Litton Systems, Inc.

National Labor Relations Board - Board Decisions

May 15, 1987

283 N.L.R.B. 973 (N.L.R.B. 1987)

LITTON SYSTEMS 973
Litton Microwave Cooking Products Division , Litton
Systems, Inc. and United Electrical, Radio and
Machine Workers of America, Local 1139 and
United Electrical, Radio and Machine Workers
of America (UE). Cases 18-CA-7323, 18-CA-
7572, and 18-CA-7689
15 May 1987
DECISION AND ORDER
BY CHAIRMAN DOTsoN' AND MEMBERS
BABSON AND STEPHENS
On 9 December 1983 Administrative Law Judge
Bruce C. Nasdor issued the attached decision. The
General Counsel and the Charging Party filed ex-
ceptions and supporting briefs, and the Respondent
filed answering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a 'three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,, fiindings,1 and
conclusions2 only to the extent consistent with this
Decision and Order.
The judge found that the Respondent had the
right to relocate work, actually bargained in good
faith over the relocation decisions, and had the dis-
cretion to discharge employees not in good stand-
ing with the Union. We disagree.
The Work Relocation
The, judge found that the, parties' collective-bar-
gaining agreement, effective from 1 October 1979
to 31 October 1982, included a broad management-
rights clause3 that permitted the Respondent's uni-
i The Respondent has excepted to some of the judge's credibility find-
ings . The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the! record and find no basis for reversing
the findings
2 Because we cannot identify a specific contract term that the Re-
spondent's relocation decisions modified, we conclude that the Respond-
ent did not violate Sec. 8(d). See Milwaukee Spring Division, 268 NLRB
601, 602 (1984), affd. sub nom 'Auto Workers v. NLRB, 765 F.2d 175
(D.C. Cit. 1985).
The full text of the clause' is As follows:
Management Rights
3A. All of the customary rights of management are reserved to the
Company except as they are modified by the terms of this Agree-
ment These rights include, but,are not limited to the right to direct
the working force, to hire , to discipline, to discharge for cause, to
schedule work , to establish reasonable rules , to classify , to assign, to
promote, to transfer , and to determine size of work force, layoffs,
product and production methods.
lateral relocation of its international and commer-
cial lines from Plymouth, Minnesota, to Sioux
Falls, South Dakota. He found that pursuant to this
clause the Respondent had previously, moved its
countertop oven production from Minneapolis to
Sioux Falls. According to the judge, the Union's
failure to file Board or civil charges, or to request
bargaining over the countertop relocation decision,
indicated its belief that the Respondent, had the
right to transfer work. He found "further support
for this position in Union Financial Secretary
Rocco DeMaio's statement during 1982 contract
negotiations that the Respondent did not need a
new management-rights clause because, under the
current contract, the Respondent "had the right to
do anything it wanted."
The clause does not reserve to the Respondent
the right unilaterally to relocate work.4 Indeed, 13
distinct issues are reserved to the Respondent's sole
discretion, but work relocation is not among them.
"While the Board acknowledges that a labor orga-
nization may waive the statutory rights granted to
it and to the employees it represents, we will not
lightly infer such a waiver, which must be in `clear
and unmistakable' language ."5 Work relocation is
not clearly and unmistakably included' in the man-
agement-rights clause.
Nor does the Union's failure to challenge the Re-
spondent's earlier conduct concerning the counter-
top work prove the Union's acquiescence to the re-
locations we are considering. -From 1977 A until 1981,
the bargaining unit experienced several layoffs. In
response to DeMaio's inquiries regarding the rea-
sons for the series of layoffs, however,, the Re-
spondent's' representative consistently assured
DeMaio that the layoffs were due to lack of work.
In contrast, when the Respondent sought to relo-
cate the international and commercial lines from
Plymouth to Sioux Falls, it formally notified the
Union in writing, as well as orally, of its plans to
transfer ' the production operations to the Sioux
Falls facility within a particular time frame. Iinme-
diately on receipt of the notification, DeMaio re-
quested bargaining over the decisions and effects.
Contrary to our dissenting colleague, we ' conclude
that the events surrounding the earlier layoffs do
not indicate union acquiescence, forever waiving
its bargaining rights. 6
4 The contract does not contain a zipper clause.
5 Universal Security Instruments, 250 NLRB 661, 662 (1980) (quoting
Allied Mills, 218 NLRB 281, 286 (1975)), enfd in relevant part 649 F.2d
247, 256 (4th Cir 1981) See also Metropolitan Edison Co. v NLRB, 460
U.S 693, 708 (1983)
6 See, eg,, Murphy Diesel Co, 184 NLRB 757, 763 (1970), erifd 454
F 2d 303 '(7th Cir. 1971); NLRB v Miller Brewing Co, 408 F.2d 12, 15
(9th Cir. 1969)
Continued
283 NLRB No. 144
974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DeMaio's statement during the 1982 negotiations
does not support the judge's conclusion. The state-
ment, made in the context of the already completed
countertop work relocation, did not refer to possi-
ble future relocations. It can hardly constitute a
conscious; unequivocal waiver of the Union's right
to bargain over future relocations.7 Moreover, if,
as the judge found, the earlier contract clearly re-
served this right to the Respondent, the Respond-
ent would not have needed to propose a more de-
tailed-clause in 1982.
In sum, there is nothing in the management-
rights clause that affirmatively authorizes the Re-
spondent to transfer bargaining unit work outside
the unit nor is there sufficient evidence in the par-
ties ' bargaining history that would justify such an
interpretation.
Having determined that the Union did not waive
the right to bargain about relocation decisions, we
must decide whether the Respondent's decisions
constitute mandatory bargaining subjects. We find
that the Respondent was obligated to,bargain about
the decisions. In pre-relocation conversations with
DeMaio, the Respondent's vice president of human
resources, Phillips and its vice president of manu-
facturing Dowling repeatedly emphasized that the
most significant factor in the relocation decision
was the wage differential between the Sioux Falls
and Plymouth facilities.
No party seriously, disputes that labor costs were
the most important consideration in the Company's
decisions. Consequently, we find, that under Otis
Elevator Co., 269 NLRB ; 891 (1984), -the Respond-
ent's decisions to relocate the international and
commercial lines turned on labor costs and there-
fore,were mandatory bargaining subjects." By fail-
ing to bargain in good faith with the Union over
those relocations, the Respondent violated Section
8(a)(5) and (1).9
The burden of proving waiver is on the party alleging it, and the Re-
spondent has not met that burden. The record in this case does not con-
tain enough evidence about the Respondent's gradual elimination of
countertop work from the Minneapolis area to prove that the series of
layoffs due to lack of countertop work was so similar to the Respondent's
relocations of the international and commercial lines that the Union's fail-
ure to challenge the countertop layoffs would constitute a waiver of the
Union's right to challenge future work relocations.
7 Although the Chairman correctly states that, in the context of labor
arbitration, a party's failure to object to another party's contract interpre-
tation may prevent future challenges to that interpretation, he mistakenly
applies that arbitration waiver standard to the statutory waiver at issue in
this case. The waiver of a statutorily protected right must be clear and
unmistakable. Metropolitan Edison Co v NLRB, supra
s We find that, under any of the views expressed in Otis Elevator,
supra, the Respondent was obligated to bargain with the Union over its
decisions to relocate unit work
' Contrary to the judge's findings, the Respondent never bargained
about the decisions with the Union. The "various meetings" to which the
judge alludes did not satisfy the Respondent's bargaining obligation be-
cause those meetings concerned primarily the information the Union re-
quested, which the Respondent refused to provide.
As the Respondent's relocation decisions were
mandatory bargaining subjects, it follows that the
Respondent was obligated to provide information
the Union requested, which was relevant to the re-
locations and necessary for and relevant to the
Union's role as collective-bargaining representa-
tive.10 The judge found that the Union's informa-
tion requests were "vague generalizations" seeking
nonexistent or irrelevant material and, further, that
the Respondent was unaware of or did not rely on
any information not provided to the Union. The
record convincingly demonstrates, however, that
the Respondent failed to provide relevant, available
information.
The Union's frequent requests for studies were
not so vague that the Respondent could escape its
obligation to provide relevant, available ' informa-
tion which would have allowed-the Union to un-
derstand and discuss intelligently the relocation
issues . In fact, the record indicates that the Union's
requests were highly specific. Thus, in its 5 No-
vember 1981 letter to the Respondent, the Union
requested, inter alia, the following information
about the proposed international line relocation-
1. On June 11, 1981, Tom .Phillips, in a
phone conversation, stated to me, Rocky
DeMaio, that Litton was losing three million
dollars a year on the Range operation at the
Minneapolis plant. He also said Litton was
studying the feasibility of the continuous oper-
ation of the line at the Minneapolis plant and
the possible relocation of that operation.
Based on this conversation, the U.E. re-
quests that Litton supply the Union with the
Financial Data ; which ' documents that the
-Range line was operating at a three million
dollar a year loss.
2. In Tom Phillip's [sic] letter of October 30,
1981, Litton indicated that it has completed
one phase of an analysis of production require-
ments and based on that analysis concluded
that it is more economical to manufacture cer-
tain models in the Sioux Falls plant.
From this letter it appears that Litton is
now engaged in a wide ranging analysis of
cost comparison[s] which go 'beyond the oper-
ations of the Range line. The cost comparisons
are between the Sioux Falls and Minneapolis
plants. Based on this fact, the Union requests
Litton to provide the Union with a copy of
the analysis referred to, in Tom Phillip's [sic]
letter of October 30, 1981. This information is
necessary to enable the Union to intelligently
10 See Whitehead Bros. Co., 263 NLRB 895, 900 (1982); see. also
Safeway Stores, 252 NLRB 682, 685-686 (1980).
LITTON SYSTEMS 975
bargain over the impact and the Company de-
cision to transfer the work to Sioux' Falls.
3. The Union also requests that Litton pro-
vide it with a copy of any cost analysis consid-
ered in making the, decision to transfer work
from Minneapolis to Sioux Falls. The Union
'also requests all 'other analyses, surveys, or
studies referred 'to in Tom Phillip's [sic] Octo-
ber 30, 1981 letter which deals with the relo-
cation or transfers of other work now being
performed at the Minneapolis plant.
The Union letter also requested details concerning
how, and why the Respondent made its -decision,
the decision's effects on employees, what would be
necessary to keep the work in- Minneapolis, and the
Respondent's financial condition, including market
share and profit-and-loss information.'
Regarding' the commercial line, the Union'reiter-
ated the above request and asked for "a -complete
breakdown on variable overhead, complete ' break-
down on labor, copies of all studies made, [and]
copies of all, analysis made."
Before relocating the two lines, the Respondent
provided the Union only with comparative wage
data, general statements that relocating was "neces-
sary due to "hourly wage Fates, commonality of
products and production methods, and . . . dupli-
cation of line support personnel, etc.," 'and variable
overhead information and a cost-per-unit projection
based entirely on wages and hours. At various
times, the Respondent claimed that the rest of the
requested information was either nonexistent, privi-
leged, or irrelevant. Although the Union repeated
and clarified, its requests on several occasions, indi-
cating that it .could not_ offer, concessions without
the information, the Respondent never provided it.
The Union's need for information is demonstrat-
ed merely by showing _ the , "probability that,the de-
sired information was relevant, and that it 'would
be of use to the union in carrying out its- statutory
duties and responsibilities."11 The Union's requests
for 'studies and analyses were not fishing expedi-
tions. Rather, the Union sought additional relevant
information with which it could determine the
meaning of the -information already provided and
develop reasonable bargaining- proposals.
Although the Respondent at times denied the in-
formation existed, we find 'it difficult to believe that
such a large and complex' 'corporation ' would
decide on and implement a'major plant relocation
without considerable studying ,and analysis.12 Fur-
NLRB v Acme Industrial Co, 385 U.S. 432, 437 (1967).
1 'See Safeway Stores, supra at 686
thermore, the Respondent's testimony, calls into
doubt the asserted nonexistence of the information.
The 5 November 1981 information request referred
to -specific studies and, analyses .the Respondent
mentioned to DeMaio. On 19 March 1982 in a dis-
cussion with union officials, including DeMaio, the
Respondent's vice president Phillips said that the
requested information must have - been gathered
somewhere and considered, and that he would try
to get it.
Furnishing information is fundamental to the
duty to bargain in good faith. By failing to furnish
the requested information, the Respondent refused
to bargain in good faith and thus violated Section
8(a)(5) and (1) of-the, Act.
The Refusal to Discharge Pursuant to the
Union-Security Clause
We also disagree with the judge's dismissal 'of
the complaint allegation that the Respondent failed
to honor the union-security clause. Al,though° the
judge correctly stated the' Board's deferral
policy," he misunderstood the substance of the
charge- concerning the Company's failure to en-
force the union-security clause.14 The arbi'trator's
award, issued 6 December 1980, sustained the
Union's,grievance over the Company's memoran-
dum advising employees that it would not dis-
charge them for failing to pay union dues.' The ar-
bitrator essentially found that the word "may,"' as
used in, the union-security clause, requires the
Company ` to discharge employees failing to pay
dues.
Rather than seeking enforcement of that award,
the General Counsel and the Union are asking ' us
to consider an unfair labor practice charge based
on events that occurred after the arbitrator's award
issued. The Union charged that the Respondent
13 The judge, citing Malrite of Wisconsin, 198 NLRB 241, 241-242
(1972); enfd. in relevant part sub nom Electrical Workers IBEW Local 715
v. NLRB, 494 F 2d 1136 (D.C. Cir. 1974), also stated that parties seeking
to enforce an arbitration award are best served in a judicial proceeding.
14 The union-security provision states
2A All employees shall, as a continuing condition of employment
with the Company, become members in good' standing of the Union
on or before the forty-fifth (45th) calendar day following the begin-bef r
of their employment, or on or' before forty-five (45) callendar
days after the effective date of this Agreement, whichever is later,
and shall maintain such membership in good standing in Union
during the life of this Agreement.
2B When the Union notifies the Company that an, employee cov-
ered by this agreement has failed to pay the monthly Union dues
that are uniformly levied against all members and by reason thereof
is no longer in good standing in the Union, the Company may dis-
charge such employee. The Company need not reinstate such em-
ployee if he subsequently pays his dues and regains good standing in
the Union, after being discharged. The Union will save `the Company
harmless from any loss, cost, or damage resulting from the discharge
of any employee under the terms of this SECTION. In no case shall
the Company be required to discharge an employee where such dis-
charge would be in violation of State or Federal Law.
976 ' DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
violated Section 8(a)(5) and (1) by failing in June
1981 to discharge certain delinquent employees
pursuant to the contract's union-security ' clause.
Under similar circumstances involving `events
which occurred after the arbitration hearing," 1 s
the court in Malrite held that "deferral is not ap-
propriate with respect to an issue not considered
by the arbitration panel." 16 Because the events un-
derlying the instant charge occurred after the arbi-
tration hearing, indeed after the arbitrator's award
issued, the arbitrator could not have considered
them in making his award. Accordingly, we find
deferral inappropriate. 17
In so finding, we rely on the evidence that the
arbitrator had considered only whether the Compa-
ny's interpretation of its obligations under the con-
tract's union-security provision, as published in a
memo, was correct. Following the Union's request
that certain named employees be discharged for
failure to comply with the terms of the union-secu-
rity provision, the Company expressly rescinded
the memo that the arbitrator had ruled was an in-
correct interpretation of the contract. The Compa-
ny nevertheless continued to refuse to honor the
Union's ,request to comply with the terms of the
union-security provision, without supplying any
other reasons for doing so. Whatever new, unex-
pressed reasons -it had for failing to comply with
the provision could not have been considered in
the arbitration proceeding.
Although deferral is inappropriate, the arbitra-
tor's special expertise in interpreting the contract is
useful to our resolution of the unfair labor practice
issue . As stated above, the arbitrator determined
that the parties' collective-bargaining agreement re-
quires the Respondent to discharge employees who
have not paid their union dues. We find the arbitra-
tor's decision reasonable because any other inter-
pretation of the language would conflict with the
employees' contractual, membership requirement
and render the union-security provision meaning-
15 Electrical Workers IBEW Local 715 (Malrite) v. NLRB, supra, 494
F 2d at 1 .139 (emphasis in original)
's Ibid,
On remand from the court to consider the postarbitration hearing
charges, the Board found the employer violated Sec 8(a)(5) and (1) by
engaging in individual bargaining '. Malrite of Wisconsin, 213 NLRB 830
(1974).
17 Regarding the Chairman's position that the Board is compelled to
defer to the prior arbitration award here, we acknowledge that there are
strong considerations in favor of following prior awards as precedent
when, as here , a new ' incident gives rise to the same issue covered by a
prior award , and in fact we have 'given substantial weight, below, to the
arbitrator's interpretation of the union-security clause. Since, however, it
is possible for there to be inconsistent arbitration awards interpreting the
same contractual provision , it cannot be that the Board must reflexively
defer to an arbitrator's contractual interpretation in a case like this in-
volving subsequent events For a discussion of the use by arbitrators of
prior awards 'as precedent, see Elkouri & Elkoun,' How Arbitration Works,
365-388 (3d ed 1973) CE Teamsters (Anheuser-Busch), 277 NLRB 1097
(1985). -
less. The word "may" simply- allows the Company
not to discharge an employee- if that discharge
would violate the law.
After' the Union presented a list of delinquent
employees and requested their discharge pursuant
to - the union-security clause, the Respondent re-
fused to do so and, thereby, refused to. bargain in
violation of Section 8(a)(5) and (1) of the Act.18
AMENDED CONCLUSIONS OF LAw
1. Substitute the following for Conclusion of
Law 3.
"1 By failing and refusing to -bargain with the
Union in good faith over the decision to relocate
the international and commercial lines work from
Plymouth, Minnesota, to Sioux Falls, South
Dakota, the Respondent violated Section 8(a)(5)
and (1) of the Act."
2. Substitute the following for Conclusions of
Law 6, 7, and 8. '
"6. By failing and refusing to provide the Union
with requested available information necessary for
and relevant to its function as exclusive collective-
bargaining representative, the Respondent violated
Section 8(a)(5) and (1) of the Act.
"7. By failing and refusing to honor the union-
security clause, the Respondent violated Section
8(a)(5) and (1),of the Act.
"8. The above-described violations of the Act
constitute unfair labor practices affecting co- in
merce within the meaning of Section '2(6) and (7)
of the Act."
THE REMEDY
Having found that the Respondent violated Sec-
tion 8(a)(5) and (1)' of the Act, we shall order that
it cease and -desist therefrom, take certain affirma-
tive action designed to effectuate the policies of the
Act, and post an appropriate notice., We shall order
the Respondent to bargain with the Union concern-
ing its decision to relocate the international and
commercial lines from Plymouth to Sioux Falls,
furnish the Union with the requested information,
and honor the union-security provision =of its 1979-
1982 collective-bargaining agreement with the
Union.,
We shall also order the Respondent to restore
the status quo ante by transferring back to Plym-
outh the work of the international, and commercial
is See Spear Meat Co.? 256 NLRB 117, 119 (1981)
Having refused even 'to respond to the Union's request that it honor
the contractual union-security clause, the Respondent cannot now claim
that the Union's notice to employees was defective in defense of its own
unlawful conduct See Independent Stave Co., 248 NLRB 219, 220 (1980);
California Blowpipe & Steel Co., 218 NLRB 736, 751 (1975). Consequent-
ly, we need not pass on the judge's discussion of whether the -Union ful-
filled its fiduciary obligations
LITTON SYSTEMS
lines that was relocated to Sioux Falls and by of-
fering the discharged, laid-off, or suspended bar-
gaining unit employees immediate and full rein-
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions
with backpay dating from the time of their dis-
charge, layoff, or suspension computed in the
manner set forth in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest thereon computed as set
forth in Florida Steel Corp., 231 NLRB 651 (1977).
ORDER
The National Labor Relations Board orders that
the Respondent, Litton Microwave Cooking Prod-
ucts Division, Litton Systems, Inc., Plymouth,
Minnesota, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing or refusing to bargain collectively in
good faith with United Electrical, Radio and Ma-
chine Workers of America (UE), and its Local
1139, with respect to the decisions to relocate the
international and commercial lines work from its
Plymouth, Minnesota facility to Sioux Falls, South
Dakota.
(b) Failing or refusing to furnish the Union with
available information necessary for and relevant to
its function as bargaining representative.
(c) Failing or refusing to bargain with the Union
by failing and refusing to comply with the union-
security provision of its 1979-1982 collective-bar-
gaining agreement with the Union.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Bargain collectively in good faith with the
Union concerning any decision to relocate the
international and commercial lines from Plymouth
to Sioux Falls.
(b) Promptly furnish the Union with the studies,
analyses, and other information requested which
will enable the Union to engage in intelligent bar-
gaining.
(c) Transfer back to the Plymouth plant the
international and commercial lines work previously
performed at that facility, by bargaining unit em-
ployees represented by the Union.
(d) Offer to -those employees discharged, laid off,
or suspended as a result of the work relocation
from Plymouth to Sioux Falls immediate and full
reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any
977
other rights or privileges previously enjoyed, and
make those employees whole by providing them
with backpay dating from the time of their dis-
charge, layoff, or suspension, in the manner set
forth above in the remedy section of this decision.
(e) Honor the union-security clause in the 1979-
1982 collective-bargaining agreement.
(f) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due -under the terms of this
Order.'
(g) Post at its Plymouth, Minnesota facility
copies of the attached notice 'marked "Appen-
dix." 19 Copies of the notice, on forms provided by
the Regional Director for Region 18, after being
signed by the Respondent's authorized, representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(h) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
CHAIRMAN DOTSON, dissenting in part and concur-
ring in part.
I must disagree with my colleagues' reversal of
the judge's finding' that the broad management-
rights clause in the parties' collective-bargaining
agreement, along with the past practice of the
Union in' dealing with work relocation and the
union business representative's comments during
negotiations, permitted the Respondent's unilateral
relocation of its international and commercial lines
from Minnesota to South Dakota. Contrary to the
majority's assertion, the Union's failure to chal-
lenge the, relocation of the countertop stove work
was not a "single incident," but rather represented
a significant pattern- established from 1977 through
1981, and included at least three separate layoffs of
employees, from the Minnesota plant due, to the
transfer of work. As the judge noted, although,the
Union was aware of the situation, it failed to file
charges against the Respondent or to even request
bargaining over the gradual transfer of all the
19 It this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
countertop work to the South Dakota plant . In the
labor arbitration area, which deals almost exclu-
sively with contract interpretation , when one party
repeatedly fails to object to the other party 's inter-
pretation of a contract clause, such lack of protest
has -been , held too represent acceptance of the inter-
pretation and to prevent a later challenge to the
course of action undertaken . ' In the circumstances
here, I think the Union 's prior silence is no less sig-
nificant , and its "acceptance" of the Employer's in-
terpretation no less persuasive.
In addition to the Union 's lack of action con-
cerning the - transfer of the countertop work, the
comments made by business representative DeMaio
during the 1982 contract negotiations between the
Respondent ,and the Union are significant. During
the, negotiations , the Respondent proposed a man-
agement-rights clause which specifically gave it the
right to unilaterally transfer work. DeMaio reject-
ed. the proposed clause, stating that it "covers what
they , [the Respondent] do now, they don't need
anything more." 'The Respondent evidently with-
drew its proposal at that time . In the context of the
above-mentioned -past practice of the Union and
the broadly worded management -rights clause in
the contract, DeMaio's admission as to the breadth
of the existing management -rights clause ' supports
the judge's conclusion.
The majority asserts that DeMaio's statement did
not refer to possible future relocations , but rather
referred to the already completed countertop work
relocation . Such an argument is puzzling , since in
the normal course of contract negotiations, what
has happened in the past is generally an' indication
of how the parties will interpret a contract clause
in the future . In addition , at the time of the negoti-
ations, the Respondent had already decided to'relo-
cate the international and commercial lines and had
made clear that . although it , was willing to bargain
over the effects of the moves , it felt it had no obli-
gation to bargain about the moves themselves. If
DeMaio's comment had referred only to past inci-
dents, as argued by the majority, one would think
it applied to the Respondent's decisions ' concerning
the international and domestic lines as well as the'
countertop work.
Finally, the majority maintains that if the existing
management-rights clause had clearly reserved the
right of relocation to the Respondent , there would
not have been a need for the Respondent ' to` pro-
pose a more detailed 'clause . In view of the two
unfair labor practice charges filed by the Union
over the international and domestic lines reloca-
tions however, it is understandable that the Re-
spondent would wish to more clearly detail the
exact nature of, its rights. In fact, one can forcefully
argue that the Respondent's withdrawal , of its pro-
posal after hearing DeMaio 's remark indicates that
the Respondent believed that the Union was con-
ceding that relocation was already covered within
the existing clause . Accordingly, in light of these
factors, I would adopt the judge 's dismissal of this
allegation in the complaint.
I agree with my colleague 's - adoption of the
judge's dismissal , for the reasons set forth in his de-
cision, of the allegations concerning the assignment
of overtime and the processing of grievances. I also
agree with my colleagues' conclusion, contrary to
the judge, that , the, Respondent violated , Section
8(a)(5) and (1) of the Act by failing to honor the
union-security clause, but in doing so, would find
that the Board should defer to the arbitrator's in-
terpretation of that clause.
The majority states that deferral to the' arbitra-
tor's decision is inappropriate here because rather
than seeking enforcement of the arbitration award,
the Union is asking us to consider an unfair labor
practice charge based on events which occurred
after the arbitrator 's decision had issued. Relying
on the D.C. Circuit's opinion in Malrite,2 they note
that "deferral is not appropriate with respect to an
issue not considered by the arbitration panel."
Rather than deferring, the majority states that the
arbitrator's special expertise in contract interpreta-
tion is useful , that the ' arbitrator 's interpretation of
the clause is reasonable, and that based on this, in-
terpretation the Respondent has violated Section
8(a)(5) and (1) by refusing to comply with the
Union's request that certain delinquent employees
be discharged . In my view , the majority is misread-
ing'Malrite.
Malrite involved two issues , one concerning the
interpretation of a contract provision as to whether
more than one employee could work certain shifts
as "combo operators" and the other concerning an
allegation that the employer unlawfully ' engaged in
individual bargaining with certain employees- in
order to convince them to work as combo opera-
tors. The employer sought and received from two
of its employees an agreement to work in this ca-
pacity . The union protested , and the matter was
submitted to arbitration : The arbitration panel de-
termined that the ' employer violated the"tontract
by assigning employees to work ' as combo opera-
tors on the shifts at issue . After the ' arbitration
hearing closed, but prior to the issuance of the ar-
bitration award, three more employees were as-
' See Elkouri & Elkoun, How Arbitration Works, 406-407 (3d ed, 1978),
and cases cited therein
2 Electrical Workers IBEW Local 715 (Malrite) v. NLRB, 494 F.2d 1136
(D.C Cir. 1974).
LITTON SYSTEMS 979
signed combo operator duties. When the arbitration
decision issued, the employer refused to comply
with the award. Rather than seek judicial enforce-
ment of the award, the union filed an unfair labor
practice charge with the Board, alleging a violation
of Section 8(a)(5) through the employer's unilateral
changes in terms and conditions of employment.
The Board, in Malrite of Wisconsin, 198 NLRB
241 (1972) (Malrite 1), dismissed the complaint in
its entirety, stating that it was deferring to the arbi-
tration panel's decision in the case. On review, the
D.C. Court of Appeals found that deferral was ap-
propriate only with respect to the contractual issue
concerning; the assignment of combo operators to
the shifts at issue. With respect to the unfair labor
practice charge over the individual bargaining, the
court found that deferral was inappropriate, since
all three of the individual bargaining charges relat-
ed to events which occurred after the arbitration
hearing,3 and therefore could not have been con-
sidered by the arbitration panel. Thus, the court re-
manded this aspect of the case to the Board for a
determination on the merits.
In Malrite of Wisconsin, 213 NLRB 830 (1974)'
(Malrite II), the Board found that the employer
had violated Section 8(a)(5) by engaging in individ-
ual, bargaining with the three employees in,ques-
tion. The Board also expressly noted that it made
no finding as to whether the employer violated the
Act by changing from single employees to combo
operators on the shifts at issue , since that aspect of
the case had been deferred to the arbitral' award.
The present case also involves two issues: the
proper interpretation of the union-security clause in
the contract and the application of that clause to
certain employees as requested by the Union. The
first of these issues was considered and resolved by
the arbitrator, who found that the clause required,
rather than permitted, the Employer to discharge
employees who did not comply with the union-se-
curity provisions. The second issue, which involves
the Employer's refusal to comply with the' clause,
was not presented to the arbitrator because at that
time the Union had not requested that any employ-
ees be discharged, Relying on Malrite, the majority
finds deferral to the arbitrator's decision inappro-
priate because the events underlying the instant
charge occurred after the arbitration hearing and
thus could not have been considered by the arbitra-
tor. While I agree that deferral is not appropriate
with respect to the discharge of the specific em
a The events concerning the two employees who had been approached
by the employer prior to the arbitration hearing were deemed untimely in
the unfair labor practice case
ployees at issue in the instant charge,4 Malrite com
pels us to defer to the arbitrator's interpretation of
the union-security clause, the resolution of which is
an essential aspect of the case now before us.
Since Spielberg Mfg. Co.,5 the Board has consist-
ently held that it will defer to an arbitration award
where the proceedings have been fair and regular,
all parties have agreed to be bound, and the deci-
sion of the arbitrator is not clearly repugnant to the
Act. In addition, the Board has required that the
issue involved in the unfair labor practice proceed-
ing must have been -fully presented to, and consid-
ered by, the arbitrator. 6 Here , as in Malrite, the
Spielberg requirements have, been met.. In both
cases, one of the two issues presented to the Board
was not considered by the arbitrator because the
events giving rise to the issue occurred after the ar-
bitration hearing concluded. However, the majority
has articulated no reason why this case should
differ from Malrite in deferring to that issue which
was fully presented to, considered, and resolved by
the arbitrator.
The resolution of the contract clause in this case
is fundamental to the resolution of the unfair labor
practice charge on which we are ruling. The arbi-
trator resolved the contractual issue by interpreting
the union-security clause as requiring the Respond-
ent to discharge employees who are'not in compli-
ance with union membership provisions. In so find-
ing, he did not determine whether the Respondent
had violated the Act. This failure to address the
statutory issue, however, does not preclude defer-
ral. In Bay Shipbuilding Corp., 251 NLR]B 809, 810
(1980), the Board stated that it will defer to an ar-
bitrator's interpretation of the contract even where
the arbitrator does not address the Act, so long as
the factual findings made in the course of resolving
the contractual issue resolve the unfair labor prac-
tice at issue as well. Here, by engaging in their
own interpretation of the contract prior to address-
ing the merits of the application of clause, the ma-
jority implicitly recognizes that the contract inter-
pretation issue has been presented to us as part of
the unfair labor practice charge. The other aspect
of the unfair labor practice charge, -involving the
application of the union-security clause to specific
employees, was not presented to, or addressed by,
the arbitrator. In light of the fact that the contract
interpretation issue has been determined by the ar-
bitrator in a way which resolves - this aspect of the
° As no party has requested it, deferral pursuant to the Board's policy
articulated in Collyer Insulated Wire, 192 NLRB 837'(19'71), and United
Technologies Corp., 268 NLRB 570 (1984), is inappropriate See NCR
Corp, 271 NLRB 1212, 1213 fn 7 (1984), and cases cited therein.
5 112 NLRB 1080 (1955)
6 Raytheon Co., 140 NLRB 883 (1963).
980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
unfair labor practice charge, I do not understand
why my colleagues would not agree to defer to the
arbitrator's contract interpretation and then make
their determination as to the application of the
clause based on the facts before us. Indeed, this is
the very outcome of the holding in Malrite, on
which the majority purports to rely.
Based on the foregoing consideration, I would
defer to the arbitrator's interpretation of the- con-
tract and then proceed to resolve the application of
this clause to specific employees on the merits. In
so doing,,I would reach the same conclusion as my
colleagues and, find the Respondent violated Sec-
tion 8(a)(5) by its refusal,to honor the union-securi-
ty clause.
APPENDIX
WE WILL offer those employees discharged, laid
off, or suspended as a result of the work relocation
from Plymouth to Sioux Falls immediate and full
reinstatement to their former jobs or,, if those jobs
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and
WE WILL make them whole for any resultant loss
of earnings, and other, benefits, less any net interim
earnings, plus interest.
WE WILL honor, the union-security clause in the
1979-1982 collective-bargaining agreement.
LITTON MICROWAVE COOKING
PRODUCTS DIVISION, LITTON SYS-
TEMS, INC.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us ' to post and abide by this notice.
WE WILL NOT fail or refuse to bargain collec-
tively in good, faith with United Electrical, Radio
and' Machine Workers of America (UE), and its
Local1139,, with respect to any decision to relo-
cate the international and commercial lines work
from Plymouth, Minnesota , to Sioux Falls, South
Dakota.
WE WILL NOT fail or refuse to furnish the Union
available information necessary for and relevant to
its function as bargaining representative.
WE WILL NOT fail or refuse to bargain with the
Union by failing and refusing to comply with the
union-security provision of our 1979-1982 bargain-
ing agreement with the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL bargain collectively in good faith with,
the Union, concerning any decision to relocate the
international and commercial lines work from
Plymouth to Sioux Falls.
WE, WILL promptly furnish the Union with the
studies, analyses, and other .information requested
which will enable the Union to engage in intelli-
gent bargaining.
WE WILL transfer back to the Plymouth plant
the'international and commercial lines work previ-
ously performed at that facility by bargaining unit
employees represented by the Union.
James L. Fox, Esq., for the General Counsel '
Francis X. Dee, Esq., for the Respondent' in Case 18-
CA-7323.
Mathias J. Diederich, Esq., for the Respondent in Cases
18-CA-7572 and 18-CA-7689.
Robert Z Lewis, Esq., for the Union.
DECISION
STATEMENT OF THE CASE
BRUCE C . NASDOR, Administrative Law Judge. This
case was tried at Minneapolis , Minnesota , on April 25,
26, 27, and ,28, 1983, and June 7 and 8,1983 . The consoli-
dated complaint alleges that Respondent violated Sec-,
tions 8(a)(1), (3), and (5) and 8(d) -of the National Labor
Relations Act (Act).
On the entire record , including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by all of the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is, and has been at all times material
herein, a Delaware corporation with offices and places
of -business in Plymouth, Minnesota and has been en-
gaged in the manufacture, sale, and distribution of micro-
wave cooking products. During the 12-month period
ending December 31, 4981, Respondent, in the course
and conduct of its business operations, sold and shipped
from its Plymouth, Minnesota facility, products, goods
and materials valued ' in excess of $50,000 directly to
points outside the State of Minnesota.
The Respondent is-an employer engaged in commerce
within the meaning -of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION
United Electrical, Radio and Machine Workers of
America (UE) and its Local 11391 (the Union), have
1 The Local is included as amended at the hearing.
LITTON SYSTEMS 981
been at all times material herein, labor organizations
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Issues
1. Whether the Respondent relocated certain bargain-
ing unit work in repudiation of its bargaining obligations
under the Act.
2. Whether Respondent modified or repudiated the
collective-bargaining agreement by refusing to respond
and/or unduly delaying responses to grievances filed at
the third step of the grievance procedure.
3. Whether Respondent repudiated or modified the
collective-bargaining agreement by refusing to comply
with an arbitrator's award concerning , the assignment of
overtime work.
4. Whether Respondent repudiated or modified the
collective-bargaining agreement by refusing to discharge
employees pursuant to the union -security clause of the
contract.
Background
As of 1972, Respondent was producing microwave
ovens at four facilities located in the. Minneapolis , Minne-
sota metropolitan area, and had been a party to succes-
sive collective-bargaining agreements with the Union
covering employees at those facilities . The violations are
alleged to have occurred during the term of the collec-
tive-bargaining agreement effective from October 1,
1979, to October 31, 1982 . In late 1976, Respondent op-
erated a countertop microwave oven assembly plant in
Minneapolis for, domestic use. In early 1977, Respondent
commenced to operate a new plant in Sioux Falls, South
Dakota, and began producing countertop microwave
ovens for domestic use in this new plant .; Eventually Re-
spondent stopped building the countertop microwave
ovens for domestic use in Minneapolis entirely, and pro-
duced all of these particular ovens in Sioux Falls. The
transfer of this work was completed by November 1981,
when the Union and Respondent commenced to,discuss
the transfer of the international line from Minneapolis to
Sioux Falls.
In 1977, 1978, and 1979, Respondent laid off a large
number of employees . Prior to the , inception of the Sioux
Falls plant , there were over, 11200 employees in the Min-
neapolis bargaining unit . As ',the number of employees at
the Sioux Falls plant increased, the number of employees
at the Minneapolis plant decreased . By the time the par-
ties began to negotiate in 1979, there were less than 700
employees in the Minneapolis bargaining unit, and by
November 1981, there were', only 300 to 350 bargaining
unit jobs left in Minneapolis . In 1980, the Union orga-
nized Respondent 's employees at the Sioux Falls plant,
but as of the time of the instant hearing, the parties had
not entered into a collective-bargaining agreement cover-
ing these employees.
The Relocation of the International Line
Rocco DeMaio, financial secretary of Local 1139, and
Thomas Phillips, - vice president of Human Resources
both testified with respect to the 'bargaining concerning
the relocation of the international and commercial lines
from Minneapolis to Sioux Falls . In the main, there are
few discrepancies in their testimony and where such'
exist, they will be pointed out.
Phillips testified that he called DeMaio on March 3,
1981 , although DeMaio remembers the date as June
1981 , and told him that Respondent was commencing a
process to determine where it could most effectively
manufacture its product . He advised DeMaio that Re-
spondent was losing $3 million per year on its range
business and this loss triggered the study.
The dates of the telephone call ; and telephone calls to
follow, are not critical to the outcome of this case.
According to DeMaio during the course of the first
telephone calls he told Phillips that the Union wanted to
be kept informed of the progress of the study and re-
quested bargaining concerning any decision that was
made. Phillips testified that DeMaio also asked whether
the international line was being moved to Sioux Falls
and that he replied all options were being studied, and
Respondent would advise the Union when the studies
were completed.
On June . 11, 1981 , Phillips returned a call to DeMaio.
DeMaio asked if Respondent was moving its range and
international lines to Sioux Falls , and why it was install-
ing a 5A-cycle generator in Sioux Falls . Phillips respond-
ed that the 50-cycle generator had been planned for
some time, and Respondent was moving one of the two
generators in Minneapolis to the Sioux Falls, plant. Phil-
lips told DeMaio there were no definite plans to move
the international range line to Sioux Falls but the oper-
ations people were still looking at alternative ways to
manufacture . Phillips said he would let DeMaio know
when the Company was getting serious and DeMaio re
sponded that if they decide to move it, "we are going to
bargain over it."
On either June 20 or 22 , 1981, Phillips again called
DeMaio and told him that a couple of models were,
going to be manufactured in' Sioux Falls until the Com
pany could catch up on a back order situation . Phillips
advised , DeMaio that , Respondent was continuing with its,
study but no decision had yet been reached . The testimo-
ny of Phillips , and, DeMaio is consistent that the next
conversation took place by telephone on October 20,
1981, when Phillips called DeMaio and told him that Re-
spondent was, having some problems with A.E.G., its
representative in Germany . He requested DeMaio keep it
confidential, to which DeMaio ' agreed ., Phillips advised
DeMaio that, Respondent was still looking at the alterna-
tives for manlufacturing its products . .Phillips advised
DeMaio that no decision had been reached as a result of
any study.
DeMaio testified that Phillips called him on October
29, 1981 , and told him that the study was continuing,
that no decisions had been made , and that he would let
DeMaio know as soon as he learned anything further.
Phillips wrote to DeMaio on October 30. 1981, advising
DeMaio that Respondent had completed one phase of its
analysis of production requirements ; Respondent had de-
termined it would be more economical to produce cer-
982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
taro international line models in Sioux Falls, that, as a
consequence, there would be a "substantial reduction in
force" of Minneapolis bargaining unit employees, and
Respondent was willing to discuss the effect of the work
transfer with the Union.
DeMaio received and read the letter as he was talking
to.Phillips and Director of Human Resources Bates. This
conversation between DeMaio, Phillips, and Bates was
over the telephone speaker in Phillips' office. After Bates
and DeMaio discussed the layoff, Phillips asked DeMaio
if he had received the October 30 letter. DeMaio re-
sponded that he was just reading it and asked where the
Company would build the models in Sioux Falls. Phillips
explained they had four lines and one would be devoted
to the international models. DeMaio suggested that they
meet to discuss the matters to which Phillips agreed and
a meeting was set for November 5, 1981.
Apparently during the same telephone conversation,
DeMaio asked Bates what it would take to keep the jobs
in Minneapolis and Bates replied that it was an economic
issue and that such factors as unemployment compensa-
tion and workmen's compensation entered into- it and
there was not much control that the Union had over
those types of things.
Although the meeting on November 5, 1981, was at-
tended by several representatives for both parties, the
chief spokesmen were DeMaio and Phillips.
DeMaio and Bates initially discussed an arbitration
award by arbitrator Miller . Bates said the Respondent
would follow the award as he understood it. Bates fur-
ther told DeMaio that Respondent would be willing to
go to an expedited arbitration if the Union did not agree
with Respondent's position, but DeMaio refused, stating
that the Union would do everything it could to `enforce
the award.
DeMaio gave Phillips a letter dated November 5, 1981,
containing 11 questions which Phillips began to answer.
DeMaio then read and gave to Phillips the remainder of
this letter denoted "formal request." Addressing himself
to the first part of the formal request, Phillips told
DeMaio 'he had never said that Respondent was losing
money. Phillips stated the Company 'was not bankrupt
and was a money making business. Phillips continued by
telling DeMaio there was no study or analysis, and that
the Respondent's proposal to transfer the International
Model to Sioux Falls was based on a comparison of the
cost of building units in Sioux Falls, vis-a-vis Minneapo-
lis. Dowling, vice president of manufacturing, delineated
the microwave market -and pointed out measures which
Respondent had taken to reduce costs. DeMaio respond-
ed that the union had to have all of the information de-
scribed in the November 5 letter. Dowling explained
there was an $8 to $10 per unit difference between man-
ufacturing in Sioux Falls compared to Minneapolis, and
DeMaio requested a breakdown of those figures. Dowl-
ing was not prepared at that time to give a detailed
breakdown. Phillips then responded to the remainder of
the information in the formal request, advising DeMaio it
was irrelevant. DeMaio stated it was relevant, Phillips
maintaining otherwise, and that he, Phillips, did not think
the Respondent had an obligation to bargain over the de-
cision to transfer the work. Phillips maintained that Re-
spondent -was there to discuss the effects of the decision
to transfer the work. After a caucus, Phillips replied to
DeMaio's request that the Union have all of the informa-
tion set forth in its November 5 letter, that Respondent
would provide the information it had looked at in formu-
lating its proposal. While Phillips recalled DeMaio
making a proposal on "effects" the following day,
DeMaio in his testimony remembered that he gave Phil-
lips a proposal on the "impact" during the November 5
meeting. Phillips stated he would respond to the "ef-
fects" proposal in writing. After the November 5 meet-
ing, at approximately 5:30 p.m., Phillips called DeMaio
and told him he had been reading the "formal request."
Phillips said the information requested was not relevant
but there were some relevant items the Respondent was
willing to make available. Phillips said he would like a
response from the Union. They agreed to meet on No-
vember 6 the next day. -
On November 6, 1981, Phillips reviewed the 11 ques-
tions on page 1 of DeMaio's November 5 letter, summa-
rizing his answers. Dowling then went over some infor-
mation on the cost comparison between Sioux Falls and
Minneapolis. He stated the major difference was the
wage, rates, although he indicated there was a difference
in workmen's compensation rates and unemployment
compensation rates. Dowling explained the average
hourly rate in Minneapolis was $6.89 an hour, whereas in
Sioux Falls it was $4.55 an hour. The difference was
$2.34 an hour for each. unit employee, or 34 percent.
Dowling stated that he had used the same standard hours
to manufacture a unit in Minneapolis and, in Sioux Falls.
He said the labor costs were about $27 per unit in Min-
neapolis, whereas in Sioux Falls it was a little over $18
per unit., Accordingly, it costs $9.58 per unit more in
Minneapolis than in Sioux Falls. He also pointed out that
the consumer- model being produced in Sioux Falls and
the international model in Minneapolis had, a common
cavity, i.e., the inside of the oven, and that by consoli-
dating the two operations, the Respondent would only
need to carry one inventory of raw goods rather than
two. DeMaio asked if the Minneapolis rate included the
rate paid in the fabrication or paint shops, and Dowling
explained the rate was an assembly rate. Phillips pressed
DeMaio for a ^ proposal, and DeMaio told Phillips he
would get back to him by Monday or Tuesday of the
following week at the latest. The meeting that day, No-
vember 6, occurred on a Friday. Either Dowling or
Phillips told DeMaio that if the Union came back with .a
proposal in 'the area of $4 to $4.20 per hour Respondent
would look at it. Phillips told DeMaio the only informa-
tion the Company was looking at ,was the wage differen-
tial between Sioux 'Falls and Minneapolis. DeMaio con-
tinued to'take'the position that'in order to make a pro-
posal it needed all of the requested information. Phillips
told DeMaio that some of the information requested was
not relevant, but Respondent would provide' the union
with that information which was relevant.
On Wednesday, November 11, 1981, Phillips reached
DeMaio by telephone at DeMaio's 'office. He asked
DeMaio if the Union had a proposal to which DeMaio
responded that he had mailed a letter to Phillips stating
i
LITTON SYSTEMS
that the Union was renewing its request for information
set forth in its November 5 letter . Phillips replied that
the Respondent had already made available to the Union
all of the information relevant ' to the Company's propos
al. In a letter dated November , 11, 1981 , Phillips advised
DeMaio that , Respondent had made a preliminary deci-
sion to transfer line 1 to Sioux Falls , but it was still will-
ing to discuss the entire situation . Subsequently DeMaio
hand-delivered his letter of November 11 to Phillips, and
Phillips responded with another letter dated November
13 stating that Respondent would transfer the interna-
tional line, and that the Union had been given the rele-
vant information Respondent considered when reaching
its tentative decision.
The parties met again on November 17, 1981 . DeMaio
requested that the international line 'not be moved . Phil- -
lips again asked DeMaio if the Union had a proposal and
DeMaio responded that the Union needed information.
DeMaio stated that Respondent was asking the Union
"to buy a pig in a poke," and that it was not fair to the
employees not to have the information . Phillips told
DeMaio that Respondent had already given the Union
all of the information that Dowling and ' his operations
group had looked at, DeMaio had all of the relevant in-
formation and there was nothing else Phillips could give
him. DeMaio again requested studies and analyses. Phil-
lips advised him that there were no formal studies that
had been conducted by the operations people, and any
analyses that had been done were the ones that had, been
shared with the Union, that the Union had all of the rele-
vant costs. Dowling advised DeMaio that the unit cost
difference included fringes such is unemployment insur
ance and workmen's compensation insurance, and
DeMaio responded that the Union had no control over
those items . DeMaio and the union representatives cau-
cused. When they came back, DeMaio stated that the
Union could not make 'a proposal and that it needed all
of the information described in his letter of November 5,
1981. Dowling ' told DeMaio that the Union was aware of
all of the information he and his group had used in an
effort to decide where the work should be produced.
Phillips told DeMaio he was reasonably sure that with-
out a union proposal, the final decision would be made
to move the work from' Minneapolis to Sioux Falls. Ap-
parently at the conclusion of the meeting DeMaio told
Phillips that the ball was in his court . Phillips understood
this to mean that it was up to the Respondent to make
the decision.
On November 19, 198 1, Phillips wrote to DeMaio stat-
ing that a decision had been made to transfer the interna-
tional models to Sioux Falls . On the same day, DeMaio
wrote a letter to Phillips restating his request for the in-
formation referred to in his November 5, 1981 letter.
DeMaio's testimony reflects that on . November 6,
1981, the layoff occurred.
Relocation of the Commercial Line
In early March 1982 , Phillips called DeMaio and told
him that the studies regarding 'the relocation of the com-
mercial line were underway and it was time to make 'a
decision.
983
On March 9 , 1982, Phillips met with DeMaio and
other representatives of Respondent and the . Union. Phil-
lips explained that the studies of the various alternatives
as to where Respondent should manufacture its product
had , been ongoing . He stated further, that Respondent
was now in a position in which Dowling and his oper-
ations group were prepared to make a proposal about
moving line 2 to Sioux Falls. He stated that the reason
was basically the same as that for transferring the inter-
national line, there was a significant cost difference be-
tween manufacturing in Minneapolis and Sioux Falls.
DeMaio requested the same ' information he had earlier
requested in his November 5, 1981 , letter. Phillips ad-
vised DeMaio that some of the information requested
was relevant and some was not , but Respondent would
share with the Union the data it had looked at when ex-
amining the feasibility of moving work to Sioux Falls.
Phillips said the Company wanted to make its decision
by March 19, 1982. Dowling stated there was a $9 to $11
cost differential between manufacturing in Minneapolis
and Sioux Falls , and that there were about 20 different
models. Dowling said the figures were based on an aver-
age rate of about $6 . 80 an hour in Minneapolis and $4.50
to, $4.55 in Sioux Falls. He also said -there would be
other savings by reason of "economies of scale ," i.e., Re-
spondent could save money by bringing all of its manu-
facturing together in one place. Onasch , a member of the
union committee, and DeMaio asked a few questions to
which Dowling' responded . Committee member Wacker
asked if the wage difference was the big thing, and
Dowling replied affirmatively. Union representatives
wanted to know if the range line was moving to Sioux
Falls , and the Respondent replied it had no plans to
move the range line, but it could not guarantee the range
line would never be moved in the future . DeMaio stated
that the rate for "A" assemblers was higher than $6.89
beenper hour, and Bates replied that if a higher rate had
used in the calculations there would be an even greater
difference than the $9 to $11 which Respondent was re-
lying on in its calculations . DeMaio requested a seniority
list for Sioux Falls, and Phillips said he would get one
for him . During this meeting, , Phillips gave DeMaio a
draft of a memorandum which Bledsoe , the division
president, was preparing to distribute. At the conclusion
of the meeting , union representatives asked some ques-
tions about new products and .Respondent stated- it was
not considering any new product. '
Later that day, DeMaio wrote - to, Phillips requesting
cost information , seniority lists for, Sioux Falls and Min-
neapolis, and the same information he had requested in
his letter dated ' November 5, 1981 . On March 10, 1982,
prior to the receipt of DeMaio's letter of March 9, Phil-
lips wrote to •DeMaio setting forth the cost differentials
discussed during the meeting of March 9 and reiterating
the necessity for making a decision by March -19, 1982.
After receiving DeMaiO 's March 9 letter , Phillips wrote
a letter dated March 12, 1992, to DeMaio, pointing out
the cost data had already been provided, together with
the seniority lists for Minneapolis and stating That a
Sioux Falls list would be provided as soon as one was
available. In this letter Phillips mistakenly stated that Re-
984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent wanted to make a decision by April 19, 1982.
On March ` 17, 1982, letters were again exchanged by the
parties. DeMaio wrote Phillips making a formal request
for, information as stated in his November 5, 1981 letter.
DeMaio concluding by stating that the sooner the Re-
spondent gives the Union all of the requested informa-
tion the sooner the Union ,could look at it. On March 17,
1982, Phillips called DeMaio to inquire about a response
because March 19 was drawing close . During the call,
DeMaio said he had ' until April 19 and Phillips checked
his March 12 letter, saw the error, called DeMaio back
and told him of the mistake and wrote a confirming
letter which was hand delivered on March 17, 1982.
The parties met again on March 19, 1982. At the
outset DeMaio repeated his demands for more informa-
tion . He wanted a breakdown on "variable overhead"
and all of the information described in his November 5,
1981 letter . DeMaio asked for "studies " and Phillips said
the Union had received all the relevant information.
Phillips advised DeMaio there were no formal studies,
booklets, or anything of that character and that the
Union had the analysis Phillips had made reference to in
his letters . Onasch asked about "transportation costs,"
and Phillips said he did not know such costs but assumed
the information had been gathered and he would try to
get it . Phillips said he would check to make sure that the
$6.89 per hour rate was the correct assembly rate.
DeMaio wanted to know if the "office people " were in
the "variable overhead" figure , and Phillips replied nega-
tively . At the conclusion of the meeting DeMaio request-
ed that Respondent not transfer the work and stated that
the Union needed all of the ' information it had requested.
Phillips stated he would get back to the Union with the
two items, the transportation costs and verification of the
$6.89 per hour -assembly rate.
On March 23 , -1982, Phillips wrote a detailed letter to
DeMaio' explaining how standard labor hours were cal-
culated , how the - average hourly rate was established,
what was included in the variable overhead rate, and
how the wage differential between Sioux Falls and Min-
neapolis had been computed . The letter further extended
the date for a decision - to move to March 26, 1982, and
was hand delivered to DeMaio on March 23 . DeMaio
wrote a letter to Phillips, dated March 25, 1982 , and pre-
sented it to Phillips at the next meeting which was held
on March 26, 1982.
At the March 26, 1982 meeting the Union had no pro-
posal . DeMaio gave Phillips a letter requesting more in-
formation . Phillips responded to some of the requests. He
told DeMaio ' the transportation costs amounted to $1.50
per -unit, and that the personal time, fatigue and delay
calculations were timestudy numbers. Phillips stated fur-
ther that no increases were anticipated for either Minne-
apolis or Sioux Falls. He explained that his. prior refer-
ence to - seniority referred to increases which would be
given as the employees progressed through the various
steps.; DeMaio again requested studies and any analysis.
Phillips told DeMaio the Union had all of the relevant
information and that their were no analyses or studies,
and that there was nothing Respondent could show the
Union that it had not already made available. Phillips
testified in detail as to why he did not respond to the
balance of the items requested by DeMaio . In some in-
stances the information simply did - not exist . - For exam-
ple, total production costs for each type of unit , a break-
down for Sioux Falls and Minneapolis - Respondent does
not keep such costs . In other instances DeMaio 's requests
were ambiguous . For example, the selling price for each
item. There are three selling prices , the prices to a dis-
tributor, a dealer, and the customer . Other questions
Phillips testified he found impossible to answer unless
each unit was followed through the plant. DeMaio stated
he was not prepared to go ahead until he received the
information described in both letters. Phillips advised
DeMaio that the date for a decision had been extended 1
week and that he was certain that Dowling would make
a decision unless a union proposal was forthcoming.
Later that day, on March 26, 1982 , Phillips called
DeMaio and told him the decision had been made to
transfer the commercial line to Sioux Falls. Phillips also
sent a letter to DeMaio confirming the conversation and
stating , "as I indicated to you at our meeting this morn-
ing, the, Company has provided you all the relevant in-
formation on-which the proposal to you was based." ,
The Arbitration Award Relative to the Assignment
of Overtime
The Union filed a grievance regarding the assignment
of overtime in the fabrication shop. On August 21, 1981,
the arbitrator, Richard J . Miller,, rendered his decision.
DeMaio concedes that he did not understand any part of
the arbitrator's decision-not one paragraph . In this
regard he wrote to Miller asking for clarification . There-
after, the arbitrator and the parties exchanged a series of
eight letters in an effort to clarify the award . Finally, the
arbitrator wrote a letter apologizing for the confusion
and expressing the hope that any future arbitration will
not need clarification because of "this sort of confusion."
Without detailing the various letters, suffice it to say that
the parties each felt that its respective position was sus-
tained by Miller.
When the parties met on November 5, 1981 , the first
subject of discussion was Miller's arbitration decision.
According to the testimony of DeMaio , Bates stated that
the decision was a split one and Respondent was not
going to abide by it , rather it would follow the prior
system unless the Union would agree to pick another ar-
bitrator and„hear the case -again . DeMaio allegedly re-
sponded to Bates that the Union was not going to pick
arbitrators until Respondent gets a decision they like, and
that 'the Union would do everything necessary to enforce
the award including going to the National Labor Rela-
tions Board . ' DeMaio testified further that Bates respond-
ed the National Labor Relations Board would only tell
the parties to go back to arbitration . According to Phil-
lips, ' Bates told DeMaio that Respondent was going, to
follow the arbitrator 's award as it was originally ren-
dered . Phillips testified that Bates told DeMaio that in
order to get the matter resolved as quickly as possible,
Respondent was willing to proceed to an expedited arbi-
tration . DeMaio refused this offer and took the position
that the Union wanted Respondent to follow the last
letter of clarification issued by arbitrator Miller.
LITTON SYSTEMS"
On July 19 , 1982 , DeMaio wrote Bates asking why the
Respondent would not abide by Miller 's decision. Bates
responded that he had explained the Respondent 's posi-
tion to the Union on, November 5, 1981 . In his letter,
Bates restated the Respondent 's position, that it remains
as it was at the arbitration hearing , as summarized in its
brief. Bates further states that Respondent believes its po-
sition was affirmed by Miller's award. Moreover, accord-
ing to Bates, Miller 's clarifications served only to con-
fuse, and are at odds with his original decision . Bates'
letter continues that the Respondent offered an expedited
arbitration before another arbitrator and that this offer
stands. He also referred to the fact that the Union had
subsequently filed another grievance on , the same issue.
Refusal to Process Grievances
The complaint alleges that the violation occurred
during the time period from August 2 , 1981 , through
June 29 , 1982 . In 1976 and 1979, the Union proposed
changes in the grievance and arbitration procedures of
the expiring collective -bargaining agreement . The Union
wanted a resolution of a grievance in favor of the griev-
ant, in the event that the Respondent did not respond to
a grievance in a timely matter. The Respondent consist-
ently rejected ' the Union's proposal and the matter was
ultimately resolved by an agreement that the failure of
the Respondent to answer a grievance within the time
limits prescribed in the contract would cause the griev-
ance to automatically move to the next step . The parties
ultimately agreed that a failure on the part of the Re-
spondent to answer a grievance within 10 days after a
third-step meeting would give the Union the right to
take the grievance to arbitration . The parties agreed sub-
sequently to deviate from the 10 days and rather, allow a
30-day period within which the Respondent must
answer, in order to grant it more leeway.
The contract which is applicable specifically provides
inter alia,"failure on the part of the Company to answer
a grievance within 10 working days after a third step
meeting ... may cause the grievance to be moved to
step 4 at the discretion of the Union."
DeMaio testified that he and Joe Miller ,, field organiz-
er, prepared two lists, one reflecting the grievances filed
during the critical period and the second list reflecting
those grievances where no written response had been re-
ceived by ' the Union within ' 30 days of the third-step
meeting. General Counsel 's Exhibit 29 captioned "List of
Grievances with no response or other explanation" con-
tains several errors and - omissions . Testimony by DeMaio
reveals that during the critical period , Respondent was
actively engaged in meeting with union representatives
over many grievances and that second -step replies and
many third-step written replies were provided by the Re-
spondent and many grievances were being disposed of
by being dropped , honored , or resolved in some other
manner.
Testimony by DeMaio reflects that the parties were
engaged, during the period August 2, 1981 , through June
29, 1982, in administering the grievance procedure: It is
evident, however , that Respondent failed to observe its
contractual obligations by failing to respond to some
985
grievances and by delaying beyond 30 days some of its
responses:
Failure to Honor the Union -Security Clause
The duration of the applicable collective -bargaining
agreement is from October 1, 1979, to October 31, 1982.
During negotiations for this contract the Union engaged
in an economic strike . Apparently it is the strike replace-
merits who continued in Respondent's employ after the
cessation of the strike , who the Union seeks to have dis-
charged . The record is not explicit in this regard because
of DeMaio's evasive responses and his memory gaps. As
the matter stands, it is not critical to the resolution of
this allegation of the complaint.
The germane part of the union-security clause states
"when the Union notifies the Company that an employee
covered by this agreement has failed to,pay the monthly
dues that are uniformaly levied against all members and
by reason thereof is no longer in good standing in the
Union, the Company may discharge such employee.
" (Emphasis added.)
The Respondent issued a memorandum on December
7, 1979 , stating in essence , that the decision to pay or not
to pay monthly union dues was one for each new em-
ployee to make , and that the Respondent takes no posi-
tion regarding that decision. Moreover, Respondent con-
cludes that it may terminate employees for failure to pay
monthly dues if it elects to do so but it has no obligation
to discharge new employees . Therefore Respondent de-
cides in that memorandum that it will not discharge new
employees who make the decision not to pay monthly
union dues.
Thereafter on December 12, 1979 , the Union filed a
grievance that resulted in an arbitration decision dated
December 6, 1980 . Arbitrator Lindquist interpreting sec-
tion 2 of the collective-bargaining agreement sustained
the Union's grievance concerning the 1979 memoran-
dum. The arbitrator did not address the question of
whether the employees involved should be discharged,
based on the Union 's contention and advice that this
question was not before the arbitrator and he was not to
confront any issue of discharge of the particular employ-
ees.
It was ' not until May 12, 1981,2 that DeMaio allegedly
sent letters to a group of employees advising, then that
they were delinquent in not paying their union,dues.
On June 17 , 1981, DeMaio met with Phillips, and re-
quested that Respondent discharge the 14 employees in
question. Phillips , -responded that he would have 'to do
some checking and get back to him . DeMaio then con-
firmed his 'oral request with a letter dated June 18, 1981.
The letter states inter alia "this is to confirm our conver-
sation on June 17, 1981, where the Union requested the
Company to enforce the union-security clause with re-
spect to the following employees who have refused to
join o' r maintain their membership in the Union after
being properly notified of their delinquency of [sic] the
Union." The letter also states that the Union expects the
Company to enforce the, union-security clause of the
2 The date is incorrectly set forth as 1982 in Respondent 's brief
986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
agreement with respect, to these - employees. DeMaio
gave Phillips copies of the letters the Union has sent to
the individual employees.
On June 22, 1981, Phillips and DeMaio spoke by tele-
phone. Phillips told DeMaio that he was being "cagey"
in that he did not state in the letter that he wanted the
employees terminated . DeMaio advised "Phillips that he
did not want to see anybody get terminated but "they
failed to pay their union dues, they' [sic] were ample
time, they refused to pay, therefore, they got to be termi-
nated." Phillips responded that if DeMaio really wanted
these people terminated he would have to do , some
checking again, Phillips allegedly also stated that perhaps
in the next contract they would have to change that lan-
guage . At the end of the conversation Phillips said that
he would check and see what has to be done and get
back to DeMaio.
By memorandum dated July 17, 1981, Respondentre-
scinded its December 7, 1979 memorandum. The July
1981_memorandum states, "on ,December 7, 1979 the
company sent a letter to all bargaining unit employees
stating it was the company's opinion that based on the
collective-bargaining agreement ' with the Union there
was no obligation for the company to discharge an em-
ployee, for failure to pay monthly dues to the Union.
This became a matter of arbitration between the Compa-
ny and the Union and as a result of that arbitration, the
Company now rescinds the letter of December 7, 1979.
The document was signed by Tom Phillips.
Thereafter, prior to any response from Phillips,', on
July 7, 1981, the Union filed the charge, which is the sub-
ject of this proceeding.
Some of -the, delinquencies included initiation fees al-
though the union security-clause does not require pay-
ment of initiation fees.
Apparently, the General Counsel takes the position
that in order,, to determine what "a member in good
standing" means one , would have to read the Internation-
al constitution and bylaws. There is no evidence that the
employees were afforded access to the International con-
stitution or the local bylaws nor is there any evidence
that they; had copies of ,the collective-bargaining agree-
ment or the arbitrator's decision.
On January 6, 1982, DeMaio sent Respondent a letter
requesting that it enforce the union-security clause with
regard to the two employees who were notified of their
delinquencies in the November 24, 1981 letters.
Conclusion and Analysis
The Relocation of the International and
Commercial Lines
Counsel for the General ,Counsel relies heavily, if not
entirely on Milwaukee Spring Division, 265 NLRB 206
(1982), to support its positions In Milwaukee Spring the
employer ; relocated work due solely to comparatively
high labor costs: The Board found a midterm modifica-
tion of the contract within the meaning of Section 8(d)
3 Los Angeles Marine Hardware Ca, 235 NLRB 720 (1978), also serves
as a basis for his contentions
and thus violations of Section 8(a)(1), _(3), and (5) of the
Act.
Recently the Board requested and obtained a remand
of the Milwaukee Spring case from the Court of Appeals
for the Seventh Circuit. Oral argument was held on Sep-
tember 20, 1983. Therefore, neither Milwaukee Spring nor
Los Angeles Marine Hardware offers much in the way of
direction at this juncture.
In my opinion, the broad management rights clause in
the pertinent contract and the pattern and history of lay-
offs establishes, that Respondent reserved onto itself the
right to.relocate work,from Minneapolis to Sioux Falls.
During the 1982 negotiations, Respondent proposed,a
management-rights clause which DeMaio rejected while
acknowledging that Respondent did not need such a
clause because it "covers what they [Respondent] do
now, they don't need anything more." Thus DeMaio rec-
ognized that Respondent "had the right to do anything it
wanted under the current language."
The history' of Respondent's past actions reflect that it
began to., produce countertop ovens in- Sioux Falls,
gradually decreasing employment in Minneapolis, until
finally there was no-countertop production in Minneapo-
lis, it was all in Sioux Falls. It is evident from the record
that the Union was aware of this.4
The local union disseminated various written letters
and documents ascribing layoffs at Minneapolis to the
transfer of work and the buildup of the complement of
employees to ' Sioux Falls. The attempt by DeMaio 'to
disavow the Union's connection to the various newslet-
ters and shop papers was, suffice it to say, most uncon-
vincing. There is no question in my mind that these were
authored by someone in the Union and disseminated by
the Union. Shop chairperson Onasch conceded that he
had written'a number of the articles.' '
In my opinion Respondent bargained for and acquired
the right to transfer work and layoff employees. Thus, in
my' view, under the circumstances of this case, the lay-
offs that were necessitated by the transfer ' of work are
not rendered illegal. The record evidence is replete with
past'layoffs and no objection by the Union.
Past practice, the tenure of prior negotiations,, and the
overall conduct of the parties convince me that they be-
lieved the Respondent had the right to transfer the work.
Indeed, not only did the Union fail to file charges or
commence civil actions, it never even requested bargain-
ing-over the decision to gradually transfer work (coun-
tertop) and staff Sioux Falls.
As counsel for the Respondent points out, Onasch, the
Union's local president at the time, allowed that the only
thing the Union could do was "to make sure that the lay-
offs, bumping and recalls ' ate administered properly
under the terms of the contract.,
Examination of the very detailed dynamics of various
meetings between DeMaio and Phillips demonstrates to
me that Respondent bargained in good faith as regards
the decision to transfer the two lines , DeMaio maintained
throughout' that he wanted to bargain if a decision is
made to move, i.e., after not before. I believe Respond-
? These events occurred prior to November 1981
LITTON SYSTEMS 987
ent gave him ample opportunity to both influence the de-
cision and bargain over same before it was made, and to
bargain over the effects of such a decision.
Throughout the meetings, DeMaio insisted that he be
made privy to "studies," which Respondent continued to
maintain were nonexistent. At one point he even took
the position that the Union would not bargain until it re-
ceived the "studies." Moreover, DeMaio never explained
the relevancy of some of the requested information al-
though Phillips questioned same.
Phillips testified, and I was impressed with his de-
meanor and credibility, that he was not aware of any in-
formation that had been considered by Respondent
which was not provided to the Union. As Respondent's
chief negotiator, he certainly knew what was, and was
not, available.
In my opinion Respondent provided the Union with
all relevant information. Respondent never advanced an
"inability to pay." To the contrary, it maintained it was
solvent and making money.
When pressed for the basis or need for' the information
which 'Respondent considered irrelevant, DeMaio's re-
sponses fell into the realm of vague generalization. See
Southwestern Bell Telephone Co, 173 NLRB 172 (1968). In
that case, cost was not asserted as the reason for subcon-
tracting, thus detailed cost information would not have,
made subcontracting any more or less permissible, so
there was no probability of relevance. Cases cited by the
General Counsel, Teleprompter Corp., 227 NLRB 705
(1977), and Goodyear Atomic Corp., 266, NLRB 890
(1983), are inapposite. In Teleprompter the Respondent
advanced a "plea of poverty." Accordingly, respondent
was found to have violated Section 8(a)(5) of the Act by
refusing to furnish the union with financial records re-
garding its local facilities for examination, in order to
substantiate its claim that it was financially unable to
grant wage increases. In Goodyear, Respondent had three
defenses none of which was that the information was un-
available. The major defense was raised against releasing
requested information to the union that involved medical
confidentiality and the applicability of the Privacy Act.
DeMaio's generalizations applied as equally to the hear-
ing as at the bargaining table. "To bargain intelligently"
are buzz words. His responses that he did not know how
the Union was going to use the information until they
got it (the information) speaks for itself. It is meaningless
and without substance. As of .March 26, 1982, when the
decision to relocate the work to Sioux Falls was commu-
nicated to DeMaio, he was still insisting upon receiving
nonexistent "studies°i and information which he could
not, or would not demonstrate as relevant.'
When there is any conflict in the testimony of DeMaio
and Phillips, I fully credit Phillips who testified precise-
ly, unequivocally, and unambiguously. By way of con-
trast, DeMaio, who destroyed his notes of the bargaining
sessions, was evasive and clearly bent on making his
case. I vividly recall the inordinate delays between ques-
tions and answers. Based on my observations he would
not hesitate to contrive and I therefore discredit him.
Accordingly, I recommend that the allegations that
Respondent relocated bargaining unit work in derogation
and repudiation of its bargaining obligations under the
Act be dismissed.
The Arbitration Award Relative to the Assignment
of Overtime
After the arbitrator's decision issued there was a tor-
rent of letters between the Union, Respondent and the
arbitrator, giving rise to a complete muddle as to just
what the arbitrator had decided. DeMaio testified that
the award was so confusing to him he could not under-
stand a single paragraph in it. The Respondent main-
tained that it would follow the award pursuant to its in-
terpretation of same. The arbitrator stated in one of his
many letters that his letter of clarification should "not be
construed as a reversal, modification or being at odds
with the arbitration award."
Respondent did agree to an expedited arbitration to
allay the confusion but the Union was not willing to do
this. After reading the exchange of documents between
the parties I 'can readily understand why no one really
understood what the arbitrator had concluded. I., there-
fore would not hold the Respondent liable under this set
of circumstances. What this issue boils down to is Re-
spondent choosing to follow the arbitrator's original
award and the Union choosing to pursue subsequent per-
ceived modifications. Moreover, the Board has always
encouraged the utilization of the collective-bargaining
process. An error in contract interpretations does not
automatically violate Board law. At most there is a pos-
sible violation of the collective-bargaining agreement, but
in view of the history of bargaining, which is of some
duration and in good faith, I recommend dismissal of this
allegation. See Bemis Bros. Bag Co., 143 NLRB 1311
(1963).
Refusal to Process Grievances
The parties negotiated a contract speficially providing
what the result would be when the Union does not re-
ceive a written answer within 10 days after a third-step
meeting . The solution is that this may cause the griev-
ance to be moved to step 4 at the discretion of the
Union. What the Union and the General Counsel are
seeking is police action over the collective-bargaining
agreement by the Board. In my view, the proper forum
would be for the Union to bring an action under Section
301 of the Act.
The evidence establishes that the parties were actively
engaged in meetings to resolve a large number of griev-
ances, and as a matter of fact Respondent did give writ-
ten replies in many instances and there were grievances
that were disposed of. In my opinion the parties have
agreed to a means for remedying the problem, and they
should be left to their own devices without Board intru-
sion. I therefore will recommend that this allegation be
dismissed.
Failure to Honor the Union's Security Clause
The language in the union-security clause specifically
uses the word "may." If the parties had intended that
discharge was dictated they would have employed obli-
988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gative rather than permissive language. The word "may"
simply does not occasion a mandate.
If the General Counsel and the Union are seeking to
enforce the arbitrator's award they are in the wrong
forum. Noncompliance with an arbitrator's award is not
a matter for the Board. Thus, the parties should not be
permitted to invoke intervention by the Board. The par-
ties, would best be served if left to proceed to the usual
conclusion after having resorted to arbitration to seek ju-
dicial enforcement. See Malrite of Wisconsin, 198 NLRB
241 (1972).
The consequences in discharging employees because of
their failure to conform to_ a union-security clause has
been addressed before. Thus an administrative law judge
stated with Board approval in Jack Watkins, G.M.C., 203
NLRB 632, 635 (1973), "Moreover, the Board has for.,
many years had a policy that the union security provi-
sions relied upon in justification for discharge must be
expressed in clear and unmistakeable language."- The ad
ministrative law judge continues that this is not asking
too much because of the extreme consequences that, can
legally be imposed on a nonconforming employee.
Moreover, the Union has a fiduciary obligation to the
employees. See Western, Publishing Co., 263 NLRB 110
(1982)
The General Counsel has not proved by substantial
evidence that the Union has met its fiduciary obligations.'
The union secretary who allegedly mailed the delinquent
notices to employees was never called as a witness, nor
were any employees' produced. It appears in some in-
stances that the' Union' was trying to collect dues retroac-
tively, thus ignoring the grace period. There is also evi-
dence of improper notification to employees and errors
by the Union in the computation of arrearages.
Based on the foregoing it is my recommendation that
this, allegation of the complaint be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a'labor organization within the mean-
ing of Section 2(5) of the Act.
3. By transferring the work from the international and
commercial lines to Sioux Falls, Respondent did not vio-
late Section 8(a)(l), (3), and (5)` and Section 8(d) of the
Act.
4. Respondent did not fail to respond, or unduly delay
responses to grievances in violation of Section 8(a)(1)
and (5) and Section 8(d) of the Act.,
5. Respondent did not refuse to comply with an arbi-
tration award concerning the assignment of overtime in
violation of Section 8(a)(1) and (5) and Section 8(d) of
the Act.
6. Respondent, did not refuse to provide available in-
formation to the Union in violation of Section 8(a)(1) and
(5) and Section,8(d) of the Act.
7. By failing to discharge employees pursuant to the
union-security clause, Respondent did not violate Section
8(a)(1) and (5) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
s
ORDER
It is recommended that the complaint be dismissed, in
its entirety.
5 If this Order is enforced, by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."