stated in, Section 1, in order to
afford "protection by law of the right of employees to organize and bargain
collectively." (Emphasis supplied.) That is, the collective bargaining must
take place free of the distortions of unfairlabor practices , or it is not the free
collective bargaining which the statute contemplates.
Member Brown's distinction between disputes about agreements previ-
ously reached, which he would defer to` arbitration, and actions related to
"acqu
isi
usthon of future rights," which be would not defer, does not seem to
me to be workable : In most of the cases which reach the Board , "it is sought
(Continued)
852 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
Congress on protecting agreements against unilateral
action 'that it again spelled out specifically in Section
8(d) that "the duty to bargain ' collectively shall also
mean that no party to such contract shall terminate
or modify such ' contract ...." Union-security
clauses, on - the - other hand, are authorized in
specified circumstances as an exception to the
prohibition of encouragement or discouragement of
union membership in Section 8(a)(3). In importance
to the statutory purpose and scheme , control and
regulation of unilateral changes in or termination of
agreements , which vitiate the agreement and the
bargaining which preceded , it, is, of course more
central' to the ,' viability of the national policy of
collective bargaining than is the item of union
security. Consequently, the preemption,rationale of
Lockridge is a ,fortiori applicable to the present case.
But even prior to the teaching of Lockridge, it was
clear that the Board is not free to refuse to decide
cases of this type because of some "policy" favoring
arbitration over our own decisions . An individual
employee has the right ,'under Section 9 (a) of the Act,
to 'present his grievance individually to the employer
and have it settled individually , without the interven-
tion of the union: Consequently ; he has the right to
present to this Board , apart fromand without being
limited by any - grievance-arbitration process , alleged
violations of the Act which have impaired those
nights of his- which , the Act protects 34 This matter
was, settled ° by the Supreme Court in N.L.R.B. v.
Marine 4, Shipbuilding , Workers of Americo,
AFL-=CIO, 391 U .S. 418, (1968), in which the Court
held unlawful a union's imposition of a fine on a
member, in accordance with the union's constitution
and bylaws , for filing with the Board a charge against
the union. The Court rejected the views - of the lower
court , that the union's right, under Section ,8(b)(1)(A),
11to, prescribe its own rules with respect ,.to the
acquisition or retention of membership",permitted it
to establish a valid rule which, by requiring exhaus-
tion of remedies within the union,.gives the union "a
fair opportunity to correct its own wrong before the
inured member should have recourse to the Board."
The Court held that where unfair labor practices are
alleged, "other considerations of public policy, come
into play," that "if the , member becomes , exhausted,
he issues of public policyinstead Qf the remedies, the'
are never - reached and , an airing of the , grievance
never- had," that a ' charge may implicate both 'the
union and employer so that "comprehensive and
coordinated remedies" become necessary and appro-
to chwge the terms of one [existing agreement p' and where such change is
sought, this will confer or affect "acquisition of rights for the future." Elgin,
Joliet &^Faslern 'Ry. Ca v. Burley, 325 U.$.'71 1, 723.
3'w" Moreover, the Board has the affirmative duty, under Section 10(m) of
the Act, to process the individual's charge of discrimination expeditiously,
assigning to it priority over other matters . Given thus concern for the
priate, that "[a]ny coercion used- to discourage,
retard or defeat [the individual nember's]' access [to
the Board] is beyond the legitimate interests of a
labor organizations," and that "overriding,' public
interests makes 'unimpeded access ` to the Board ° the
only healthy alternative, except' and unless, plainly
internal `affairs of the, union` ' are 'involved."
Thus, internal rules and discipline established by a
union's constitution and` bylaws cannotixnpede an
employee's access to ' the Board for a determination
of a violation of his statutory rights, despite `the fact
that the, individual has "assented" to such rules, and
discipline upon becoming a member. A ' fdrtioi'4 a
union's and employer's agreement to arbitrate
violations of the individual's statutory-rights, lacking
even the ostensible justification of'any' substantive
clause of -the Act, and "assented th" by the individual
only through his bargaining representation: by the
union instead of the more specific acquiescence in.
internal union rules ' which union membership' im-
plies, ` cannot impede the individual's access to the
Board. If the union `and employer' cannot lawfully
provide in the collective-bargaining agreement-'that
the employee must resort to arbitration instead of
coming to the Board to remedy a violation of the
statute-and I understand my colleagues to agree
that such a provision could be voided by the
Board-then under Marine & Shipbuilding Workers,
the Board cannot frustrate the "public interests"
involved by itself closing the gate.
The Board majority is, imposing a sort of "waiver"
of statutory rights--the , right,,- of access , to 'the
Board-arising .from a provision for arbitration. But
the courts have long and plainly ; held` ,that such
statutory rights of the individual employee cannot be
waived by agreement between the,uniof and employ-
er. For example, in Lodge 743, IAM v. United,Aircraft
Corp., 337 F.2d 5, (C.A. 2), a panel, of retired judges
of a state supreme court made an arbitration,award
which, by its terms and by agreement of the union
and employer, denied reinstatement to some 36
employees alleged to have been discriminated against
in violation of, Section 8(aX3) of-this Act,-and further
barred the filing with. this Board of unfair. labor
practice charges seeking to remedy such .violations.
In deciding that the award could not bar access to
the Board, the court held:
The standard rule in cases such, as this, enunciat-
ed in numerous decisions of the Supreme Court,
this court, and the courts of other circuits, is'thac
the right to resort to the Board for relief against
"individual deprived of a paycheck as the result of an unfair 'laboi'practice,"
there! is, in my opinion , no ground to's"dpport the argument that the Board
may stay its hand merely-because arbitration is available. 105 Cong. Rec.
6044 (dally ed. Apr, 25, 1959), II,Leg, His`t. (LMRDA,1959), 1253 (quoted
remarks of Senator Mundt).
COLLYER INSULATED WIRE
unfair labor practices cannot be foreclosed 'by
private contract. [Citations omitted; 337 F.2dd'at
8.]
and further,
This public interest - in preventing `unfair labor
practices cannot be' entirely foreclosed by a
purely private "arrangement no matter how attrac-
'tive the arrangement may appear to ' be to the
individual participants. Moreover, as ` the court
below pointed out, "The Board was designed to
prevent any unfair economic pressure or 'expedi-
ent ^ arrangements condoning unfair labor, prac-
tices.". 220 F.Supp., at 24. The, aim of the act to
give special .-protection to the economically
vulnerable would-be defeated if contracts entered
into ' because =of .. that very vulnerability - were
enough to preclude enforcement of the Act. [337
F.2d at 9.1
So far as Congress has -expressed any view
concerning' the desirability of shutting off access- to
the =Board where arbitration is available, apart from
the enactment of statutory terms which prohibit it,
the view of, Congress ,has plainly been against
denying.-access. In 1959, Congress amended; Section
l4(c)(1)^ of the Act, empowering the Board to decline
jurisdiction over employers whose activities were
economically and financially--too small to have any
substantial effect on commerce, so as to prevent the
Board, from declining . jurisdiction , over- any -labor
dispute over,which .it previously would have; asserted
jurisdiction. Thus Congress has evinced a concern
for the Board'sprotection of statutory rights, and the
maintenance ,of access to the i3oard, wholly at odds
with, any `fpolicy" which-my colleagues may have in
mind 35 The tSupreme -Court has shown an equal
concern that,--the: Board- actively protect those
statutory rights committed to, its, -care. In Vaca v.
Sipes, 386 U.S. 171, _ 183,. the Court- commented on
the Board's "tardy entrance" into the field of fair
representation, and considered such reluctance to
warrant, in part, the Court's refusal to apply the
preemption yrule in such cases. Marine Shipbuilders
insured,the inability of private arrangementse ents to cut
off access to the Board and Lockridg applied the
preemption' rule- to cases involving both a breach of
contract and an: unfair labor practice. And; the Court
long F ago `. corrected, .the Board's unwillingness' to
decide jurisdictional disputes. N.L.R.B. v. Radio &
35 The majority misreads the legislative history of the Taft-Hartley
amendments in finding therein (fn. 8, supra, and accompanying text) a
suggestion that Congress anticipated the Board would develop a policy of
entertaining onlyrthose cases winch cannot be settled by arbitration. The
Senate Committee "comments , were directed to two proposed sections,
8(a)(6) and ^8(bbX5), which-would have made it an unfair labor practice-to
breach a contract of-refuse to arbitrate pursuant to an arbitration clause. As
the Committeeacknowledged (S.:Rept.105, 80th Cong., 1st. Sess . 23,1 Leg.
Hist . LMRA 1947, 426-427), the new provisions would -have- given the
Board jurisdiction over Section 301 suits. There was no mention made of
853
Television Broadcast Engineers Union, Local 1212
(Columbia Broadcasting System), ` 364 - U.S. '573.
Indeed, it was uncertauitiy Tabout the Board's dili-
gence: in performing its statutory duties which largely
caused `the dissents in Lockridge. In the face of the
Supreme Court's plain and repeated command that
the Board must°perform the duty of deciding unfair
labor practice cases, the majority's refusal ' `to do so
approaches contumacy. -
To defeat the preemption doctrine and justify their
refusal to decide this : case .and remitting ° it to an
arbitrator, the majority relies on Carey- v. Westing-
house Electric Corpor'ation,•' Smith --v. Evening Newvs;
the Steelworkers Trilogy (supra); - and Boys Markets
(supra). The reliance is' misplaced in every, case. In
none of these cases was an unfair labor, practice
involved. Both Carey ' and Smith were suits under
Section 301 of the Act in which, as the Court held- in
Lockridge, "Congress -authorized federal courts to
exercise jurisdiction, over suits ` brought to enforce
collective bargaining agreements" and "individual
union members may sue their employers--for breach
of a promise embedded in the collective bargaining
agreement," but "[p]lainly, however, [Lockiidge's
suit] is' not such a lawsuit," and those cases have no
bearing on the issue. 403, U.S. ' at 298-299. Boys
Markets is equally irrelevant, for the same reasons; it
added ' to 'Carey and Smith only the proposition that `a
mandatory arbitration clause enforceable' under
Section 301 plus a no-strike clause is sufficient
ground for enjoining a 'strike which violated the no-
strike clause.
The 'Steelworkers Trilogy is the primary source of
the asserted "policy" of remitting - this case to
arbitration for decision instead of "deciding it
ourselves, but the Trilogy is as_' irrelevant as -Carey,
Smith, and Boys Markets, for substantially the same
reasons. None of the Trilogy cases, involved any
alleged violation of rights' protected` under this Act.
Rather, the first- two of them were efforts by the
union to compel the employer to arbitrate in
accordance with the provisions of the contract, and
the third was an effort to enforce an arbitration
award 'already made without going into the merits a
second time before the courts. In, all- three cases, the
dispute was over whether the employer had the right,
solely under, the bargaining agreement and on the
face of its provisions, to take the action he did
deferring unfair, labor practices to arbitration , the courts, or any other
forum . Thus the distinction drawn in Lockridge between Section 301 suits
(contract cases involving no breach of the statute , over which the Board has
no jurisdiction) and unfair labor practice cases which may depend in part
on an interpretation of the contract (over which'the-Board has, preemptive
jurisdiction) is reinforced by this history. Since the proposed sections were
not enacted, this bit of legislative history is a further indication that
Congress considered that the Board , not arbitrators, should decide unfair
labor practice cases.
i
854 DECISIONS OF,, NATIONAL", LABOR RELATIONS BOARD
respecting individual temployees, for whom the union
then sought to pursue the, grievance-arbitration
route. Many, .perhaps most, of such disputes cannot
•e,brought to or, determined by this Board,36 and the
manifest, desirability of settling them by arbitration
rather than, by striks_ or lockouts is^ hardly relevant
here. .'The reasons the Supreme,, , Court, gave, most
explicitly; in Warrior. 8i Gulf, for fostering and
supporting arbitration in the labor-management field
were several: (1) arbitration of disputes arising under
collective-bargaining Iagreements .which are in great
part "only a generalized code", is "part and parcel.of
the,, collective bargaining process -=itself"; (2) the
arbitrator is, familiar with "the industrial common
law-the practices of the industry and the shop;"
and (3) his ; judgment, will be informed by such
factors as its effects on productivity or tensions in the
shop. But a these very reasons all demonstrate the
differences in ,those cases and the one before-'us
where a violation, of the .statute is alleged. These
reasons are not generally, pertinent to violations of
the Act, and it is the Board, not an arbitrator, which
possesses expertise in the areas protected by the Act.
Indeed,, the Court itself pointed out the, difference,
saying , that in those cases "arbitration is the
substitute for industrial strife" because no other
remedy is available, ,and in contrast in commercial
cases, -(where, judicial fostering and support. of
arbitration is not the policy) F , as in this case,
arbitration is„ merely the substitute for litigation
before tribunals ,with "established" procedures or
even special statutory safeguards.
Themajority have also advanced a new standard
of deference to an, arbitrator's award ` under Spielberg,
supra in stating that the Board will limit its review of
such an award "t6 whether the procedures were fair
and regular' and the results not repugnant to the
Act " Spielberg, ' however, imposed two additional
requirements for- the Board's honoring of the award:
all parties roust have submitted to the arbitration,
and the arbitrator must have decided the issue which
arises under this "Act, ^ i.e., he mush have `made a
determination of the unfair labor practice. Spielberg
represents' a' sort "of 'res jud cats rule, designed to
prevent relitigation of issues and is unrelated to any
"policy" of favoring arbitration. Lockridge, with its
preemption of 'a state court decision which on its face
decided only a cotr'act question, raises 'a serious
ss The exception , of course , is a unilateral change in a contract which
amounts toa refusal to bargain;-and thus is"a violationof'the Act. But most
contractual ,complaints arise-because the bargaining agreement is'ambigu-
ous or silent ow the issue , and the contentions of bothsides have sufficient
support in the facts or practices so as not to be -frivolous ; it is these, and
only these, in which , an arbitrator may be presumed to have greater
expertise than theBoard.
s'r See my dissent 'm Terminal Transport Co., 'Inc., 185 NLRB No. 96.
38 K,iiberg, "The FMCS and Arbitration: Problems and -Prospects,"
Monthly Labor Review, April 1971, p. 40,'41.
question -whether even, the - deference we, have
heretofore accorded arbitration under Spielg can
be continued; that deference ' certainly cannot be
broadened, as the majority would do.
Among- Board decisions which assertedly support
their policy, my colleagues rely largely-on, Schlitz
Brewing, Company, supra. The two-member majority
opinione therein„ subscribed to- by one of the present
majority,, Member Brown,, doesr indeed provide such
support. However, that-opinion did not- "reflect the
views of the Board. I did not subscribe to it because
of my" view that the Board should not defer to
arbitration; rather,, I considered, the" case on the
merits,- and having considered them, concluded to
dismiss the case for lack of merit 37 The other two
members. agreed with my position, that,,,the case
should not be deferred to, arbitration but should be
decided on the merits. They were unwilling however
to- dismiss on the merits. Thus, on the issue of
arbitration; the majority in, Schlitz, was. opposed to
deferral, and there was a majority only for the result
of dismissal. . '
Even if .I perceived any statutory grant of discre-
tion to the -Board to prevent access ° to it because' the
arbitration route is available, I can see no `policy
reason for doing so. To do so does not prevent dual
litigation of the same issue , for Spielberg already
accomplishes this. That to do so, will `result in any
economy of time or money is hardly to be -expected.
In 1970; :arbitration required 164.2 days from filing
of-'the grievance to issuance of the arbitrator's
award,38 and Board cases required' 199 days from the
filing of a charge to issuance of the Trial°'xaminer's
declsion,39 'Even this rather small time difference is
narrowing, as comparison, with earlier yeais
discloses 40 The expense ' , of ' ;arbitration is'-,heavy,
averaging over $500 per day in 19'70,"even excluding
attorneys' fees, stenographers, witnesses, and`hearing
room renta'l.41 Because of this." high cost, as a-
respected `='scholar pointed out to the National
Academy of Arbitrators:
Small unions' or financially weak 'firms may be
"arbitrated to death" and thus legitimate interests
of 'individual workers or managers' ' may be
bargained away because, of 'lack of `funds 'to
process cases. That` this is happening, frequently
by " design ' of the financially stronger party, is
39 Testimony by former Chairman McCulloch on the Thompson bill, 77
LRR 42.
40 Kilberg, op. cat; Annual Report of FMCS, 1966.
41 Kilberg, op. cit,' ,sets the figure at' $539.88. the total expense Is
obviously far greater; in 1971, the. industrial ,relations director at a large
plant of one of the nation 's largest corporations - estimated the ,cost of
arbitration -to , be about $ 1,800 per day for the company and, about $1,900
per day for -the union, with the extra cost to the union resulting from the
greater number of persons participating on the'union side.
COLLYER INSULATED WIRE 855
evident from the many sources in our
profession.42
Both the time and expense may be increased by the
necessity 'of filing a charge with the Board within-, 6
months of the alleged violation in order to prevent
Section 10(b) from barring Board review of the
.award under Spielberg, , To this must be added the
time` 'and expense of- the Board proceeding if review
of the award is sought. And a further suit to enforce
the, arbitration award is always - ^ a possibility.
The "voluntary resolution" characteristic of arbi-
tration which my colleagues rely on to establish that
the awards are effective and, lasting solutions seems,
at least in the cases, which come to the Board, to be
more appearance. than reality. The case arrives here
only because at least one party, and usually both of
them (as in the present case), have not chosen the
arbitration route_ and have chosen, or accepted, the
Board process instead: Thus, the" edge 'in
"voluntarism," for whatever that is worth in assuring
acceptance and durability -'of the determination,
plainly lies with the Board. Indeed, in such circum-
stances- to compel the parties to_ return to the
arbitration route when they have chosen - another
seems to reduce the "voluntary" quality, of the
arbitration to zero. The majority is, in fact, compel-
ling the parties to. use their "voluntary methods"
when the parties have voluntarily chosen not, to do
so, a force-them-to-be-free approach, This can be
self-defeating, for the result will be to encourage the
parties to eliminate arbitration and no-strike provi-
sions from their agreements .43 Indeed, -responsible
officials of -the Steelworkers Union, whose- espousal
and support of ;arbitration led to the Trilogy, have
publicly expressed their dissatisfaction with the high
costs, delays, and massive "bogging-down" volume
of arbitration, all of which led to its use as a weapon
against the union.44 Management-dissatisfaction with
arbitration is likewise substantial45 - -
Nor does arbitration provide an adequate remedy
for violations of the Act. It disposes ..only of the
individual case, rather -than settling a principle. It
cannot -provide a "cease and desist',' remedy, as .the
Board can. It cannot provide other means - of
effectuating the purposes-of:-the Act, such as posting
of notices, or other types of remedy. Unlike the
Board's processes; it can be invoked only by the
union, and not by an individua146- Thus arbitration
cannot speak to or affect future conduct {which may
account for its "bogging; down" under sheer volume,
as 'noted earlier), it cannot effectively protect the
public interest by providing adequate remedies for
violations, and it may sacrifice individual rights
guaranteed by the Act because it is not available to
aggrieved individuals.
The majority is reading---out of our jurisdiction the
statutory protection against all unfair labor practices
which, may involve in part, and perhaps` distantly, -the
interpretation of a contract provision,47 where -the
contract contains an arbitration clause; Most unfair
labor - practices • can be connected -somehow to
contract terms or existing- practices, by broad
construction of general clauses, by the -necessary
inquiry into existing practices, by "waiver,"- or
otherwise. This decision will, of course; encourage
the creation of isuch'clauses where they do not,now
exist. It will also permit unions and- employers to
contract themselves°alnost entirely out of the Act by
writing into their agreements,a provision that neither
will violate any provision ofthe Act, and any alleged
such violation will be arbitrated.48 Under- this
*2 National ' Academy of Arbitrators, Arbitration and Public Policy, 96,
98-99.(1961) (remarks of Professor Irvin Sobel). -
's Such action was proposed by M. C. Weston, Jr., district director of the
Steelworkers Union, in a speech delivered at the University of Tennessee
November`'- 20, 1970,-'Daily Labor Report, November-23, 1970 (BNA).
See -also a report, 'Militant , New Leaders : of Steel Union Locals
Challenge Old Policies," by John V. Conti, Wall Street Journal , March 2,
1971. `
'tt"At the Steelworkers 1970 convention, Ben Fisher, director of contracts
administration of the , union and one of the prime movers in the
development of the grievance and arbitration system , stated that the current
state of many private labor-managment grievance systems is "intolerable"
because of sheer volume, an,'Ii6solute disgrace," and that because of
interminable delays the system is not fulfilling its function.-Union President
Abel was critical of costs, and stated `'There's quite a loss of faith in the
arbitration process." 75 LRR 80, at which an extensive summary of the
convention proceedings on arbitration is reported.
*b Stiober, Voluntary Arbitration of Contract Terms, paper delivered to
National Academy of Arbitrators , Montreal, April 8, 1970, Daily Labor
Report,,May 1 , 1970, p. 7(BNA):
Management complaints against arbitration made by both those
generally dissatisfied with the process and also by some who expressed
satisfaction, singled -out such faults as: a tendency to take the "middle
road" and to render "split decisions" rather than given clearcut ' awards,
which was mentioned most often ; insufficient reliance on contract
language by arbitrators; prolabor bias ; cluttering up the opinion-with
inadmissible evidence; absence of effective review of,decisions which
"while not tainted by corruption, fraud, arbitrariness , caprice or abuse
of arbitral authority, are just plain wrong."
'e In this aspect of arbitration , the, majority's decision conflicts in
principle with the Board 's long-settled position that the employer , as well as
the disputing unions, must be a party to the arbitration process to satisfy the
"agreed upon" requirement of Section 10(k) of the Act. This issue is now
pending decision in the Supreme Court. N.LRB. v. Plasterers 'Local Union
No. 79, Nos. 1184 and 1231. 1971 Term, certiorari granted March 22, 1971.
47 Not every breach of a contract -term insufficient in degree or scope to
amount to a repudiation of the contract provision and thus to constitute a
violation of Section 8(aX4 The, dispute here over rates and work
-assignment for the worm gear removal might , were we to reach the merits,
perhaps be held to exemplify tbis point. The problem is merely the familiar
one of drawing a line.
48 This possibility is hardly farfetched , for Member Brown states that he
would defer also in 8(aXl) and 8(aX3) cases, involving employer interfer-
ence and coercion , and discriminatory-discharge. There is no way to relate a
discharge for union activity to a contract term except by a provision of the
kind we have mentioned. A "discharge for just cause" could not ,justify
deferral to arbitration, because just cause" might exist though the true
reason for the firing was union activity,,which -insofar: as. protected by the
(Continued)
856 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
approach, what is left to protect the public interest in
preventing retaliation against , employees for- giving
testimony or otherwise assisting the ^Board° -in its
processes, retaliation, now forbidden by- , Section
8(a)(4)? What remains to protect the public., interest
or interest °of ."third parties in employer-dominated
union cases under Section 8(a)(2), in secondary
boycott cases under Section 8(bX4), or "hot cargo"
cases under Section8(e)?,And if,my colleagues would
not apply their principle in such cases, , why' not? The
result is that the Board- here abdicates a major
portion of its statutory responsibility. It is small
wonder that one ' respected scholar has expressed
concern that "the . major problem in this area is, the
reluctance of the NLRB to prevent attenuation of its
powers-by a blind'and placid, acceptance of arbitra-
tion- as , an . alternative, ;, rather, than subordinate,
forum." 4s
Cases such as This are an insignificant part of the
Board's workload, averaging only about two per, year
over the, period 1960-70,50:- though, J he , Board's
willingness to entertain them up to now may have
kept the number small by discouraging violations.
Thus it may well eventuate that the Board's new
policy, while=,, reducing- our workload a minuscule
amount, will largely increase the number of disagree-
ments and the work and expense of the parties, in
settling them.
In my view, the law does not permit us to close our
door, to violations of the Act which may,,, be
connected with contracts which contain an arbitra-
^tion clause. Even were we free to ,do .so, alt, the
reasons of logic,-policy, pragmatism, and fairness are
against doing so. The onlypplicy reason apparent to
me • in the majority's, position is what a, respected
scholar, Professor Theodore St. Antoine,, defined
before the 1970 meeting of the Labor Law Section of
the American Bar Association as the "mystique of
arbitration."
For, the foregoing reasons, I would decide this case
on'the merits.
reason for the firing was union activity, which insofar as protected by the
Act, cannot be limited by the contract, '
49 Christensen , Labor Arbitration and fudicial Oversight, 19'Stan. L. Rev.
671, 683 (1967). ,
50 See fn. 32, supra
APPENDIX
ARTICLE IV
Grievance Procedure
Section
Paragraph a. - The following,, procedure shall be
adopted, for any complaint or dispute (hereinafter
called grievance) which may, arise between any
employee or group of employees and the Corpora-
tion, all subject to the rights of,individual employees
as provided for in the Labor-Management,zAct of
1947. For the purpose- of Grievance Procedure, -a
grievance is defined to be ,any controversy, between
any employee,, =or group of employees, covered by
this Agreement, and his Foreman or immediate
supervisor concerning his wages, hours,, or, working
conditions, or between the Ur►ion and- the Corpora-
tion,,involving the interpretation, application, or
violation of any .provision. of this-Agreement or
supplement thereto.
Paragraph b.° Any individual, employee or group of
employees shall have the ` ri t, at any timer; to
present grievances tq ,their em toyer, Providecl said- P , ; .
grievances are discussed in the presence or the
Steward for that department -and' Rather provided
that any, adjustment is 'not inconsistent with the
terms of the contract or-Agreement thenin effect In
the absence`of the Steward, the Business 'Manager
shall- act as the Steward for , that, division.
Paragraph c. If ' the ' grievance' cannon be `adju's'ted
satisfactorily within twenty-four ';(24); hours'by' 'the
Department Foreman and- the Steward; the, latter
shall -take: it up with, the, Business -'Manager` of , the
Union; who 'in turn,' shall - contact -the Foreman
involved, aitd attempt'- to come to 'an agreement
within the next twenty-four (24) hours. At this step,
the ' alleged grievance shall be reduced, to writing ;on
the forms provided for this matter.
Paragraph d--Then, if the grievance is-,still not
settled `withiin ' twenty-four (24) hours, the' Business
Manager, together with the' Steward', will take the
grievance up with.the Personnel Director.
" Paragraph e. . ^ ?Vh6h,,_ this . procedure has' been
followed, and no agreement has been reached under
Article IV,, Paragraph d, within three-(3) working
days, the grievance, and the reply thereto, shall be
submitted immediately in writing to the Adjustment
Committee composed of the Personnel Director, and
two other representatives, of :Management,, one.°- of
whom shall be the General Manager, ' together with
three (3)- representatiyes,.of the. Union, : one, o f ;whom
may be a representative of the 'International Brother-
hood of Electrical Workers.` It is understood that,a
meeting, of A his., Committee, shall be, held. not more
than seven (7) days after -a grievance `has ^ been
submitted to it, except when expressly; extended`'by
either, party in the event the U on.,Representativ or
the General, ^ Manager are not''available and that
every" 'effor`t, will' be „made by,,. both parties tot , the
Agreement to arrive at - , a satisfactory settlement
without delay:' At the „option of either, part; the
aggrieved { employee or the P oreman may be , mvlted
to attend this meeting.
Paragraph, f., .If" any grievance.- involving a. re-
timestudy : reaches the final, stage and there is no
COLLYER INSULATED WIRE
agreement among the members of the Adjustment
Committee, it is agreed that the Union may bring in
an Industrial Engineer, for the purpose of obtaining
facts and data relating to this particular re-timestudy
before it goes to arbitration. The Union will confer
with the, Corporation before selecting an Industrial
Engineer.
Section^2.
Paragraph -a'-', Any discharge or suspension of an
employee is'tobe-reported promptly to the Business
Manager;:, and- the employee may request the pres-
ence- of a Union representative upon notification- of
his discharge or suspension. °Grievances involving the
discharge -of , an°employee'shall be processed immedi-
ately, a.s provided "for-vin '-Article -IV, Section I.
Paragraphs b,,^c, d. and e. and shall ,be expedited in
advance of, 'and,,' in -"preference- to, all pending
grievances, and shallI be reported in writing by the
Business Manager - of the 'Union' to the Personnel
Director within -three (3) wvorking days` after notifica-
tion to Ahe`Busnness Manager.°If it is established that
the discharge'' is not ° justified. such employee will be
paid by the Corporation `for'any loss of wages. for the
working days during his, discharge, 'based on his
average hourly earnings for the previous four '(4)
week-s"employment.
Paragraph b.' Iri''the'event that a Union employee is
deemed, physically unfit by-the Corporation, doctor
as a result of a physical examination after play-off or
illness, or when' he wishes 'to claim another job, the
Corporation will ' assume - any additional medical
expense should it be `necessary to verify Fthe opinion
of the Corporation doctor with ' that of a dully
qualified specialist. The Corporation Will confer with
the Union in the selection of a specialist.
Section 3.
Grievances not presented or advanced within the
time limits set forth in Section 1, Paragraphs b, c, d,
and e, and Section 2, "Paragraph a, shall be deemed to
be settled, and shall not be reprocessed.
Section 4.
Grievances are' not to be, considered if presented
later than thrty` (30) ' days after-the cause thereof is
alleged to have occurred." I`his shall not preclude a
grievance if"it is a`continuing condition, brit, liability
and retroactivity shall not apply beyond the date the,
grievance is processed.
Section''5.
The Business Manager may institute a Union
Grievance on any difference between the Corpora-
tion and-the Union concerning the interpretation or
application of any, of the provisions of°This Agree-
ment. In` filing',_ such'" a."-grievance, the 'Business
Manager shall submit it in writing, and it shall be
submitted directly to the Personnel Director, in the
third step of the Grievance Procedure.
ARTICLE V
Arbitration
857
Any grievance , as defined in Article IV, if, not
settled within ten (10) working days4fter submission
to the Adjustment Committee , shall
'
,be referred to, an
arbitrator,,who shall be designated by the American
Arbitration Association from a list of names-submit-
ted to the parties by the American Arbitration
Association in accordance - with their rules. The
arbitration shall be ..held under the Voluntary, Labor
Arbitration Rules of the American Arbitration
Association and the . parties agree that the decision of
the arbitrator shall= be final and binding upon the
parties, providing such award will not conflict with
any rules or regulations or laws of the -Federal
Government or of the State .of ,Rhode Island. ', The
designated arbitrator shall have.no power or authori-
ty to alter, modify, subtract from or, Add to, the terms
of this Agreement . _The arbitrator-shall !merely render
a- decision applying__ to the .grievance at., hand
according to the terms.,of this Agreement . Expenses
of ° the arbitration shall be, shared ,3equally by ,the
Union and the Corporation. The,' Business Manager
and Presidenyand the International Representative
shall be present at all 'arbitration cases.
ARTICLE IX -
Rates and Time Studies
Section 1'.
The Management agrees to _pay the same base or
hourly rate `to all persons on the same jpb`competent
to perform the same work, and it ' agrees that. no
special rates will, be created'for any employee on any
job.
Section 2.
The Corporation agrees to establish rates and
differentials of pay for all employees according to
their skill, experience and hazards `of employment,
and to review rates and differentials from - time to
time . The' Corporation agrees to pay all operators
their average earnings for samples and unusual
processes ; untgned portions' of ;already rated jobs
will be paid for at an 'allowed pay hour of `8'.8 and
adjustment in pay will be made after the rateis fully
established . It is agreed that untimCd portions of
already rated jobs will be studied within a maxuiium
of one , work week. In the event that this time limit is
not met, the worker will receive his average hourly
rate starting as of the first day. However, no change
in the general scale 'of pay now in existence shall be
made during the term of this Agreement . This Article
IX is applicable to the general wage scale , but shall
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not be deemed to prevent adjustments in individual
rates from time to time to remove inequalities or for
other proper reasons.
Section 3.
Paragraph "a. The Corporation agrees to-time-study
its" manufacturing operations, at any time, on the
basis -`of ` fairness 'and 'equity consistent with the
quality W, workmanship and responsible working
capacities of norinaloperators.
Paragraph `b. It ' is further- agreed that incentive
rates shall be -determined by time-study on the basis
of° 'a- normal`' man `working at anormal rate,' and,
aswhen issued, , are, to be guaranteed- as long'
equipment, materials; process, and conditions remain
unchanged:
Paragraph' c. All incentive rates shallbe kept on'file
in, the ` Foreman's,office, and readily` available to the
workers upon application, to'the Foreman, and notice
to' that effect ' will ' be''posted ,in each department.
Paragraph 'd An' extra copy,of all incentive rates
will' be given ' ' to ` the `'Business Manager, ' with ,` the
understanding"this-his copy will' remain in the' Plant
at allr'times , for the purpo'se-'of making any rate
changes, and when such changes are made, the
Business Manager willbe notified.
Paragraph e. Employeeswill be notified'in advance
of any changes in rates and on newr'processes or on
processes on which incentive rates have not previous-
ly been set. Sheets will be posted showing how
production is recorded' and,,-, earnings computed.
Paragraph f. If the Corporation determines to re-
time any job, the Business Manager and employees
on such job shall be notifies at the time, and the
reason for such re-timing.
Paragraph g. Rates ' on new incentive paid jobs shall
not go into effect until after the Business Manager
and employee, involved have been notified and then
not until after twenty-four (24) hours, unless agree-
able to employee to start sooner. -
Paragraph, h., The Corporation agrees, that it will,
through- its own-experienced Time Study Men,, from
time to tune, re-study any particular operations upon
the written -request of the Business Manager of the
Union after claim has been made to him that any
particular rate is unfair. If any such claim is
substantiated by-such restudy, a, fair adjustment in
the timeshallbe made bby ,the Corporation to apply
on all operations after receipt of the request from the
Business Manager.
Paragraph i. On production jobs that are untimed,
and on ;which no incentive rates have been set, ,a new
operator ',shall be, paid ata rate of 8.8 pay hours "after
f six,(6) weeks `on thehe `has worked for a period"'
machine without the assistance of an instructor;_and'
he shall be' aid' at arate_.of 9.2 pay hours after an
additional Six ' (6) weeks.
ARTICLE XI
Strikes and Lockouts
. -During the ,term of this - Agreement,. the, Union
agrees that it will not authorize a strike or work
stoppage and the Corporation agrees that it will not
engage in a lockout because of any-proposed changes
in this Agreement or disputes over matters, relating to
this Agreement,, or for any other:- reasons not
provided for in this Agreement. The, Union further
agrees that it will take every reasonable means which
are within its powers to induce employees engaged in
a strike- or work stoppage ,in ' violation ; of this
Agreement to, return to work. There, shall be no
responsibility on the,, part of the Union, its officers,
representatives or affiliates, 'for any strike- or, other
interruption of work,unless,specificallyprovided in
this paragraph. All questions, disputes, or controver-
sies under this Agreement shall- , be settled and
determined solely and exclusively, by the conciliation,
and arbitration procedures ,- provided in' this Agree-
ment, except that the Corporation reserves the right
to take such disciplinary actioit,as it sees -, fit against
participants in any unauthorized strike, stoppage or
any other interference with production. However,
nothing, inn, this Agreement shag be ,interpreted,as
interfering in any, way with the,, Corporation's right,
for business 'reasons, to'limit ,or curtail its operations
or to shut down completely when, in its sole
discretion,., it, may deem it advisable to do so.
Whenever feasible, however, , reasonable .notice of
any shut-down shall be,, given, to.. the Union,
ARTICLE , XIII
Wages and Job Evaluation
Section 1.
Paragraph a. The Corporation shall, evaluate jobs
in accordance with Job Evaluation, Plan as set forth
in the booklet-entitled"Job Rating," National Metal
Trades Association, fourth'. editions and in books
entitled;"Job. Rating Survey," Collyer'InsulatedrWire
Company, February, 1963, to 'he used as . a guide
only, and any changes added r thereto by mutual
agreement of both,parties.
,Section 2.
Paragraph a. Effective April 1, 1969, the, Corpora-
tion will, -add twenty (20) cents , per hour to , the.
schedule of rates }for non-incentive jobs and-eighteen
(>8) -cents per hour to` the schedule- of rates for
incentive jobs..
Paragraph b. The schedule of rates for jobs in the
COLLYER INSULATED WIRE 859
various labor grades shall be as follows, effective
April 1, 1960.
Labor Hon-Incen- Incentive'
Grade tive Jobs Jobs
*3A 2.88 ' ,
*45 2.80'
*5C 2.73;,
5 2.58 2.42
6 2.52 2.36
7 2.45 2.29
8 2.39 2.23
9 2.36 2.20
10 2.32 2.16
11 2.23 2.07
'R-killed trades;
list in 14emorsndum of, understanding
Paragrach e. Effective April 1, 1970, the Corpora-
tion `will, add ' eighteen (18)' cents per hour to the
schedule of 'rates for non-incentive jobs and sixteen
(16) cents- per hour to the schedule of rates for
Incentive jobs,
Paragraph d. The schedule of rates in the various
labor,grades shall be as follows, effective April 1,
1970:
Labor Non-Incen- Incentive
Grade tive Jobs Jobs
*3A 3.06
*4B 2.98
*5c 2.91
5 2.76 2.58
6z 2.70 2.52
7 2.63 2.45
8 2.57 2.39
9 2.54 2.36
10 2.50 2.32
11 2.41 2.23
*Stilled trades;
list in Memorandum of Understanding
Section 3.
Paragraph a ' Each- employee whose hourly rate of
pay is above that of the rate of pay established for his
labor grade, will'carry, this rate as' a personal rate
until such time when he is transferred to another job,
at-which time he. will, receive the rate of the job'to
which he is transferred. Employees carrying personal
rates above the rate of their job classification, will
carry this rate only when they are performing this
particular job.
Paragraph b. 'Additional or ' changed` jobs will be
rated. or re-rated by the Corporation according, to the
said job Crating plan. The Corporation shall give to
the Union a copy of the new rating of said, new or
changed job. The Union, -during a period of seven r(7)
days after receipt of the--new rating will study and
make known any, -objections during this period. If
there are any objections submitted, by the Union
which are not acceptable to the Corporation, such
differences shall be submitted to the ;Adjustment
Committee in accordance with Article IV, Section 'l,
Paragraph e, for their consideration and settlement.
In the event no settlement is reached, the matter shall
be subject to Arbitration under Article 'V of the
Agreement. In the event of adisagreement on a new
rate as established bythe,Corporation in accordance
with the said job rating plan, and the rating,of thejob
becomes sub- ject to arbitration under Article V of this
Agreement; the Union will be permitted to introduce
other factors than those in the -N.M'.T.A. Job
Evaluation Plan to ` substantiate its ease. -
Paragraph c. Learners assigned to occupational
classifications in which' the established rate is greater
than the hiring, rate wilt receive- wage increases
periodically until the employee -is, able: Mto meet the
Corporation's standards of production, at which, time
the employee will receive the established rate for that
occupational classification. Any new employee who
has served the allotted time specified in the experi-
ence factor of the Job Rating for his particular job,
shall receive the full amount in wages stipulated for
the labor grade of that -particular job, P
Paragraph d. Any transfer or change in classifica-
tion to a 'job in a higher labor grade will result in an
increase of wages for the employee to the. rate of that
job, when he is able to meet the production standards
of that job; but not later than the time allowance in
the experience factor as written up in the official Job
Evaluation book entitled "Job - Rating- 'Survey"
Collyer Insulated Wire Company, February, 1963,
and any changes added thereto by mutual agreement
of both parties. Any transfer or change in classifica-
tion to a job in, a lower labor grade will result-in a
reduction of wages for the employee- to the rate- of
that -job. When there is,, work available, for an
employee in his own job classification and the
Corporation requests that he perform a job in a lower
labor grade, the employee shall carry the wage rate of
his original classification.
,Paragraph e. Employees who retain seniority and
are rehired after a lay-off will receive their personal
rates when they are recalled to, the job for which they
were carrying a personal rate . In the event that no
work is available on their particular job and they are
rehired for' another job,, they,- will - receive: the
prevailing rate of the labor grade in which their new
job falls. Former employees without seniority will be
treated as new employees and their rates for any job
will be subject to Paragraph c of this section.
Paragraph f. The clause under Article IX, Section
1, of the original Agreement shall, not apply in the
cases of employees carrying personal rates` above that
of their job classification and labor -grade, that, is,
new, and transferred employees will receive the
prevailing rate of their job ' classification ` and labor
grade while other employees may be carrying a
X860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
higher personal rate , for the same job classification
and labor.grtade.:
Section 4.
Minimum, hourly pay after ninety (90) days trial
period will be two -,dollars ,: and twenty-three cents
($2.23) per , hour. ,,
Section 5.
Employees regularly , assigned to work, on the
second and third shifts shall receive a bonus of five
per cent (5%) of their regular earnings.
Section 6.
Miniinu-in rates , do not, apply in cases of, those
handicapped by age or physical disability, only when
such employees, because of their ' incapacity, are
unable ` to 'accomplish` as im^ch as employees not so
handicapped.
TRIAL= EXAMINER'S DECISION
STATEMENT OP` THE CASE
JAMEs M. FITZPATRICK, Trial Examiner: This proceeding
under Section 10(b).of the National Labor Relations Act,
as amended ,(the' Act), was tried before 'me in Providence,
Rhode Island on April 13and 14, 1970, upon a complaint,
supplemented by a bill of particulars, - alleging, and an
answer denying,' that Collyer' Insulated Wire,- A Gulf , and
Westernr,Systems Co. (herein Collyer or Respondent), had
committed ,unfair labor, practices in violation of Section
8(a)(5) and (I), of, the Act by, unilaterally changing certain
wage rates and the method for computing certain others.
The complaint was founder, on charges filed November 19,
1969, by Local Union 1098, International Brotherhood'of
Electrical Workers, AFL-CIO (the Union)."
Upon'the entire record, my observation of the witnesses,
and consideration of the briefs filed by the General
Counsel and-, the, Respondent, I make ° the following:
FINDINGS OF,FACr
maintenance employees . Thereare now-,about 360 employ-
ees in that bargaining uniti out of a totaf-employee
complement of about 500 at the Lincoln plant. The Union
and Collyer are parties to a current colleciive-bargaining
agreement (the most recent of a long series of agreements)
covering these employees , the, basic terms of which were
agreed upon May 9, 1969, and eventually ,signed on
September 16, 1969 , covering the period April r1, 1969, to
July 2, 1971.
III. THE ALLEGED UNFAIR ' LABOR PRACTICES
A. The Issues
It is undisputed that on November 17, 1969 , Respondent
installed new wage rates for certain skilled labor grades
described as grades 3A,' 4B, and SC,-and a,newfimethod of
computing, incentive wage rates fqr ;operators and helpers
on extruder machines . It made an additional change with
respect to incentive rates , for c ierator& and, helpers on
extruder machines on February 16, 1910: The General
Counsel contends that-these changes were unilateralarid
unlawful. Respondent contends it did not act unilaterally;
that the changes- were, proper- subjects which flee ,'Union
could have taken through the grievance and^arbitratioin
procedure provided in the collective -bargaining agreement,
but did not ; that with respect to. the changes in the rates for
skilled labor ' gr ades it had economic justification for the
increases, discussed the problem with the Union, and had
reached an impasse on the matter before making the
changes; and that with respect to the changes regarding the
employees on the extruder , machine ,changes in the
incentive rates historically had been made unilaterally by
management, and in any case the Union ,`did not really
object to them.
It is also undisputed that in the autumn of 1969
Respondent altered the procedures for changing the worm
gear in extruder machines . The, General Colxnsel contends
these changes-were also , unilateral and unlawful. Respon-
dent apparently does not take issue with the: contention
that they were, unilateral. Its position is that the, changes
were, -insignificant matters within the normal v ambit of
managerial discretion under the extant , collective-bargain-
ing agreement, and, further; were matters .which,' if
object̀io`'nable to the° AUnion,` could, "hav'ebeen `'-'proces§ed
under the grievance and' arbitration- provisions dl 'the
I. THE BUSINESS OF_ THE EMPLOYER
Collyei is a Delaware' corporation engaged at Lincoln,
Rhode Island; in the manufacture and We of insulated
wire and cable.' In the, conduct of its °business it annually
receives at its Lincoln plant from points outside' Rhode
Island metals and other materials having a value in excess
of-$50,000,and annually ships from its Lincoln plant to
rots outside Rhode Y_ Island wire and cable productsppoo
i e s f $50 000h i g a lva n exc o ,av ue s .,n
II.' THE LABOR ORGANIZATION INVOLVED
^'The`,Union' is' a= labor, 'organization which. admits to
membership employees ofCollyer and since 1937 has been
the exclusive representative of Collyer's production and
i Respondè`nt admits the bargaining unit is appropriate for purposes of
Section 9(b) of the Act ,The" unit consists of all production and
maintenance, employees of, Respondent employed at its Lincoln, Rhode
Island plant, but excluding all-office and clerical employees, timestudy
contract, but were.not.
B. The Changes°
,An important aspect of. Respondent's operation is he
application of insulating material, usually, rubber or plastic,
to wire. T is involves the use of machines cs led '` xtruders
through which preformed wirers passed with-the-result that
the insulating material-Is, formed around°theswire.,Collyer
has,from;12 to -,14 such extruder machines . in operation.,
Each, is, manned by-an operator, and, one helper (grin some
cases one helper for two machines) and is in use through
engineers, chemists, engineers,- draftsmen ^ Si d" other technicians ` not
engaged- ' in, production '; activities, professional employees, ^ ,watchmen,
guards, executives, superintendents,,foremen, assistant foremen. and other
supervisors 'as defined in Section 2(1'1) of 'the Act.
COLLYER INSULATED WIRE
three work shifts. To maintain the machines in working
order as well as to do other maintenance work in the plant
Collyer employs maintenance mechanics, principally ma-
chinists and electricians, who are generally referred to as
mechanics in the skilled trades.2
One part of the extruder, referred to as the worm gear,
feeds the rubber orrplasticinsulating material into the head
of the extruder by means of circular motions, thereby
pushing the insulating material into the head so that it can
be wrapped around-the wire. From time to time; particular-
ly when a change is made in the type of insulating material
being-used, -it is necessary to remove the worm gear from
the machine-in order to clean it-out. Several years ago the
practice- had been- for the operator of the machine to
perform this function. But because of the difficulty and
risk in- removing,-'handling, and reinstalling this heavy and
expensive -part, - Collyer ° abandoned this procedure and
adopted the practice of assigning' two maintenance
machinists to perform the job. More recently it has
experienced a shortage of skilled - craftsmen including
maintenance machinists. In order to meet the problems
posed by this shortage it now- schedules extruder machine
runs to allow for changing- the worm gear less frequently,
about once a : week. Previously the change had- typically
been made- several times a week. Starting November 12,
1969 only one maintenance machinist was assigned to the
job of pulling the worm gear and the extruder operator and
his helper -were- directed to- assist when, necessary.3 The
change in the procedure for worm pulls did not involve any
change in pay for extruder operators or helpers.
Extruder operators are not paid just on the basis of
straight -time ' worked. They` are paid for ' time their
machines are producing (as distinguished from time during
which the machines' are not operating) according to a
formulafcalled- an'ncentive rate. Under this formula if they
keep the machine producing for certain minimum periods
set out in the incentive rate formula, they receive credit for
having run it for a, longer-period. Thus, -if a machine runs
for 8 straight hours of what is-referred to as productive
time, the operator is given credit for more than the 8 hours.
The amount of time thus -credited is called pay hours.
Incentiverates are alluded to, but the incentive formula'is
not spelled' out, in the collective-bargaining agreement. On
November' 47, 1969,' -Collyer` changed the, formula for'
incentive` rates. For operators on two types"bf machines,'
the D-44'and D-45, the pay hours in the formula for an'8-'
hour , run were increased from- 10.0 to 10.6, and for,
operators of- two other types of machines, the D-10 and D-
11,'the pay hours-in 'the formula were increased from 10.0
to 10.3. - "
In addition, in some operations D-44 and D-45 extruder
machines are equipped with an additional extruder head,
thus performing a double function called the tandem
operation. The operator and helper on such machines
receive an added -premium over and above their regular
2 The skilled trades, are those classified as labor grades 3A, 4B, and 5C.
Included , in labor , grade 3A are electricians, and tool and die maker;
included in labor grade 49 are electricians , machinists maintenance,
maintenance=men building, maintenance mechanics, pipe and steamfitters,
sheetmetal, workers, and die maker ; included in labor grade' 5C are
machinists maintenance , an welders, maintenancemenrbuilding , and pipe
and steamfitters. Carpenters are also included but the record does not,
pay. On November 17, 1969, - Collyer increased this
premium from 5 percent to 7-1/2 percent of productive
time.
Operators of extruder machines are paid weekly. Prior to
November 17, 1969, their weekly pay was - an average of
their individual hourly rates for the week. Of the. three
shifts, however; the second fared best paywise,because the
third shift which terminated operations at the end of the
week -had to shut down, and clen up, which, was
nonproductive time and payed for at ' the lesser nonincen-
tive rate, and the first shift which had to set up and
commence operations on Monday mornings likewise
received the lesser nonincentive rate for that work. To meet
this apparent inequity Collyer directed-that as of,-Novem-
ber 17, 1969, the earnings for all three shifts on each
machine be pooled on a weekly basis, and-that each shift
operator receive one third of such pooled weekly earnings.
These November - 17 changes, namely the changes in
incentive rates, premium for the tandem operation , and the
pooling, were instituted for -a trial period of 12 weeks with
a verbal guarantee from Collyer to the operators that they
would thereby experience no loss in,earnings.
In addition on November 17, 1969, Collyer put into
effect a 20-cent-per-hour raise, called, a- skill factor, 'over
and above the wage rate set out in the collective-bargaining,
agreement for mechanics in labor grades 3A, 4B, and 5C. It
accompanied this raise with- the offer to review together
with the Union. all jobs, according to its job evaluation
system and reevaluate jobs based' on changes in job
content, and to study the existing wage structure for the
various labor grades with the purpose of realigning wage
scales to provide for a more equitable wage structure for
the next-collective-bargaining agreement.
On February 16, 1970, because,of-union complaints that
under the new incentive rates the operators on the D-10
and D-11 extruder machines were being disadvantaged by
the pay hour formula- which provided for a 10.3 pay, hour
incentive rate, Collyer raised that pay hour rate to 10.5.
C. Pertinent Provisions of the Collective Bargaining
Agreement
The current collective-bargaining agreement contains
some provisions pertinent to a consideration of the alleged
unfair labor 'practices; Thus in article IX of the agreement,
entitled "Rates and Time Studies," Collyer agrees to pay
the same rate to all employees doing the same work ' and,
"Agrees to establish rates and differentials of pay for all
employees according to their skill, experience and hazards
of employment, and to review rate's and differentials from
time, to time." Another part of the same provision provides,
"However, no change in the general scale of pay now in
existence shall be made during the term of this agreement.
This Article IX is applicable to the general wage scale, but
shall not be deemed to prevent adjustment in the
indicate in which labor grade.
3 Company directions to extruder operators in this connection were; "1.
Hold pipe for mechanic as pipe is being sledged. 2. Guide worm and head in
for hookup with chain-hoist and lower ' to truck. 3. After worm is cleaned
assist mechanic to book up worm . Guide worm into cylinder, bold in any
way .possible, 4. Guide cooling pipe into screw. 5. If hopper has to be
removed help there also.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
individual rates from time to time to remove inequalities or
for other proper reasons." ' I
In other sections of the same article IX Collyer agrees
with' respect to its manufacturing operations to conduct
time studies at any time on the basis of "fairness and
equity,"Rand incentive rates are to be determined by time
studies. Employees must be "notified in advance" of any
changes in rates and if Collyer determines to retime a job,
the Union' and the employees on such job must, "be
notified at the- time" ° together with, the reason for such
retiming. In, addition - Collyer agrees to restudy any
particular operation upon a written request from the Union
that the rate is unfair and to adjust the rate if the
unfairness is- substantiated-by such restudy.
,Article XIII, -entitled "Wages and Job Evaluation,"
requires Collyer to evaluate all jobs in accordance with an
established job' evaluation .plan. A schedule of hourly rates
is set out for the various, types of jobs. With regard to the
skilled trades (labor grades-3A, 4B, and 5C), which are
classed-Pas- nonincentive ,' jobs, ^ a nonincentive rate is
provided. There is, however, a provision in article . XIII
applicable to all jobs including the skilled trades which
allows for, alteration in their pay scale.` This provides that
additional or changed jobs will be. rated or rerated
according to the job evaluation plan. Collyer must give the
Union -a, copy of any such new rating. If the Union has
objections which are not acceptable to Collyer, they must
be ^ submitted through the grievance and arbitration
procedures,,established''by the agreement.
' Grievance and arbitration procedures are=' set out in
articles - IV and ; V, 'respectively. Article IV defines a
grievance, as "Any controversy between any employee, or
group of employees, covered by this agreement 'and his
foreman 'or immediate' supervisor concerning his wages,
hours, or working conditions or between the Union and the
Corporation, ^ involving, the interpretation, application, or
violation of any provision of this agreement or supplement
thereto." Article XI, to the effect that 'there shall be no
strikes and no lockouts, also provides, "All questions,
disputes- or'controversies under this agreement shall be
settled and determined _ solely and exclusively by the
conciliation and arbitration procedures provided in this
agreement ....
,In addition article VIII of the , agreement which deals
with subjectof discrimination provides in_part , as follows,
"Subject to the provisions of this agreement ,,it is agreed
that nothing herein shall affect the right , of the Corporation
to plan, control , and direct plant operations . ,"
D. Background to the Changes
1. Skilled trades
a. Skill factor in past agreement
For several years the Union and Collyer have concerned
themselves with the need for additional compensation for
the skilled mechanics. As early as 1965 the Union asked
Collyer to reevaluate their jobs in order 'to take account of
their special skills. 'At that time Collyer refused to do so. In
1966, however, when negotiating the collective-bargaining
agreement which preceded the one now- in effect, the
Union - bargained -,,for an,increase in wages for skilled
mechanics to bring them up to the level of other employees
with
ry
similar jobs in .other-industries in,- the area. `-As
finalized that agreement, included what the parties now
refer to as a skill factor wage increase for mechanics-,
b. The shortage in the skilled trades
As of January . 1, 1968 , Respondent employed about 40
skilled ,tradesmen, including 30,maintenancemachinists, 7
electricians, and 3 carpenters. During 1968 it lost ,13, of ,the
machinists, but waa fable to hire 7 _ new ones, resulting in a
net loss of,6. During thefirst, 6 months - of 1969,;which,was
prior to Respondent's 20-cent increase for the -; skilled
trades, ' it, lost three more machinists. ,After , the raise
however it was able,, to hire three new ones . During 1968
seven, electricians left and , four ,new--ones were , ;hired,
leaving a net loss of three. During `eariy,;1969 two ,more
electricians left but after the 20-cent . increase was put into
effect - Respondent „ was, able -, to . .hire,, two., -Although
Respondent advertised extensively to, obtain replacements
in the skilled trades, , sought the assistance of the Rhode
Island Department , of ,Employment Security, and, recruited
in , various trade schools, its effortshad_littie success.,In
sum, during - 1968 , and much of-1969 its- staff of "skilled
tradesmen, particularly maintenance machinists and elec-
tricians, continued-to diminish, its efforts to replace those
who left were not successful , and even after it instituted the
20-cent increase on November , I7,, -1969, the number of new
skilled_ tradesmen it was able to- hire was too small to make
up for_ the loss. During, 1969 Respondent contracted out to
independent contractors , some 5,000 hoars of piping ,and
maintenance work, in its plant and some 30 to^ 100 hours of
electrical maintenance work . I find-that at,least part of this
subcontracting was repaired Eby Gohyer's,lack, of in-house
mechanical capability resulting from the shortage = of-skilled
mechanics on its staff.
The evidence, including
'U.S.
an . area wage survey of, the
Bureau, of Labor Statistics Department of Labor, as
well as other data , obtained directly and indirectly ,by
Respondent, shows that prior to, the increase granted such
skilled trades by Respondent on-November 17,,1969, other
manufacturing, concerns rin the , area which compete with
Respondent in,.the labor market for employees -skilled
trades,, and including some engaged in the same type of
manufacturing , as , Respondent, paid such ;mechanics,
particul;srly- maintenance machinists and . electricians,
substantially higher rates than those , paid by Respondent.
The. evidence further, shows , that 'the 20-cent increase" given
the 'skilled trades by Respondent on November 17 was
insufficient to overcome . this, differential.
2. Incentive rates-past practice,
Historically Collyer. has maintained a system of, incentive
rates for operators of extruders. The system, however,,has
not been - spelled out in past collective -bargaining agree-
ments nor is it spelled
`i
n the current one. As pointed, out
earlier the incentive 'system "is one whereby an_operator, if
he keeps his machine in operation for a certain number of
productive hours,-is given credit-for operating it ` for a
greater number of hours as an incentive . The size of this
COLLYERINSULATED WIRE 863
fictitious time-,override is referred to as the incentive rate.
From time , to time in the past it has been changed for
various. reasons , including the introduction of new material,
or a change in the size of the wire reel or type of reel. In
some instances such changes were arrived at by agreement
between the Union ,and Collyer. Ordinarily, however, they
followed as the result of a management -timestudy showing
the need for a revised formula , and were generally
established on a trial :basis bymanagementposting-the new
formula in the plant for the- information,of the operators in
addition to advising the Union of the change. Agreement
of the Union to such a , change was not obtained in
adv ce. Respondent's personnel director, Harold Stanzler,,
credibly testified without contradiction that the incentive
changes involved u, the present matter were carried out in
the same manner , as in the past,except that management
carried on more discussions about them with the Union
than it usually did. The testimony, of John R. Donahue,
Union president, also indicates that historically Collyer put
such -changes into effect unilaterally, and if the Union
objected to them,, it did so after the fact. I so find.,
3. Contract negotiations
-In December 1968 the Union and Collyer began
negotiating . -for 'a collective-bargaining agreement to ,
succeed the' one then in effect which was due to expire "
April 1, 1969, These negotiations continued through the
balance of the term of the old contract and for some time
thereafter. With the expiration ' of the old agreement the
employees on April 2, 1969, went on strike in support of
the Union's bargaining demands . In the meantime negotia-
tions fora new agreement continued and on .May 9 the,
parties- agreed,in principle on economic terms for a -new'
contract,subject to final agreement on wording . On May 12
the employees ended, their strike . Divergent views on the
wording , eventually were resolved and on September 16,
1969, a-formal year collective-bargaining agreement was
executed, retroactive, to April 1, 1969, and to remain in
effect until July 2,1971..
In January, early in, the negotiations the Union com-
plained to Collyer that the existing incentive formula for
compensating extruder operators was inadequate and
unfair. l'1 orev particularly the Union complaints were: first,
that the then existing formula of 5 percent extra pay for
operators of tandem extruders was unsatisfactory; second,
that the basis for compensating third-shift- operators who
were required to clean up the machine at the end of their
shift on Saturday was unfair in that they were not credited
with productive time for such -cleanup period and were
therefore penalized; and, third, that the first shift operators
who started up on Monday morning were similarly
penalized because they were losing productive time during
the, startup.,The Union again raised these complaints in
May around the time Collyer and the Union agreed upon
economic terms for the new collective bargaining. The
Union at ,that time'wan'ted management to reevaluate the
jobs to show the , inequities, and , Personnel Director
Stanzler agreed to study the,matter for the purpose of
eliminating unf airnes's. The contract terms which were then
agreed upon, however, did-not take account of these union
complaints regarding, the incentive pay system. A short
time - later Collyer's chief industrial engineer retired and a
replacement was hired who was unfamiliar with the
incentive system, and, according to Stanzler, was unable to
immediately carry out the promised reevaluation. Stanzler
advised the Union that they would need more time to carry
out the studies.
During negotiations the parties also talked about a skill
factor for the skilled trades. Thus„ during the earlier
negotiations prior to the strike - in the course of making a
wage proposal of an across-the-board increase for every-
one in the plant, Collyer also proposed an additional skill
factor for the skilled trades . Management thereafter raised
the skill factor proposal several times, giving its economic
justification therefore . The reasons , for offering the sepa-
rate skill factor was to encourage new help to accept
employment with Respondent. After submitting the pro-
posal to its membership, the Union notified Collyer in
early April that the members had rejected it and that from
thereon the Union would only bargain for the entire plant
with 'no special increases for any particular group.
The new collective-bargaining agreement did'not provide
for the additional compensation as a skill factor for the
skilled craftsmen proposed by Collyer. However, the
subject in a sense remained open in that the Union
indicated its willingness' to approve additional wage
adjustments if such could'be-arranged' in `accordance-with
the job evaluation system. The precise position of the
Union in this regard is a matter of dispute. -Stanzler's
understanding of the Union 's position as recapitulated in a
company letter to the Union of November 1'3,' 1969, was-
that the Union would ' agree to an additional, wage
adjustment for craftsmen if such could be ' arranged -m
accordance with the' job evaluation system. According to-
Union President-Donahue, the=union position was that it
would agree' to an additional- -wage adjustment for
everybody if it could' be arranged in accordance with'the
job evaluation system. The testimony of Union Business
Representative Joyce tends to corroborate that of Dona-
hue. Also Donahue's version is consistent with-the Union's
position that it would not bargain for- a special -group but .
only for the employees as a whole: On^the other hand, until
the hearing herein no one from the Union ever indicated,
that the recapitulation in Stanzler's letter of November 13
was inaccurate. Also,, cross-examination of Donahue
showed him to be in many respects a confused witness. On
the other hand, Personnel Director Stanzler, who'authored
the November .13 letter,- was not present "at two of the
negotiating sessions in Boston on May 6 and 7 during
which the problem of a skill factor for the skilled trades
according to Donahue was discussed in the, context of a
general job evaluation for all employees. In the circum-
stances I find there-were differing-understandings of what
the union position was. I, also find, however, because
Stanzler was not- present at the Boston meetings, that
Donahue's version more accurately reflects the position
taken by the Union.
4. Autumn 1969 discussions
In mid-September, during the procedure for signing the
collective-bargaining agreement as finally ' settled upon,
Collyer raised 'with the Union the matter of increasing the
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rates for the skilled trades. Again on" September 29 when
they met for, the first of a series of monthly meetings' to
discuss mutual problems, management brought- up its
problem regarding the- skilled 'trades. It claimed it was
unable to recruit maintenance machinists or -electricians
because of its unfavorable wage rates, and that although
pursuant to the Union's suggestion it had attempted to
reevaluate the skilled jobs under its' reevaluation system,
the established' wage structure was such that any`-increase
which could be worked out for themwouldbe too small to
alleviate the problem.
Pursuant to the Union's 'earlier complaints regarding
inequities in the extruder operations, the new timestudy
engineer had eventually completed his study and made his
recommendation for changes in the incentive system. At
the September meeting management suggested • these
changes to the Union. These were, as noted hereinabove,
ultimately put into effect on November 17. There is no
evidence that at the September meeting the Union objected
to the proposed incentive changes.
About October 21 the ' second' monthly meeting was held.
Management again broughtvup the matter of the rates for
the skilled, trades and' {asked the Union for its comments
and cooperation in attempting to work out some method of
alleviating the problem. The-Union, however, was unwill-
ing ,to negotiate the matter unless Respondent undertook a,
complete, reevaluation of all jobs.
At this meeting Respondent also explained that it was
going . to put into effect the new incentive system for
extruder operators which it believed would bring up the,
earnings of -both,,.operators and helpers and benefit all
concerned., The Union then suggested that the =operators
and helpers be broughtstogether in,a meeting so the new,
plan could be explained, to them. The record does not
establish that the, Union then objected to these proposed
changes. ., 1
There is also evidence that by the time of this second
monthly meeting extruder operators had already been
asked to partially assist- in the changing of the worm gears.
There is evidence to indicate, and I find, that Respondent
and the Union discussed this at their second monthly
meeting. The Union did not at that, time object to the
added,duties because all that was involved was assisting in
taking out the worm and putting it down. However,-when
the operators were later directed as of November 12 to
hold the pipe, help the maintenance men disassemble the
4 The text of the letter is as follows:
During the past month, at several of the meetings between the
Company and the' Union Executive Board, we have discussed the
`situation of the inequitable rates for skilled craftsmen in Labor Grades
5C, 4B and 3A,,, We have repeatedly pointed ,out that: unless some
adjustments were made , we,would lose some ofthese men to other
industries paying higher, rates and that we would be unable to hire
craftsmen to replace them . The loss ofany of our craftsmen at this-time
would seriously affect-our machine maintenance program and would
result in a curtailment of production and business ,-and a reduction in
working hours for the rest of the employees in the shop.
During the recent negotiations of our -new contract, the Board
indicated that it would agree to an 'additional wage adjustment for
craftsmen, if it could be arranged in accordance with our current job
evaluation system . Since the present system -cannot provide for this
adequately , the Company is taking , die initiative to, adjust these rates
now as a temporary measure , and designating it a special skill factor.
At the same time, we are offering to carry out, with representatives of
machine, .and clean the- gear and then return it to, the
machine, they complained to the,Union. The-record,does.
not establish if or . when, the Union conveyed such
complaints toRespondent.
In accordance With the Union's suggestion management
called-the extruder operators `and helpers, together •'for`a.
meeting-on November 12,=to `explain -to them and-to the
union` officials who were also present, the planned ,changes
in the incentive system. The Union at that time = indicated'i f
was not iil'accord With the planned changes, but there is'no
evidence-that it particularized its` objection. ' - " , -
I
On 'November 12 after explaining the incentive system
change to the extruder employees, management and union
officials continued their `meeting without the employees:- At
this time' management informed the' Union it,was-going to
Out into effect a`special•skill factor forthe skilled trades of
20 cents per hour' effective November 17.-`The Union
protested and asked that Respondent put its position in,
writing. " Stanzler agreed to do-S`6 and in a letter to the
Union dated November 13 (G-.C: Exh. 9)-stated'Collyer's
position.4 The Union wanted a reevaluation of all jobs in
the shop, not just the skilled trades. Stanzler agreed to
consider reevaluating alljobs on the condition that the
Union agree to the increase for, the skilled trades. I infer
from the-circumstances that he sought union agreement to
an immediate raise for the skilled trades.. The Union did
not agree.
5. Discussions after-the changes
Two days later on November 19 the Union filed they
charges herein. On January 22, 1970, at a meeting sought
by management in an' effort to settle, the 'charges, the
Union restated its position that it wanted a" complete: job
reevaluation and- that if Respondent was Willing, ° they
would open, the contract for the purpose of renegotiating
wages generally. -This portion of-their discussion apparent-
ly arelated only to the problem of the skill factor instituted
on November 17. With respect to the changes',put into
effect in the incentive' system for extruder operators, the
Union indicated only that the operators were not satisfied
With the pooling 'system, and, in accordance, With, the,
Union's"suggestion Respondent agreed- to meetagain with'
the operators in order to" learn more particularly how they
felt 'about the pooling. There is no evidence that the Union'
at, `this time .protested any other aspect of -'the changed`
the Union, a complete review of the, Job Evaluation System together
with the wage-structure for the various labor grades, as provided for in
our present agreement.
Aceordingly, as indicated in the discussion held withthe-Executive
Board' on Wednesday, Nov. ', l2, ' 1969, we will pro eed 'with the
following measures:
I. Effective Monday, Nov. 17, 1969, all craftsmen in labor Grades
5C, 4B, and 3A will receive an increase of20 cents anhour as a,,special
skill factor added to these labor grades. ,
2. Review all jobs according to our1lpresent job evaluation system,
with the aid of an engineering consultant, and re-evaluate jobs based
on changes in job content since ourlastreview
3. Undertake to study out presentwage^structure'with the purpose
of re-aligning the wage scale of the various laborgradesto providefor a-
more equitable wage structurefor, our next ,contract. We propose this as
a, joint venture , for a committee of four, two-to be, selected by the
Executive Board and two to be selected by the Company.
COLLYER INSULATED WIRE 865
incentive'system or that anything was said regarding the
added duties in changing the worm gears.
In early February 1970 the Union objected to ',the
incentiveplan for extruder operators on the D-10 and D-11
machines on the grounds ' that their pay hours under the
formula were too • low compared with those for the, other
extruder machines . Management's information from its 12-
week trial period with the new incentive system bore out
this contention. ,-, ,
Pursuant to the ,Union's suggestion Respondent-called a
as unionmeeting , of extruder operators and helpers, as well
officials , for, February 16_ for the purpose , of discussing-
incentive system . Management ;announced that it was
adjusting , the. formula for extruder' operators on the D-10,
and D, I 1 -machines, by raising,the pay , hour figure from
10.3, to ,10.5.` T ,e_ Union voiced no objection , to this., The
evidence indicates that the increased earnings for extruder
operators under the new incentive system were not an issue
between the parties . According to Union President
Donahue the Union continued to object to the pooling but
ii other regardsd ' did ,not complain about the incentive
system. ' He "also -testified , and I find, there was no
discussion aboutfthe increase for'the"skilled trades: There
was, however, according'to Business Representative Joyce,
whom ' I I credit,' discussion about the increased `amount'of
wofk - for -extruder 'operators involved in their assisting, in
the pulling ofitheworm'gear. , - .
In March Collyer ' and the Union -net twice. At the first
of-- -these meetings on -March 10, according to Business
Representative , Joyce -, the skill factor question was dis-
cussed Stanzler-offered to abolish the-20-cent skill factor
instituted , on_November 17 if -the Union would agree in
writing to an A im,,, hdi e, special -job evaluation . for the
skilled , trades 3a a manner which would justify immediately
reestablishing ,,the,20;cent skill factor . The record does,not
indicate specifically what if any response the Union made
to, this . proposition but, I infer from the absence of any
eidence _that.it ' was accepted as 'well , as, from , other,
evidence in the record that the Union position regarding ;the.
skill factor has remained substantially unchanged, namely,
that it.would not negotiate for a special group .but was
amenable . to 'a, general reevaluation of "alljob is and was
willing to open ; the contract for renegotiation of all wages,
and -that it ' did not; accept Respondent's, proposition.
On March ' 31 the parties met again and discussed the
pooling aspect of`the incentive plan to which the Union
continued to object., Staazler indicated willingness to' drop
pooling , if, the 'Union so ` desired. nut"the Union deferred
taking any' definitive position because it had a membership
meeting' coming 'up. on April's' and' 'd`esired to place the
issue of 'pooling `before its members : The- Union also
indicated that --'tho extruder' operators werei issatisfied'with
the' requirement ', that-, they , perform maintenance,=work
(assisting -in pulling the worm gear) while not receiving
additional compensation^in ' the form of askill factor as did
the mechanics, and also. that -they were -not adequately
compensated, for, working -the, tandem operation. The
Unionkexpressed willingness , to bargain about a skill factor
for extruder operators: - -
At its April, 5 , meeting ;the union membership rejected
pooling. The next day the Union advised management of
the membership's rejection, butit refused to state whether
a return to the prepooling system would be, agreeable. ,
E.' 'Conclusions
1. Incentive system
With respect to the incentive system I find that,
historically Collyer, ' management from time -to time has
made changes on its own without negotiations and,with
only notice thereof to the Union and- the:employees
involved . The existing collective-bargaining agreement
does not specifically prohibit changes in the incentive
system. In fact it provides in'article-IX that incentive rates
are to be , determined by timestudies_ which may be
conducted at any time with the requirement that the Union
and the employees, involved,Fbe notified. If the Union
requests , restudy of a particular operation because, of
unfairness, management , must restudy it, and 'if the
allegation of unfairness is substantiated, must adjust the
rate . In January and again in May 1969 the Union
complained about incentive system inequities and Stanzler ,
agreed to restudy the matter in order to :eliminate the
unfairness. Such-, a study was;' made and the -incentive
system changes of November 17, 1,969, were , a direct,
product of the union complaint followed by the company
study. The further changes on February -16, 1970;- were
similarly the result of further union-tomplaint of inequity
and further reevaluation by management: With respect to,
both ,the November 17 and: the February 16 incentive
changes the Union and employees involved were -timely
advised- of, the changes. Thus the incentive system changes,
were in accordance with past practice, were not inconsis-
tent .with the current collective-bargaining . agreement, and
did not require further negotiation with.the Union' before
they were put into 'effect; I' conclude,, therefore, ,that
Respondent did ' not engage- in an, unlawful - refusal to,
bargain in violation of Section 8(a)(5) and '(1) ;of ,the Act,
when it made the incentive system changes ., See American
Busline, Inc., 164 ,NLRB 1055, In any case the discussions
between ,, management and the Union in advance of the
November ^ 17 changes and , ,those , at the ,, time -of -the
February 16 changes were
"
broad enough to allow of
bargaining if such were required or desired by the Union.
According to the testimony of Personnel Director; Stanzler,
which I credit ,-much more- discussion :accompanied these
incentive system-changes than was usually the case in the
past. Accordingly I conclude-that even if Collyer was
obligated to bargain about the incentive system. changes, it _
fulfilled its, obligation in-this ,matter. Moreover, with regard
to the specifics of the incentive changes,,the-Unionhas had
no, objection -to the change in the pay hours nor to the idea
of an increase in the premium for-the tandem operation. As
to the- tandem premium, the union position was-that-,the
increase was too small., With regard to the pooling of
weekly earnings, which . management offered as, the
solution to specific union complaints, Respondent was
willing to revoke the pooling and,return to the individual
pay basis if-the Union would indicate its willingness, but,
the Union refused to -take , a position on a-return to the,
prepooling system. The Union cannot have it both ways. In
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the--circumstances F _,conclude that , in effect . it has
acquiesced -in the incentive :system changes.
2. The skill factor
In the current collective-bargaining agreement Collyer
agrees to establish rates -''and` differentials of pay for all
employees according to skill , experience, and hazards, and
to -review ' rates ' and differentials, from time to time.
However, no change in the-existing -general pay scale can
be, made-' during ^ the term ; of the agreement with the
exception ' of ;adjustments in, ° individual rates for the
purpose , of removing inequalities or "for other -proper
reasons .".> The agreement thus 'allows of changes 'in
individual pay scale but forbids - change in the,general pay
scale. The skill factor change for the skilled trades -in labor
grades 3A, 4B, "z and 5C altered' the pay scale for a whole
class.kof employees r and was .more general - than it - was
individuaL ,,T find it= was notakchange in individual rates as,
contemplated in article - 'IX of the collective-bargaining
agreement)
The' predecessor collective-bargaining ,, agreement be-
tween the Parties..includedta . negotiated, skill factor for
these labor grades. During the extended negotiations which
resulted in ,the -now , current-collective-bargaining -agree
ment, 'Collyer again and again sought to incorporate anew
and. enlarged skill factor, a,p'ropositionwhich the Union
categorically rejected r on' the basis , that ' it, would, not
negotiate for ;a special„groupbut only for the employeesas,
a whole..It wastttheUnion's position that there should be a
generals reevaluation of all jobs, not just,thosein the.skilled
trades.- Considered in the : light , of precontract negotiations
as well as - postcontract efforts of Stanzler in regard to a
skill factor, 'the conclusion . is inescapable] that the rates set
out in ,the contract for labor grades 3A, 4B, and 5C 'do not
include` &skill' factor.. Although ,,the collective-bargaining
agreement as finalized did,not include the skill factor, the
matter was ^ not completely ,,foreclosed by the Union When
management again , raised-,' the skill factor question in the
discussions ---during;. the 'autumn, , of 1969, the Union
indicated that it -would-agree to additional wage adjust-
ments' w.for allp employees if, ,such could', be arranged in
accordance sviith the job evaluation system .'Collyer agreed
to dothis . On November l2 itadvised the Union it would
review all-jobs and reevaluate them. Further, it proposed a,
study of the'wage"structure of the various labor grades for'
the purpose - of.-providing a=more. equitable wage structure
for-the next collective -bargaining agreement. These steps
would have satisfied the Union 's requirements.-However, -
Respondent did not,,stop there ; it stated in addition it
would . inaugurate a.20-cent-an-hour, special skill,factor for
the- skilled -trades - effective November, 17. This skill -factor,
therefore, was limited to-labor-grades 3A , 4B, and SC, was
to be in advance of, , a general job reevaluation rather- than
the-, result a°thereof; and was determined , unilaterally' by
management rather thar,as the product of agreement with
the Union :,' Thus management in making , the -skill factor
chan'ge> -altered the pay - scale of 'the skilled trades which
formed -part,-of the bargain it had struck with ,the Union `iii
the,' collective-bargaining-- agreement. Its economic prob-
lem's to the cdntraiy notwithstanding„ Collyer was obliga-
ted, torthat bargain-even`as the Union was entitled to what it
construed as the benefits, of that bargain. See Section 8(d)
of the Act ; The Standard Oil's Company, (Ohio), 1.74 NLRB-
No.-33.
In'later discussions after the skill factor was instituted-
the Union indicated willingness to-reopen the contract for,
renegotiation of all wage . scales. There:is no- evidence,
however, that management was willing to-do this during
the term of the present contract . Respondent, . having
instituted the skill factor without the agreethent of, the,
Union, did so unilaterally„ an action ` which , even if an
impasse existed -between it and-the Union on this; topic, it
was not entitled to- take because there 'was an outstanding
collective-bargaining agreement ', which ^ controlled the
subject. The, Standard, Oil Company (Ohio); supra. 1 find,
therefore that this`` unilateral change" was a 'refusal to
bargain in violation of 'Section 8(a)(5)and (1) of, the Act,
3. The worm gear
Collyer admittedly, acted unilaterally- when on.November
12,1969, it directed extruder operators and, helpers to assist
in -changing the worm gear. It defends that this change in
duties, was insignificant and, in any event was within the
legitimate .rights of management to=make. Considering,, that
duties of extruder- operators are not spelled out in, the,
collective-bargaining agreement;, and that, past:,, practice
supports and the agreement permits the exercise,-of some
managerial discretion, one might be inclined.to agree with
Respondent's position. However, an employee's duties are-
a bargainable matter. Factually the-worm,, gear question
here-is.part of the skill factor question,, This is so -because
the immediate past practice had been to'assign the work of
changing the vaorrn gear to two- -mechanics (skilled
craftsmen) who were not assisted by theextrudef operator
or his' helper. During, the worm gear change the operator
and helper performed other duties., Faced 'With" an-
increasing shortage of skilled' mechanics because of its low
wage scale, Respondent proposed, and eventually unilater^
ally- instituted, the skill factor wage raise, for` such
mechanics. A few days earlier, and almost coincidently, it
eozr menced assigning only one skilled*mechanic to'the job
of changing the worm gear and ` directed''the extruder
operator and helper to assist. Thus "the extruder-operators,
who would not receive the added` skill factor of the
mechanics, were required, to perform part of `the' 'duties
previously performed by mechanics. Collyer continues to
impose these added, duties, giving -no indication of
willingness to renegotiate- wage scales generally, although
the, Union.is willing to do so, and at the same time,_in the1 1, "1 1
face of union objection,,paying-an,-added skill, factor to its,
mechanics. The, worm- gear change, therefore; is an added
aspect of-the skill factor problem. Like the skill factor raise,
it,-is -another way in which Respondent, is, unilaterally
escaping the basic frame; of the wage bargain struck in the
collective=bargaining, agreement. .I 'find; therefore, that, in
the-'particular, circumstances,`herepresent, the unilateral
worm gear change, like the skill factor change, constituted
a, refusal to bargain by Respondent in violation of Section
8(a)(5), and (1) of the Act. - - .
COLLYER INSULATED WIRE 867
4. Additional defense
Respondent urges that the Union could have and should
have used, the grievance _ and, arbitration procedures
provided in the, collective-bargaining agreement to resolve
any objections it had to any of the changes made.
However, the existence of contractural rights and obliga-
tions to use grievance and arbitration procedures do not
divest^parties- of their rights and duties under the Act nor
oust the Board of jurisdiction to determine whether unfair
labor practices have occurred and to remedy them if they
have,, This is particularly so .where, as , here, the_ issues
involved are notprimarily ones of interpretation and where
no grievance and, arbitration proceeding has even been
started. See Section 10(a) of, the Act; Zenith Radio
Corporation, 177 NLRB No. 30; Thor Power Tool Company,
148 NLRB 1779, enfd. 351 F.2d 584 (C.A. 71'; C & S
Industries; Inc., 158'NLRB 454. Accordingly, Respondent's
defense in this regard is without` merit.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection ' with its operations de-
scribed in- section I,' above, have a close, intimate,' and
substantial'relation 'to'tiade, traffic, and'commerce among
the several States, and those found to be unfair' labor
practices tend to lead to labor disputes burdening-and
obstructing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer„ within the 'meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of,Section 2(6) of the Act.
2. - The Union is a ^ labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees of
Respondent employed at its Lincoln, Rhode Island plant,
excluding all office and clerical employees, timestudy
engineers,, chemists, engineers, draftsmen, and other
technicians not engaged in production activities, profes-
sional employees,- watchmen, guards, 'executives, superin-
tendents,`foremen, assistant'€oremen,-and other supervisors
as . defined in . Section 2(11) of the Act, constitute a unit
appropriate for the purposes ' of collective, bargaining
within the meaning zof Section-9(b) of _ the, , tAct.
4. The Union is the exclusive bargaining representative
of the employees in the aforesaid appropriate unit within
the meaning of Section 9(a) of the Act.
5. By the unilateral changes set forth in section III,
above, and found to beunfair labor practices, Respondent
has refused to bargain collectively with the Union as the
exclusive representative of the employees, in the -aforesaid
appropriate unit, has interfered witty restrained, and
coerced its employer in the exercise of rights guaranteed
them by Section 7 of-the Act, and-has thereby engaged in
unfair labor practices within the meaning of-Section 8(ax5)
and (1) of the Act.
6. Such unfair labor practices effect commerce within
the meaning of Section 2(6), A and (7) of the Act.
THE REMEDY
Having found that Respondent engaged ' in, unfair labor
practices in violation of Section 8(a)(5) and (1) of the Act,
it should - cease and desist therefrom, or from any like or
related conduct, and ; should take . affirmative ,' action
designed ,to effectuate the^pglicies of the,Act. Because of
the long-established bargaining • relationship between the
parties and because Respondent, ,has not questioned its
duty to recognize and bargain ,witl} the, Union,, an ;order
requiring Respondent to generally recognize and ,bargain
with- 'the Union is not warranted. The _ Standard Oil
Company (Ohio), supra:' However, Respondent should be
required to forbear from unilaterally, without agreement
with the Union, altering wage , scales set by)the=°collective-
bargaining-agreement ,for skilled trades or in conjunction
therewith assigning worm gear change duties to- extruder
operators and- helpers, and Should'be required to bargain
about- these, matters if the Union so requests, In order to
avoid Respondent having the benefit of its. unfair, labor
practices, I will require that it , reinstate„ the wage scales for
labor grades 3A, 4B, and 5_C as set out in the collective-
bargaining agreement, provided the' Union so requests in
writing. Manor `Research Inc., 165'NLRB _ 09 ' Montgomery
Ward & Co., 162 NLRB` 369. However, 'nothing 'Mi such
order is to be coast ved as requiring Respondent torecoup
from employees wages already paid them. ' - ' . e
,[Recommended ; •Ordern' omitted from publication.)