Combustion Engineering, Inc.

National Labor Relations Board - Board Decisions

Mar 15, 1972

195 N.L.R.B. 909 (N.L.R.B. 1972)

COMBUSTION ENGINEERING 909
Combustion Engineering , Inc. and Richard W. Lane.
Case 1-CA-7514
March 15, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On December 1, 1971, Trial Examiner Sidney Sher-
man issued the attached Decision in this proceeding.
Thereafter, the Intervenors' filed exceptions and a sup-
porting brief, and the General Counsel filed a brief in
support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor 'Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions, as consistent here-
with, for the reasons stated herein.
With respect to the award of the arbitrator, the ques-
tion of whether the existing contract was intended, or
can be construed, to cover those employees at East
Windsor who were hired after its effective date is a
question for the arbitrator, but his conclusion on that
issue does not govern or guide the Board in its disposi-
tion of the issue presented here. For, though the arbi-
trator answered the question in the affirmative, it is
nevertheless the obligation of the Board to determine
whether the employees at East Windsor constituted an
accretion to the existing unit.' On the facts before us,
we agree with the Trial Examiner that such a finding
is not warranted here. Accordingly, we hereby affirm
the Trial Examiner's Decision.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner' and hereby orders that the Re-
spondent, Combustion Engineering, Inc., Windsor,
Connecticut, its officers, agents, successors, and as-
signs, shall take the action set forth in the Trial Ex-
aminer's recommended Order.
' International Brotherhood of Boilermakers, Iron Shipbuilders, Black-
smiths, Forgers and Helpers, AFL-CIO, and Subordinate Lodge No. 558.
Woolwich, Inc., 185 NLRB No. 127.
The Board hereby corrects a typographical error in Section 1(a) of the
Trial Examiner's recommended Order by changing the incorrect reference
"Subordinate Lodge No. 588" to read Subordinate Lodge No. 558."
195 NLRB No.161
TRIAL EXAMINER'S DECISION
SIDNEY SHERMAN, Trial Examiner: The instant charge
was served on February 19, 1971, the complaint issued on
May 11, and the case was heard on September 9. The only
issue litigated was an alleged violation of Section 8(a)(1) and
(3) of the Act by the proposed extension of a collective-
bargaining contract between Respondent and Intervenors to
a new plant at East Windsor, Connecticut. After the hearing
briefs were filed by Respondent, Intervenors, and the General
Counsel.
Upon the entire record,' the following findings and conclu-
sions are adopted:
1. RESPONDENT'S OPERATIONS
IN COMMERCE
Combustion Engineering , Inc., herein called Respondent,
is a corporation under Delaware law, with a principal office
at Windsor , Connecticut . The only plants of Respondent in-
volved herein are located at Windsor and East Windsor. It
annually receives materials valued in excess of $50,000 at
these plants . Respondent is engaged in commerce under the
Act.
II. THE UNIONS INVOLVED
International Brotherhood of Boilermakers , Iron Ship-
builders, Blacksmiths , Forgers and Helpers , AFL-CIO, and
Subordinate Lodge No. 558, herein sometimes referred to as
Intervenors , are labor organizations under the Act.
III. THE MERITS
A. Sequence of Events
In September 1959, the Board certified Intervenors as the
representative of Respondent's production and maintenance
employees at Windsor, Connecticut. At that time Respond-
ent had only one plant in the Windsor area, which was
located in the town of Windsor. Respondent and Intervenors
thereafter executed a series of agreements, the latest in Sep-
tember 1968, for a term ending on June 30, 1971. The con-
tract contains a union-security clause making union member-
ship a condition of employment. Article XVI of that contract
provided for a grievance procedure culminating in arbitra-
tion, and it was stipulated therein that the award of the
arbitrator would be "final and binding" on both parties.
In August 1970, Respondent established a new plant at
East Windsor, about 8 miles from the Windsor plant, at
which it proceeded to manufacture a magnetic jack, which
had never been produced by it before. The only comparable
item at the Windsor plant was a rack and pinion jack. Both
of these devices are used to manipulate the control rods in a
nuclear reactor, but the magnetic jack operates on a different
principle.
The record shows that there are about 85 employed at East
Windsor, of which 64 are production and maintenance em-
ployees, as against 168 such employees at Windsor; that the
only product at East Windsor is the magnetic jack; that no
work is done thereon at Windsor, except for a testing opera-
tion performed by certain employees not within the bargain-
ing unit; that none of the disputed employees ever worked at
Windsor, but were all newly hired at East Windsor, and there
has been no interchange of production and maintenance em-
ployees between the two plants; that wage rates and fringe
' For a correction of the transcript and an evidentiary ruling , see the
order of November 19, 1971.
' There were about 50 such employees at East Windsor on February 10,
1971, when the alleged violation occurred.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
benefits at East Windsor differ materially from those at Wind-
sor; that only about 10 to 25 of the employees at Windsor are
engaged in producing the rack and pinion jack; that they use
some machines and' skills that have no counterpart at East
Windsor and vice versa,- that, while labor relations policies are
determined at Windsor and, Respondent's personnel depart-
ment is located there, the operations at East Windsor are
directed by a local manufacturing supervisor, who is assisted
by a general foreman and three foremen; that, although he
reports to the manufacturing manager at Windsor, the manu-
facturing supervisor at East Windsor has complete autonomy
with regard to hiring' and discharge, and may effect promo-
tions and wage increases, subject to approval by personnel at
Windsor; that the East Windsor plant has its own engineering
and production control personnel; and that it occupies about
20,000 square feet of floor space and is equipped with machin-
ery purchased at a cost of $500,000.
Pursuant to a grievance filed by Intervenors, an arbitration
hearing was held on December 11, 1970, to determine
whether the contract applied to the East Winsor plant and o'n
February 5, 1971, the arbitrator issued his decision, finding
that the contract did apply. On February 10, Respondent
posted a notice at East Windsor to the effect that as of Febru-
ary 5, 1971, the employees there were subject to the provi-
sions of Intervenors' contract. However, because of the pend-
ency, of the instant proceeding, Respondent has not as yet
implemented the provisions of that contract with respect to
the East Windsor employees.
On February 19, the instant charge was filed by an East
Windsor employee and it bears the supporting signatures of
47 other such employees. The complaint alleges that Re-
spondent violated Section 8(a)(1) and (3) of the Act by an-
nouncing that it would apply to its East Windsor employees
Intervenors' contract, including the union-security provisions
thereof, and by maintaining in effect such union-security
clause for such employees since February 5, 1$71.
B. Discussion
Respondent and Intervenors contend that the Board
should honor the arbitrator's decision, citing, inter alia, the
recent Collyer case.'
The basic guidelines for deferral by the Board to arbitra-
tion'awards were laid down in Spielberg,' where it was held
that such awards will be honored where the "proceedings
appear to have been fair and regular, all parties have agreed
to be bound, and the decision of the arbitration panel is'not
clearly repugnant to the purposes and policies of the Act."
In later cases, the Board, with court approval, amplified
Spielberg by spelling out a requirement that the issue before
the arbitrator be identical with that before the Board.' This
requirement has its most obvious application in cases of al-
leged discriminatory discharge, where the employer's defense
is that the discharge was for the employee's violation of a rule
imposed by a collective-bargaining contract. In such a case
the only issue for the arbitrator is whether the rule was vi-
olated, but the issue before the Board is entirely different-
namely, whether the rule violation was the true reason for the
' The Windsor personnel department participates in the hiring process
only by screening job applicants and notifying successful applicants of their
selection by the East Windsor manufacturing supervisor.
Collyer Insulated Wire, 192 NLRB No. 150.
Spielberg Manufacturing Co, 112 NLRB 1080, 1082.
6 Monsanto Chemical Company, 130 NLRB 1097; Ford Motor Co., 131
NLRB 1462, Star Expansion Industries Corp., 164 NLRB 563; Raytheon
Co, 140 NLRB 883; Klann Moving & Trucking Co v. N.LR.B., 411 F 2d
261 (C A. 6); Hawkins v. N.L.R.B., 358 F.2d 281 (C A. 7); Illinois Ruan
Transport Corp. v. N.L.R.B., 404 F.2d 274 (C.A. 8).
discharge or merely a pretext for getting rid of a union adher-
ent.
It is by now well settled that there is likewise such a duality
of issue where, as here, the matter in dispute is whether a
collective-bargaining contract should be extended to a new
operation, the issue before the arbitrator being whether the
parties intended their contract to apply-to such operation and
that before the Board being whether the new employees
might properly be treated as an accretion to the existing unit
under criteria developed by the Board. Thus, in Pullman
Industries, Inc., 159 NLRB 580, the union had been certified
for plant A and had negotiated a contract covering that plant,
and the issue before the Board was whether that contract
barred a petition by a rival union for an election among the
employer's employees at plant B, which had been established
after the execution of the contract. The matter had first been
submitted to an arbitrator, who ruled that the contract ex-
tended to plant B. The Board, however, reached a contrary
result, finding that plant B was not an accretion to plant A.
With regard to the contention that it was, nevertheless, bound
by the arbitrator's determination, the Board said:
The Employer contends in effect that,, even if the
Board would otherwise find no accretion, it should give
effect to the arbitrator's decision in this proceeding and
find a contract bar. The arbitrator here made it clear that
he was deciding only "whether the agreement between
the parties applies to the South Haven, Michigan, plant,
as well as the Pullman, Michigan, plant.", Even if we
were to give hospitable acceptance to this conclusion,
such acceptance would not dispose of the issue facing us
here as to whether the employees at South Haven are an
accretion to the Pullman contract unit so as to require
a conclusion that the current contract bars a petition for
an election among the South Haven employees. This is
so because, even where a contract expressly covers em-
ployees to be hired after the execution of the contract at
new facilities of the Employer, the Board will nonetheless
refuse to find the contract a bar to a petition seeking these
employees unless it finds that these employees are an
accretion to the contract unit. [Emphasis added.]
To the same effect are the holdings in Woolwich, Inc., 185
NLRB No. 127; Textron, Inc., 173 NLRB 1290; Warehouse
Markets, Inc., 174 NLRB No. 70. All these cases involved an
accretion issue and rejection by the Board of an arbitrator's
award.' See, also, Beacon Photo Service, Inc., 163 NLRB 706,
where the Board refused to await arbitration'on the issue of
accretion because it was not within the competence of an
arbitrator.
In none of these cases did the Board consider whether the
arbitrator's award met the tests of Spielberg, the Board's
approach being rather that the arbitration was entirely irrele-
vant to the Board proceeding, since the contracting parties'
intent, which was the only issue properly before the arbitrator
' The Intervenor cites Raley's Supermarkets, 143 NLRB 256, where the
Board professed to honor an arbitrator's finding that certain categories of
employees were part of a contractual unit The opinion in that case seems
to assume that the issue before the arbitrator was the same as that which was
before the Board. However, the Board there noted that the result reached
by the arbitrator coincided with that which it would have reached, itself,
upon a de novo consideration of the case. Whether the Board would have
"honored" the award had the arbitrator reached a different result is an open
question. At any rate, to the extent that Raley's may be deemed to be
inconsistent with the cases cited in the text, above, it would seem to have
been superseded by those cases. (The same is true of the decision in Good-
year Tire & Rubber Company, 147 NLRB 1233, which relied on Raley's.
That case is distinguishable, in any event, on the ground that it was treated
by the Board as involving not a problem of accretion but only the clarifica-
tion of a Board certification.)
COMBUSTION ENGINEERING 911
in interpreting the contract, had no bearing on the question
of accretion. In resolving that issue, the Board normally con-
siders only such factors as employee interchange, lines of
supervision, similarity of work tasks and skills, and physical
proximity. The mere fact that an employer is willing to per-
mit an incumbent union to represent the disputed employees
is not considered to warrant adding them to the established
unit. The reason for this is obvious. With regard to questions
of contract coverage, the controlling consideration is the in-
tent of the parties. With regard to the question of the scope
of an appropriate bargaining unit, a vital consideration is
freedom of choice in selecting a bargaining agent; for, under
Section 9(b) of the Act it is the Board's responsibility, in
fashioning bargaining units , to guard against any undue im-
pairment of freedom of choice.
Thus, all the arbitrator can decide is that the employer and
union have agreed that the union may bargain for a group of
employees, regardless of their wishes in the matter. It is for
the Board to decide whether such disenfranchisement is con-
sistent with the policies of the Act.
Of course, the ideal solution from the standpoint of free-
dom of choice would be one that permitted every new em-
ployee to vote on the question of union representation as soon
as he is hired. However, there are countervailing considera-
tions of stability that have led Congress to limit the holding
of elections to one in every 12-month period and that have led
the Board to treat a certification as binding for a period of at
least one year. Accordingly, it has been necessary for the
Board to determine under what circumstances it would be
proper to deem newly hired employees to be bound by the
results of a past election and under what circumstances they
should be regarded as not so bound. In resolving these ques-
tions, the Board has developed certain, objective criteria,
which relate basically to the extent of integration of the jobs,
supervision, and other conditions of employment of the new
employees with those of the old.
Respondent relies, inter alia, on the Board's recent deci-
sion in Collyer Insulated Wire, 192 NLRB No. 150. There,
the Board referred to arbitration under an established, con-
tractual procedure the question whether the respondent had
violated Section 8(a)(5) of the Act by unilateral changes in
certain pay rates and work assignments, the Board retaining
jurisdiction of the proceeding pending the outcome of the
arbitration. However, there, the Board relied on its prior
decision in Jos. Schlitz Brewing Company, 175 NLRB No. 23,
where it had deferred to arbitration in a similar situation, and
where it pointed out, inter alia, that it appeared that "the
arbitral interpretation of the contract will resolve both the
unfair labor practice issue and the contract interpretation
issue...... And, in stressing the applicability of Schlitz to the
situation in Collyer, the Board said:
Finally, here, as in Schlitz, the dispute is one eminently
well suited to resolution by arbitration. The contract and
its meaning in present circumstances lie at the center of
this dispute. In contrast, the Act and its policies become
involved only if it is determined that the agreement be-
tween the parties ... did not sanction Respondent's
right to make the disputed changes ....
In view of the stress thus placed in Collyer on the identity
of the issue before the Board and the arbitrator, that case
would seem to be a slender reed on which to rest any conten-
tion that the Board should honor an arbitration award in a
situation like that here involved, where the Board has repeat-
edly held that the issue before the arbitrator was not the same
as that before the Board. This is confirmed by the fact that
in a recent case, issued since Collyer, the Board held that an
arbitrator's finding that an employee was dischargeable under
the governing contract was not dispositive of the question
whether the discharge was for discriminatory reasons.'
The Intervenors contend that, in any event, the instant
arbitrator did pass on the same issue as the Board would have
had to resolve and that his decision should therefore be ac-
cepted by the Board. The arbitrator did in fact undertake to
deal with such questions as accretion and appropriate unit,
although recognizing that the issue before him was one of
contract interpretation . Thus, he stated:
. statutory standards and applicable Board law are
not necessarily determinative of the question here pre-
sented. We are simply called upon to interpret and apply
the terms of the existing collective bargaining agreement
Where, however, the language of the agreement and
the parties' past practice raise a substantial issue as to
intent, and particularly where the contract unit follows
a Board certification, it would appear proper to take into
consideration standards laid down by the Board in the
matter of determining appropriate units.
"Applying Board principles," the arbitrator then found
that, in view of the proximity of the two plants, the central-
ized control of manufacturing and labor relations, and the
similarity of duties, skills, and working conditions, a unit
embracing both plants would be more appropriate than sepa-
rate plant units. He next considered whether the language of
the contract was so clear as to preclude extending it to the
East Windsor plant, but found no such preclusion. Turning
to what he deemed to be a separate question from the matter
of appropriate unit, the arbitrator next considered whether
the new plant was a "normal accretion" to the old plant. On
this point, he stated:
There are additional considerations for viewing the East
Windsor operation as part of that covered by the Board
certification and the collective agreement . The under-
signed arbitrator is persuaded that the project at East
Windsor is a normal accretion to the prior principal
operation at Windsor and is not a wholly independent
operation .... Applying standards generally followed
by the Board ... both operations are fundamentally
similar, require substantially the same job classifications
and skills, entail use of the same kind of machines and
materials , lend themselves to an interchange of em-
ployees (although not in fact done here) and are subject
to the same overall administration and supervision
The arbitrator's conclusion was that the East Windsor em-
ployees were covered by the contract.
It is apparent from the foregoing that the arbitrator at-
tempted to deal with the issue of accretion and appropriate
unit as an aid to resolving the question of contract interpreta-
tion, his approach being that the question before him was
primarily whether the two-plant unit or the one-plant unit
was more appropriate, and that whichever unit was the more
appropriate would be presumed to be the one intended by the
contract, unless there was a clear indication in the contract
to the contrary. A secondary consideration, according to the
arbitrator, was his belief that the East Windsor plant would
be deemed by the Board to be an accretion to the Windsor
plant.
That the arbitrator should take this rather novel approach
is all the more puzzling in view of the fact that there is
nothing in the parties' contentions, as outlined in the arbi-
trator's report, to warrant his apparent assumption that, in
drafting their contract, they intended Board doctrines per-
taining to accretion or the appropriateness of a two-plant unit
' Kalamazoo Gazette. 193 NLRB No. 159.
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to determine the scope of the contractual unit. However, the
most serious objection to the arbitration award would seem
to be that, while professing to apply Board policy with regard
to the matter of accretion, the award relies on, factors to
which the Board normally gives little or no weight and makes
no reference to factors to which the Board normally assigns
controlling weight.
Thus, in finding an accretion, the arbitrator stressed, inter
alia, the fact that both operations "lend themselves to an
interchange of employees (although not in fact done here)."
This was, in effect, an attempt to gloss over the absence of
interchange on the ground that interchange was feasible. The
absence, or infrequency, of interchange of employees is prob-
ably the one factor most commonly relied upon by the Board
in finding no accretion,' and the Board has not deemed it
material that interchange was feasible.10 Moreover, the in-
stant award makes no reference to other factors that the
Board has generally held to outweigh those relied upon by the
arbitrator, such as the virtual absence of functional integra-
tion between the two plants, the separate supervision at East
Windsor by an individual who has complete autonomy with
respect to hiring and discharge and considerable discretion
with regard to raises and promotions, the dissimilarity in
wages and fringe benefits prevailing at the two plants and'the
difference between the products of both."
There is thus posed the following question:
Ina case where, as here, the issue of contract interpretation
before the arbitrator is different from that which the Board
has to decide, what weight should the Board give to the
arbitrator's action in erroneously assuming that he has to
decide the latter issue and in deciding it clearly contrary to
Board precedent?
Perhaps, the closest case on the facts to the case at bar is
Westinghouse Electric Corp., 162 NLRB 768. There, the arbi-
trator had to resolve an issue of unit placement, which arose
as a result of an apparent conflict between a contractual
provision and a Board certification. Purporting to apply
Board unit criteria, the arbitrator found that some of the
disputed employees were properly within the contract unit.
In considering what weight to give to this finding, the Board
said (at p. 771):
Here ... the ultimate issue of representation could not
be decided by the Arbitrator on the basis of his interpret-
ing the contract under which he was authorized to act,
but could only be resolved by utilization of Board crit-
eria for making unit determinations. In such cases the
arbitrator's award must clearly reflect the use of and be
consonant with Board standards.
Proceeding to a de novo review of all the evidence bearing
on the unit issue and citing relevant factors overlooked by the
arbitrator, the Board found that none of the disputed em-
ployees belonged in the unit covered by the contract. Thus,
under Westinghouse, findings by arbitrators purportedly
based on Board policies in representation cases, are subject to
de novo review by ' the Board, unless "clearly ... consonant
' E.g., Pullman Industries, Inc., 159 NLRB 580; Dura Corp, 153 NLRB
592, enfd. 375 F.2d 707, 711 (C.A 6), Beacon Photo Service, Inc., 163
NLRB 706, Warehouse Markets, Inc, 174 NLRB No. 70, Super Markets
General Corporation, 1,70 NLRB 446, Mel bet Jewelry Co, Inc-, 180 NLRB
No 24; Morgan Transfer & Storage Co., Inc, 131 NLRB 1434, Testron,
Inc., 173 NLRB 1290, Cyclops Corporation, 170 NLRB 312, Essex Wire
Corporation, 130 NLRB 450
10 Thus, in Essex Wire Corp, supra, in finding no accretion, the Board
noted that, although the jobs at the two operations involved were virtually
interchangeable, there was in fact no interchange. This was the reverse of
the instant arbitrator's approach that the interchangeability of jobs, and not
the actual situation, was controlling
11 See cases cited in fn 9, above.
with Board standards."12 Applying the test of Westinghouse
here, it is apparent that, even if it be assumed-that the instant
arbitrator was authorized to consider Board policies in re-
solving the contract issue, his interpretation of such policies
was not clearly consonant with Board precedent, and was, if
anything, clearly contrary to such precedent.
The result here reached is not inconsistent with the basic
rationale of the majority opinion in Collyer. In that opinion
it was emphasized that the central issue in the case before the
Board was one "clearly within the expertise" of an arbitrator
and constituted "the very stuff of labor contract arbitration,"
and that the competence of an arbitrator "to decide the issue
... can no longer be gainsaid." Here, by way of contrast, the
central issue-accretion-is clearly one with respect to which
the Board presumably has far more expertise than any arbi-
trator. Over the more than 35 years of its existence, the Board
has accumulated a vast and complex body of law on these, as
well as other, matters pertaining to the resolution of represen-
tation problems. It would be a rare arbitrator who would
have an intimate knowledge of even a small part of this field
of jurisprudence; for, clearly, there is no necessary correlation
between expertise in the area of contract interpretation and
proficiency in Board representation law. Accordingly, the
result here reached comports with the Board's policy, as
reflected in the long line of cases from Spielberg to Collyer,
to defer to arbitration (subject to certain safeguards) in that
area where the arbitrator has a special expertise comparable
to or greater than that of the Board.13
Accordingly, whether this case be viewed as one where the
arbitrator's decision was "repugnant to the policies of the
Act" within the rule of Spielberg or as one where arbitration
was inappropriate because of the subject matter was pecu-
liarly within the expertise of the Board, the arbitration award
ought not, in this Examiner's judgment, be given any effect
by the Board."
11 It would seem that to say, as the Board did in Westinghouse, that an
arbitrator's unit finding will be honored only if it clearly conforms to Board
standards necessarily implies that the Board will review the finding in every
case to determine whether there is such conformity, and only if it is clearly
correct under Board policies will it be affirmed It is not apparent how such
a rule differs in, practical effect from one which gives no weight at all to the
arbitration -
" In the case at bar the difficulty which an arbitrator would normally
encounter in attempting to resolve a question of Board law was enhanced
by the fact that the instant parties did not litigate that question before'the
arbitrator, and he therefore did not have the benefit of their research or
analysis with respect thereto
1' As a further reason for rejecting the award, the General Counsel cites
the fact that none of the employees at East Windsor received timely notice
of the arbitration hearing or appeared at that hearing However, the arbi-
trator's report indicates that Respondent vigorously opposed the Unions'
position before the arbitrator, and the Board has uniformly accepted such
vicarious representation as satisfying the procedural test of Spielberg. E g,
International Harvester Company, 138 NLRB 923.
A more serious procedural objection would seem to be the arbitrator's
injection into the case of the questions of appropriate unit and accretion,
which were not litigated by the parties, and as to which they had no real
opportunity to present their positions However, in view of the result
reached herein, there is no need to consider whether reliance by an arbitra-
tor on considerations not litigated before him constitutes, in itself, sufficient
ground for rejecting the result of the arbitration
Respondent contends that it is under a contractual obligation to comply
with the arbitrator's award and cites the fact that Intervenors have filed a
suit in a Federal district court under Section 301 of the Act to enforce that
award However, m that suit the court granted a motion by the Board to stay
the proceeding pending the disji1osition of the instant case, and in its opinion
the court stated.
all parties agree that if this court confirms the award and the Board
rejects it . the decision of the Board would conflict with and take
precedence over the decision of this court (78 LRRM 2512, 2513)
COMBUSTION ENGINEERING 913
It follows that Respondent violated Section 8(a)(1) and (3)
of the Act by announcing to the East Windsor employees that
its contract with Intervenors, including the union-security
provisions thereof, applied to them. It is no defense that the
contract has not as yet been enforced with respect to those
employees."
CONCLUSIONS OF LAW
1. The East Windsor employees are not an accretion to the
certified unit at Windsor.
2. By notifying the East Windsor employees that they were
subject to the provisions of its contract with Intervenors,
including the requirement therein of union membership as a
condition of employment, Respondent has violated Section
8(a)(1) and (3) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
It having been found that the current collective-bargaining
agreement may not lawfully be extended to cover the East
Windsor employees, it will be recommended that Respondent
be required to cease and desist from so extending that agree-
ment, or any provision therof, unless and until Intervenors
are certified by the Board as the representative of the East
Windsor employees.
Since it is evident that Respondent's action in notifying the
East Windsor employees of the extension of the contract to
them was prompted solely by a good-faith belief that it was
legally obligated to take such action as a result of the arbitra-
tion proceeding, only a limited cease-and-desist order will be
recommended.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
there is issued the following recommended:16
ORDER
Respondent Combustion Engineering , Inc., Windsor, Con-
necticut , its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Requiring as a condition of employment that its East
Windsor employees become members of International Broth-
erhood of Boilermakers , Iron Shipbuilders , Blacksmiths,
Forgers and Helpers, AFL-CIO, and its Subordinate Lodge
No. 588, pursuant to the provisions of its 1968-71 contract
or any renewal thereof, or extending any other provisions of
that contract to such employees , unless and until said Unions
have been certified by the Board as the representative of such
employees.
(b) In any like or related manner , interfering with , restrain-
ing, or coercing its employees in the exercise of their right to
self-organization, to form, join, or assist a labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or pro-
tection, except to the extent permitted by the proviso in Sec-
tion 8(a)(3) of the Act.
2. Take the following affirmative action, which is deemed
necessary to effectuate the policies of the Act:
(a) Post at its plant in East Windsor, Connecticut, copies
of the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for Re-
gion 1, shall, after being duly signed by its representative, be
posted by it immediately upon receipt thereof, and main-
tained by it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by it to insure that such notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director for Region 1, in writing,
within 20 days from the date of receipt of this Order, what
steps it has taken to comply herewith."
" In the event that the Board's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
1° In the event that his recommended Order is adopted by the Board,
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 1, in writing , within 20 days from
the date of this Order, what steps Respondent has taken to comply here-
with."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT apply to our East Windsor employees
our 1968-71 contract (or any renewal thereof) with In-
ternational Brotherhood of Boilermakers, Iron Ship-
builders, Blacksmiths, Forgers and Helpers, AFL-CIO,
and its Subordinate Lodge No. 558, unless and until that
bargaining representative is certified by the Board as the
bargaining agent of the East Windsor employees.
WE WILL NOT in any like or related manner interfere
with the rights of our employees guaranteed by Section
7 of the Act.
COMBUSTION
ENGINEERING, INC.
(Employer)
Dated By
The foregoing seems to be a correct statement of the law . See Carey v.
Westinghouse Electric Corp., 375 U.S. 261, 272 ( 1964).
" Crown Discount Department Stores, 172 NLRB No. 89; Pantlind Ho-
tel Company, 175 NLRB 815.
11 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , and recommended Order herein shall, as provided in
Section 102 . 48 of the Rules and Regulations , be adopted by the Board and
become its findings , conclusions, and Order , and all objections thereto shall
be deemed waived for all purposes.
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material. Any questions concerning this
notice or compliance with its provisions may be directed to
the Board's Office, 7th Floor, Bulfinch Building, 15 New
Chardon Street, Boston, Massachusetts 02114 Telephone
617-223-3300.