Local 445, Electrical Workers

National Labor Relations Board - Board Decisions

Mar 5, 1973

202 N.L.R.B. 183 (N.L.R.B. 1973)

LOCAL 445, ELECTRICAL WORKERS 183
Local 445, International Union of Electrical, Radio
and Machine Workers, AFL-CIO and Sperry
Systems Management Division , Sperry Rand Cor-
poration . Case 29-CB-1019
March 5, 1973
DECISION AND ORDER
On July 12, 1972, Administrative Law Judge 1 Paul
Bisgyer issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel and Respon-
dent filed exceptions and supporting briefs. The
Respondent filed a brief in support of the Decision.
On September 11, 1972, oral argument was heard.
The Board has considered the record and the
attached Decision in light of the exceptions, briefs,
and oral argument and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge to the extent consistent herewith and
to adopt his recommended Order.
Respondent Union is the exclusive bargaining
representative in a unit of technical employees in the
metropolitan area of New York City employed by
Sperry Systems Management Division, Sperry Rand
Corporation (hereinafter called the Company).
Article I of the collective-bargaining agreement in
effect at all times relevant hereto reads as follows:
This Agreement shall apply to all plants now
operated by the Employer, its successors or
assigns, wherever situated. In the event any
nonsupervisory (except engineers) employees
within the IUE bargaining units of the Company
are transferred to a location other than a plant
now operated by the Company, any additional
personnel hired at such location to work with
such transferred employees in bargaining unit
jobs, as hereinafter described, shall be covered by
the terms of this Agreement.
In the spring of 1970, while this agreement was in
effect, the Company commenced operations in a new
facility in Vallejo, California, where it employed,
among others, three individuals who performed the
same type of drafting work as that done by technical
employees in the New York bargaining unit. No
technical employee in the contract unit, however,
was transferred to the Vallejo facility. The Union
became aware that drafting work was being per-
formed at Vallejo and from its own investigation
concluded that certain employees at Vallejo were
classified under different job titles than New York
draftsmen and that they were being paid lower wage
rates and other economic benefits than the New
York employees for performing essentially the same
work. The Union also learned that the Company was
contemplating some further expansion of the Vallejo
operation.
The Respondent Union thereupon filed a grievance
under the New York contract claiming a violation of
the above-quoted article I. The Company denied the
grievance on the ground that no nonsupervisory
employees within the New York unit had been
transferred to Vallejo and thus asserted that the
clause had no application to the Vallejo facility. The
grievance was subsequently submitted to arbitration.
The arbitrator held that there was insufficient
evidence to warrant a finding that the Vallejo facility
was an accretion to the New York unit and that it
was thus improper to direct the Company to apply
the New York contract to the technical personnel at
Vallejo, since such a ruling would require the
Company to commit an unfair labor practice. On the
other hand, he concluded that it was his obligation to
require compliance with article I of the New York
contract "to the extent that it would be legal to apply
the contract terms agreed upon by the parties." He
therefore held that article I should be applied
to the extent that the technical personnel per-
forming drafting work at the Vallejo plant shall
be governed by the same wages and other terms
of employment as set forth in the Local 445
Agreement (but excluding any union shop or
representation clauses), retroactive to June 5,
1970.
Thereafter, Respondent attempted to secure com-
pliance with the award, explaining that under its view
of the award, the Company was not precluded from
granting Vallejo employees better wages or terms of
employment than those applicable in the New York
unit, but that it would object to the Company's
paying employees in Vallejo lower rates and benefits
than those applicable in New York. The Respondent
explained that the purpose of such union objections
was to preserve job opportunities in the New York
unit and to discourage the hiring of new employees
at lower rates in Vallejo to perform the same type of
work being done in New York.
At about this same time, Respondent attempted to
organize the clerical and drafting employees. The
attempt failed when a majority of the Vallejo
employees voted against union representation in an
NLRB election. At various times, the Union de-
manded that certain specific action should be taken
in compliance with the Respondent's understanding
of the arbitration award, including requesting that a
Vallejo technician be reimbursed for certain tuition
expenses in the manner specified by the New York
contract, that certain Vallejo employees be reclassi-
I The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
202 NLRB No. 18
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fied -to conform to the New York contract classifica-
tions and their pay scales be adjusted accordingly,
and that certain employees laid off at Vallejo be
recalled (Respondent asserting that they had been
improperly laid off under the contract ). Certain other
request were also made which , in general, would
have required the Company to conform Vallejo
wages, severance , vacation , sick pay, pension con-
tributions , overtime payments , and the like, to the
New York agreement 's terms. Respondent ultimately
filed a comprehensive grievance relating to these
matters and requested arbitration when the grievance
was denied.
The Company denied all of the demands and
grievances of the Union relating to the Vallejo
employees and also filed a legal proceeding in the
New York courts protesting the arbitration award
and seeking to have it modified . It met with at least
initial success in this proceeding , in that the trial
court held that the arbitrator had both exceeded the
scope of his authority and had directed a remedy
which would cause the Company to violate the
National Labor Relations Act. The trial court's
decision is now on appeal and any decision of the
appellate court has been stayed pending the outcome
of the instant proceeding before this Board.
Meanwhile , Respondent has continued to pursue
its demands that the Company comply with the
arbitration award and also filed the grievance above
mentioned which it has sought to arbitrate. The
Company has denied all of Respondent's requests
and grievances arising out of the arbitration award
and has filed the charge herein , claiming that
Respondent ' s demands with respect to Vallejo
employees violated Section 8(b)(3) of our Act.
General Counsel asserts that the Union 's attempts
to secure compliance with the arbitration award,
including its filing of grievances relating to Vallejo
employees, violate Section 8(b)(3) of the Act.
General Counsel further contends that the Respon-
dent ' s persistent demands that the Company honor
the award and the Respondent's submission of the
Company's noncompliance to the contractual griev-
ance arbitration procedures constituted attempts to
secure recognition and to bargain as the exclusive
representative of the Vallejo technicians in an
enlarged inappropriate unit resulting from the
addition of those employees to the previously
certified contract unit . General Counsel has not
specifically attacked the validity of the arbitration
award but the Company argues that the award itself
is in irreconcilable conflict with our Act. In support
of their position , both the General Counsel and the
Company rely principally on Smith Steel Workers
Directly Affiliated Labor Union 19806, AFL-CIO
(A.O. Smith Corporation), 174 NLRB 235,enfd . impart
sub nom. Smith Steel Workers v. A. 0. Smith, 420
F.2d 1 (C.A. 7).
Respondent contends that its actions were not
intended to achieve unlawful recognition, but rather
were taken in furtherance of Respondent's legitimate
interests to preserve job opportunities for New York
employees by preventing the Company from estab-
lishing plants with inferior terms and conditions of
employment to which drafting work could be
diverted from New York.
The Administrative Law Judge recommended that
the complaint be dismissed, finding that the charge
of unlawful refusal to bargain was unsubstantiated
by the evidence. He held that Respondent had
merely pursued peaceful and orderly means to
prevent what it reasonably regarded as company
action which could result in a diversion of unit work
from a New York plant to the lower paying Vallejo
facility. He found Respondent's interests in such
matters legitimate in that it related to the preserva-
tion of unit work. He further found that the
arbitration award was not repugnant to the policies
of the Act in that it neither required nor permitted
the Company to recognize Respondent in the Vallejo
unit and required the Company only to do what it
legally could do-i.e., extend to unrepresented
employees the same wage rates and other benefits
which a labor organization had obtained for the
employees it represented.
He distinguished the Smith Steel Workers case,
noting that in that case the Union had openly
insisted on recognition rights in a unit in which this
Board had found that another labor organization
had recognition rights. Since he did not here find any
recognitional objectives in the Union's action, he
found the Smith case inapplicable.
We agree with the result reached by the Adminis-
trative Law Judge, essentially for the reasons stated
in his opinion. We note particularly that Respondent
took no action here which we would regard as
necessarily disruptive of the bargaining relationship
in the New York unit. This is not a case in which
negotiations in the New York unit were impeded by
either insistence during New York negotiations to the
point of impasse that the Company take action
relating to Vallejo employees nor by taking of
economic action in support of any such demands.
Nor are we willing to construe an arbitration award
which, by its specific terms, refuses to confer any
representational rights with respect to Vallejo em-
ployees upon Respondent as having a contrary
meaning or necessary implication. We do not pass
upon whether that award was a correct interpretation
of the parties' New York agreement nor do we pass
upon the issue of whether the award may have
exceeded the scope of the issues submitted to him.
LOCAL 445, ELECTRICAL WORKERS 185
We must, however, assume, unless and until a court
of last resort should decide to the contrary, that the
arbitrator was correct in finding, in essence, that the
New York agreement constituted a voluntary agree-
ment between the parties that employees may not be
engaged by the Company at non-New York locations
to perform the same duties as those performed by
New York employees at lesser pay rates and other
economic benefits. We cannot say that such a
voluntary agreement either contravenes basic statu-
tory policy nor that it necessarily confers representa-
tional rights for non-New York employees upon
Respondent. If such an agreement is lawful and the
arbitrator is correct in holding that the parties have
so agreed, we can perceive no violation of Section
8(b)(3) in the Union's attempts to secure compliance
with such an agreement through peaceful and orderly
means.
Certain of the Union's actions, including particu-
larly its demands with respect to the layoff of three
employees at the Vallejo facility, may well appear at
first glance at least to have representational over-
tones.2 We are unwilling to say that the Union's
attempt to discuss, or to have arbitrated, the issue of
whether its objections to the layoff relate to econom-
ic benefits or are representational, and thus preclud-
ed from coverage by the award, rises to the level of a
violation of Section 8(b)(3). Here again we note that
there is no evidence that the Union's attempt to
resolve the application of the award to Respondent's
claims as to the layoff through peaceful and orderly
means would have disrupted the ongoing bargaining
relationship in the New York unit. Nor was any
economic action taken or threatened in support of
this union demand which might have had an adverse
effect upon the New York bargaining relationship. In
fact, it would seem that any contrary ruling by this
Board would improperly interfere with Respondent's
right to seek an orderly and peaceful determination
of its contractual rights.
Accordingly, in agreement with the Administrative
Law Judge, we will dismiss the complaint in its
entirety.
MEMBERS KENNEDY AND PENELLO, dissenting:
Unlike our colleagues, we find that Respondent
violated Section 8(b)(3) of the Act by using the
collective-bargaining process established for a unit of
New York employees to determine the wages, hours,
and working conditions of employees in California,
whom it concedely did not represent.
The Respondent here claimed that its bargaining
position on the application of the New York contract
was justified because (1) an arbitrator determined
that all terms of the New York contract, excluding
the union shop and other representational terms,
should be applied to the California employees; and
(2) its objective was to preserve work opportunities
for the employees in New York. We find no merit in
these defenses for the following reasons.
The arbitrator's award was repugnant to the
purposes and policies of the Act3 because it was
contrary to established Board and court decisions.`
According to well-recognized Board principles, a
contract cannot lawfully be applied to employees
outside the established unit unless they constitute an
accretion to that unit.5 The award here fails to
accord with that principle, even though the union
shop and other recognitional terms were excised. In
International Ladies' Garment Workers' Union,
AFL-CIO [Bernhard-Altmann Texas Corp.] v.
N.L.R.B.,6 the Supreme Court held that a contract
that resulted from bargaining with a minority
representative was completely void and could not be
applied even as a members-only contract. An
employer cannot bargain collectively with a nonrep-
resentative union as though it were an exclusive
representative. The effect of this award is to require
the Company to bargain collectively with the Union
concerning the wages, hours, and working conditions
of the California employees and to allow the
Respondent to administer the application of the
contract on behalf of the California employees. In
short, it requires the Company to deal with the
Respondent as though it were the exclusive repre-
sentative of these employees, even though it does not
require formal recognition. This result seriously
infringes on the Section 7 rights of the California
employees and is contrary to the purposes and
policies of the Act.
The Respondent's contention that its objective was
to preserve job opportunities for the New York
employees is not established by the evidence. The
evidence shows that no work was diverted from New
York to California. The Respondent's demands were
not limited to those economic features of the
contract which are reasonably related to a work
preservation objective. In this regard we note, that
the second grievance filed by Respondent reads as
follows:
The Employer has violated Article I of the
Agreement as ruled upon by the Arbitrator
Benjamin Roberts.
2 We do not deem it necessary to reach the question of whether or not 4 Radio Television Technical School, Inc 1/a Ryder Technical Institute, 199
the Administrative Law Judge was correct in discounting the arguably NLRB No 85
representational nature of this demand as being merely an attempt to win 5 Super Markets General Corporation d/b/a Shop-Rite, 170 NLRB 446
employee support in the Vallejo election 6 366 U S 731
3 Cf Spielberg Manufacturing Company, 112 NLRB 1080
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union demands that the Employer comply
with the arbitrator's award, recall the drafting
personnel laid off at Vallejo, California and make
them whole.?
This second grievance was patently unrelated to any
work preservation objective with respect to the New
York unit. It is only relevant to establish conclusively
that the work preservation argument was a smoke-
screen to conceal the Respondent's true objective-
recognition.
Although we are persuaded that the objective of
the Respondent's demands was to secure recognition,
we would find a violation of Section 8(b)(3) even if
the Respondent's sole objective was work preserva-
tion. Motivation is not controlling because the rights
sought to be exercised are representational in nature
and reserved for the exclusive representative of the
California employees, when and if such a representa-
tive is selected. Absent the status of exclusive
representative of these employees, the Respondent
has no right to participate in the determination of
their wages, hours, and working conditions. The fact
that these employees have chosen not to be repre-
sented by the Respondent makes it clear that the
Employer could not lawfully bargain with the
Respondent about their wages, hours, and other
terms and conditions of employment. Even though
an employer may voluntarily accord unrepresented
employees the same benefits as represented employ-
ees, an employer may not bind itself to do so by
agreement with a union.8
In essence, the Respondent insistently used its
collective-bargaining status as the representative of
the New York unit employees to make demands
which the Company could honor without violating
Section 8(a)(2) of the Act. Unlike our colleagues, we
will not presume that these demands had no impact
on the bargaining relationship established for the
New York unit simply because there was no extrinsic
evidence of damage. Insisting on unlawful demands
for agreement through collective bargaining is
inherently destructive of that process. Such an abuse
of the collective-bargaining process is wholly incon-
sistent with the obligations imposed upon unions by
Section 8(b)(3). The Board so recognized in Smith
Steel Workers,9 a case we view as indistinguishable
from that before us here. In Smith Steel Workers, the
Board found that a union's insistent demands for the
application of a contract to employees previously
determined by the Board to be outside the unit
violated Section 8(b)(3). Here, some of Respondent's
demands followed the Board's certification of the
results of an election in California, in which the
Board determined that those employees composed a
separate appropriate unit and chose not to be
represented by Respondent. Plainly, therefore, the
Respondent, in pressing its demands thereafter, was
acting in direct contradiction of a Board determina-
tion. The fact that no other union was involved in
this case cannot serve as a distinction. Section 7
guarantees employees the right to refrain from union
representation. This right should be given no less
weight than the corresponding right to select union
representation. For all these reasons, we cannot
escape the conclusion that Respondent violated
-Section 8(b)(3) as alleged.
I G C Exh 13.
8 Cf, United Mine Workers ofAmerica v Pennington, 381 U S 657, Dolly
Madison Industries, Inc, Richmond Dairy Division, 182 NLRB 1037
9 174 NLRB 235, enfd. as modified 420 F 2d I (C A 7, 1969).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL BISGYER , Trial Examiner: This proceeding, with all
parties represented, was heard on March 6, 1972, in
Brooklyn, New York, on the complaint of the General
Counsel issued on December 27, 1971,i and the answer of
Local 445, International Union of Electrical, Radio and
Machine Workers, AFL-CIO, herein called the Respon-
dent or Union. The issue litigated is whether the Respon-
dent, in violation of Section 8(b)(3) of the National Labor
Relations Act, as amended,2 refused to bargain collectively
with Sperry Systems Management Division, Sperry Rand
Corporation, herein called the Company, in an appropriate
unit by insisting that the Company honor an arbitration
award and apply their bargaining contract covering the
technical employees at the Company's Metropolitan New
York City plants, except for the union shop and represen-
tation provisions, to certain unrepresented technical em-
ployees at the Company's Vallejo, California, facility. At
the close of the hearing, the General Counsel and the
Respondent made a short oral presentation of their
positions. Thereafter, all the parties filed briefs.
Upon the entire record, and from my observation of the
demeanor of the witnesses, and with due consideration
being given to the arguments advanced by the parties, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY
The Company, a Delaware corporation with its principal
office and place of business in Great Neck, New York,
operates plants in different States in the United States
where it is engaged, for national defense and civilian
purposes, in the research, development, manufacture, sales,
distribution, and servicing of electronic systems and
instruments, navigation devices, and related products. In
I The complaint is based on original and amended charges filed on
August 2 and 26, 1971, respectively, copies of which were duly served on the
Respondent by registered mail on the respective filing dates.
2 Sec. 8(b)(3) makes it an unfair labor practice for a labor organization or
its agents "to refuse to bargain collectively with an employer, provided it is
the representative of his employees" designated by a majonty of them in an
appropriate unit
LOCAL 445, ELECTRICAL WORKERS 187
the regular course of its business, the Company annually
purchases goods and materials valued in excess of $1
million which are shipped in interstate commerce directly
to its various facilities. It also annually ships from these
plants finished products valued in excess of $1 million
directly to destinations in States outside the place of
manufacture.
It is admitted, and I find, that the Company is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
If. THE LABOR ORGANIZATION INVOLVED
There is no question, and I find, that the Respondent is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
In essence , the Respondent is charged with unlawfully
refusing to bargain with the Company because, in
accordance with an arbitrator 's award , it insisted that the
Company extend the wages, benefits, and other nonrecog-
nitional provisions of their contract covering a Metropoli-
tan New York City technical unit to certain unrepresented
technical employees in Vallejo, California, who performed
the same type of work done by drafting employees in the
contract unit . As will be detailed below , the Respondent's
alleged unlawful conduct consisted of oral and written
demands, both general and specific in nature, made
subsequent to the arbitration award , culminating in the
filing of a new grievance and the institution of a second
arbitration proceeding . It is the theory of the complaint
that the Respondent, by its actions , was actually seeking to
add the Vallejo employees in question to the contract unit
and thereby to bargain for them in an inappropriate unit in
violation of Section 8(b)(3) of the Act.
B. The Evidence
1. Bargaining history; the Vallejo, California,
operation; the filing of a grievance
Since its certification on June 6, 1962, the Respondent
has been the exclusive bargaining representative of the
Company's employees in a so-called Metropolitan New
York City technical unit,3 pursuant to successive agree-
ments. The last agreement became effective on June 5,
1970, for a period expiring on August 15, 1973. Involved in
the events discussed below is article I of the current
agreement4 which provides:
This Agreement shall apply to all plants now
operated by the Employer, its successors or assigns,
wherever situated. In the event any nonsupervisory
(except engineers) employees within the IUE bargain-
ing units of the Company are transferred to a location
other than a plant now operated by the Company, any
additional personnel hired at such location to work
with such transferred employees in bargaining unit
jobs, as hereinafter described, shall be covered by the
terms of this Agreement.
In the spring of 1970, the Company commenced
operations in a new facility in Vallejo, California, where it
employed, among others, three individuals who performed
the same type of drafting work as that done by technical
employees at the Company's Great Neck plants belonging
to the Metropolitan New York City unit. However, no
technical employee in the contract unit was transferred to
the Vallejo facility so that concededly no rights accrued to
the Respondent by reason of the second sentence of article
1.5 In early fall, the Union became aware that drafting
work was being performed at the Vallejo facility. Upon
investigating the matter, the Union learned that the three
employees were not given conventional draftsman titles
but that one was classified senior technical assistant and
the other two were classified as technical assistants. It was
further ascertained that these technicians were paid less
than draftsmen in comparable classifications in the
Metropolitan New York City technical unit; that they were
not receiving the same wages and other economic benefits;
and that the Company was contemplating an expansion of
the Vallejo operation.
Fearing that this situation could have an adverse impact
on the draftsmen's job opportunities at the Great Neck
plants, the Respondent on November 27, 1970, filed with
the Company a grievance (No. 14-70) pursuant to the
terms of the parties' current agreement .6 The grievance
charged that
The Company has violated Article I of the Labor
Agreement by its failure to apply the Agreement to the
3 Case 2-RM-l 199 At that time and until 1967 the employer was known
as Sperry Gyroscope Company, Division of Sperry Rand Corporation in
1967, the operation became a function of Sperry Systems Management
Division , Sperry Rand Corporation Specifically, the certified unit consists
of-
All draftsmen , engineering aides , industrial illustrators , materials lab
assistants I and ii, materials test coordinators, parts catalog writers I
and II, senior draftsmen , senior draftsmen trainees , senior industrial
illustrators, technical illustrators, 1, 11, 111 and IV, development
technicians and engineering writers I and 11 employed at the
Company's plants in metropolitan New York City including Nassau
and Suffolk Counties, on temporary assignments wherever located
from said plants, and on temporary or permanent assignments from
said plants to customer or vendor installations , wherever located,
exclusive of all guards, watchmen , professional employees and
supervisors as defined in the Act and all other employees not employed
in the included classifications
The certification was issued in the name of Engineers Association,
International Union of Electrical, Radio and Machine Workers, Local 445,
AFL-CIO
4 This provision first appeared in the parties ' contract executed in June
1964 and was continued in their subsequent contracts Moreover, this
provision has similarly been incorporated in almost identical language in
the Company's contracts with sister locals of the Respondent covering other
bargaining units
5 The Company, however, assigned from the Great Neck plant to the
Vallejo facility several engineers who were represented by the Engineers
Union, a sister local of the Respondent, under a separate contract which
contained substantially the same article I As a result, the Company, in
accordance with that provision, recognized the Engineers Union as the
bargaining representative of the assigned and newly hired engineers at
Vallejo and applied the terms of their New York contract to all of these
employees
6 Art 26 provides for a formal two-step grievance procedure culminating
in binding arbitration for the settlement of "[a III disputes, differences, or
grievances that may arise between the Union and the Employer, or between
the Employer and the Union
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
technical personnel doing drafting work at Vallejo,
California. The Union demands that the Agreement be
applied to them and that they be made whole.
Thereafter, several meetings were held between the
Respondent and the Company at which the Company, in
disagreement with the Union, took the position that article
I was inapplicable to the Vallejo technicians apparently for
the reason that no Metropolitan New York City technical
unit employees had been transferred to that facility.
Accordingly, on December 11, 1970, the Company
formally denied the grievance.
2. The arbitration proceeding and award
Upon receipt of the Company's rejection of its grievance,
the Respondent promptly proceeded to arbitration in
conformity with contractual procedures.? On February 22,
1971,8 a hearing was held before Arbitrator Benjamin C.
Roberts. The specific question presented to him was
"[w]hether the technical personnel performing drafting
work at Vallejo, California, are under the coverage of the
collective bargaining agreement with Local 445." On April
19, the arbitrator issued a 22-page opinion and award in
which he discussed the genesis of the first sentence in
article 1 quoted above,9 which concededly is the only part
here relevant; the bargaining history; Board law respecting
the accretion of new plants to established bargaining units;
and the many contentions advanced by the parties. The
arbitrator interpreted article I as requiring the application
of the current contract to the Vallejo facility as it was a
plant in operation on June 5, 1970, the effective date of the
contract. However, he determined that, since there was
insufficient evidence to warrant a finding that Vallejo was
an accretion to the Metropolitan New York City technical
unit within the meaning of Board decisions, it would be
beyond his duty and responsibilities to direct the Company
to apply the entire contract to the technical personnel who
performed drafting work at the Vallejo plant and thereby
require the Company to commit an unfair labor practice.
On the other hand, he concluded that it was his
obligation . . . to require compliance to the extent that
it would be legal to apply the contract terms agreed
upon by the parties, and particularly since there is such
identity in the work being done in Vallejo and at .. .
[the Great Neck plants]. Consequently, as the alterna-
tive to the enforcement of the Agreement in whole, the
Company should be required to enforce Article I to the
extent that the technical personnel performing drafting
work at the Vallejo plant shall be governed by the same
wages and other terms of employment as set forth in
the Local 445 Agreement (but excluding any Union
shop or representation clauses), retroactive to June 5,
1970.
Accordingly, the arbitrator issued the following
7 Insofar as pertinent, art 26(F), entitled "Arbitration," reads, as
follows
I all disputes, differences and grievances which may arise out of
this Agreement including claims arising out of breaches or threatened
breaches or violations or threatened violations of this Agreement and
which shall not have been satisfactorily settled within two weeks
following the procedure herein set forth shall, at the request of either
party, be promptly submitted to arbitration Arbitration shall be the
AWARD
As a matter of law, the technical personnel performing
drafting work at the Company's plant at Vallejo,
California, are not under the coverage of the collective-
bargaining agreement with Local 445. However, they
shall be governed by the wages and other terms of
employment contained in the Local 445 Agreement
(excluding the Union Shop and other representation
clauses) and retroactive to June 5, 1970.
3. The Respondent's unsuccessful efforts to secure
compliance with the award; its institution of
further grievance and arbitration proceedings
On May 3, the Respondent's president, Henry Zylla,
notified the Company that the Union expected it to apply
the arbitrator's award to all of its plants in existence on
June 5, 1970. On May 5, the Company's labor relations
supervisor, Joseph Schmidt, simply responded that the
award, by its terms, applied only to the Vallejo plant. In
the ensuing weeks, Zylla had several meetings with Gus
Kolmel, the Company's labor relations manager, and
Schmidt in an effort to secure compliance with the award.
As indicated above, this required that the wages and other
terms and conditions of employment of the Vallejo
technicians engaged in drafting work at least be equalized
with those prescribed in the New York contract for
drafting employees and prevailing in the Great Neck
plants. The Company was also informed that the award,
however, did not preclude the Vallejo employees from
seeking or being given better terms of employment. In one
such meeting with Kolmel, Zylla explained that, in
requesting the Company to implement the award, the
Union was not undertaking to represent the Vallejo
technicians but rather was acting on behalf of the Great
Neck draftsmen covered by the New York contract. He
testified, in effect, that the underlying motivation for the
Union's actions was to preserve job opportunities in the
Great Neck plants and to discourage the hiring of new
employees in Vallejo to perform the same type of work
being done in Great Neck. On this occasion, Zylla also
requested reimbursement of tuition expenses incurred by a
Vallejo technician (Judith Eskew), as required by the New
York contract and the award.iO Kolmel stated that he
would look into the matter and asked Zylla to send him the
receipts.
On May 27, Zylla wrote Kolmel a letter in which he
enclosed the previously requested receipts of tuition
expenses. In addition, the letter reminded Kolmel that
[on] a number of occasions the union has attempted
to resolve the differences which exist as a result of the
arbitrator's award in Grievance No. 14-70. We are
particularly disturbed by the company's delay in
carrying out the arbitrator's decision. As I pointed out
sole and exclusive remedy available to the parties hereto The
decision of the arbitrator shall be final and binding upon all parties and
shall be complied with promptly
8 Unless otherwise indicated, all dates refer to 1971
9 1 e , "This Agreement shall apply to all plants now operated by the
Employer,-wherever situated "
10 According to Zylla's undisputed testimony, unrepresented employees
also enjoyed this benefit where the courses related to their work
LOCAL 445, ELECTRICAL WORKERS 189
at one of our meetings, the union position is that all
three of the drafting people in California should have
been properly classified as design draftsmen. Their
back pay should be based on that classification.
In our opinion the company should prepare a
separate itemized accounting for each of the three
people involved in this arbitration. This accounting
should be forwarded to the union as soon as possible so
that we may review it and determine whether or not the
company has fully complied with the arbitrator's
award.
On or about July 26, the subject of the arbitration award
fortuitously came up during the course of a union-
management meeting which was called to consider
unrelated problems. At one point, the Company's director
of industrial relations, Gerald Weiner, remarked to Zylla
that the Vallejo technical employees had "quite a deal;
these people can't get less, according-[to the Union], but
they can get more. That's a great deal." Zylla agreed that
that was the effect of the award.
Failing to persuade the Company to comply with the
arbitrator's award, the Respondent on July 26 filed with
the Company another grievance, alleging as follows:
The Employer has violated Article I of the Agree-
ment as ruled upon by Arbitrator Benjamin Roberts.
The Union demands that the Employer comply with
the arbitrator's award, recall the drafting personnel laid
off at Vallejo, California, and make them whole.
The Company responded by filing on August 2 the unfair
labor practice charge which initiated the present proceed-
ings,
Thereafter, pursuant to prior arrangement, Zylla and
Russ Mantione, the chairman of the Respondent's griev-
ance committee, conferred with Labor Relations Supervi-
sor Schmidt on August 11 concerning the above grievance.
In the 10 minutes or so that the meeting lasted, Zylla
complained that the Company was not honoring the
award, as their New York contract obligated it to do, by
applying that contract to the Vallejo technical employees
here involved. He then proceeded to list the Union's
demands, compliance with which he regarded was required
by the award. These related to wages; severance, vacation
and sick pay; pension contributions; tuition refund;
overtime payments; the participation in a merit kitty; the
recall of employees improperly laid off with backpay; the
reimbursement for medical expenses incurred by such
individuals; and the reclassification of drafting employees
wrongly classified. In addition, Zylla asked for a full
accounting to determine whether the Vallejo employees
received the benefits they were entitled to. The meeting
closed with Zylla's request for an answer to the grievance
within the time prescribed in the contract. There is a
conflict in testimony given by Schmidt and Zylla as to
11 It appears that at this time two technical employees whose job entailed
drafting work were allegedly in layoff status
12 The Respondent filed timely objections, alleging the discriminatory
discharge of two draftsmen and an engineering clerk and other misconduct
The allegations also became the subject of an unfair labor practice charge
filed by the Respondent on August 16 (Case 20-CA-6958)(G C 12)
whether at this meeting Zylla expressly disavowed that the
Union claimed to represent the Vallejo drafting employees.
As Schmidt conceded that Zylla had made such a
statement on another occasion, I find it unnecessary to
resolve this conflict.
By letter dated August 25, Schmidt rejected the griev-
ance. Referring to the Company's application to the State
Supreme Court to modify the award, discussed below, and
to its previously filed unfair labor practice charge, the letter
stated that compliance with the Union's grievance requests
"would be unlawful under ... [the] Act" and that the
Company accordingly "decline[d] to follow the course
requested by [its] grievance." On August 27, the Union
responded that it would not accept the Company's answer
and proposed arbitration, as provided for in the contract,
to resolve the compliance problem, listing the names of
three individuals from which to select an arbitrator. In
reply, Schmidt wrote to the Respondent that it appeared to
be
... pointless to present questions to another
arbitrator which have not only already been arbitrated
but are currently pending before both the New York
court and the Board. However, subject to our right to
argue the non-arbitrability of this claim before the
arbitrator, we are, pursuant to our obligations under
the contract, by this letter indicating our rejection of-
the names suggested and submitting in place of them
the three arbitrators named below. We would point out,
in doing so, that we consider this request to arbitrate in
itself to be further evidence supporting the charge now
pending before the Board.
Thereafter, the Respondent and the Company agreed upon
an arbitrator and a hearing was scheduled for November
23. However, by mutual agreement of the parties, the
hearing was indefinitely postponed.
4. The representation proceeding; the State court
suit to modify the award
On May 10, a few weeks after the Roberts arbitration
award was rendered, the Respondent filed a representation
petition with the Board's Region 20 in San Francisco (Case
20-RC-10035), requesting an election in a residual unit of
draftsmen[[ and clerical employees at the Vallejo facility.
Pursuant to the Regional Director's Decision and Direc-
tion of Election, issued on July 8, an election was held on
August 5 which the Respondent lost by a vote of 2 to 0
with one ballot being challenged.12
During the pendency of the representation proceeding,
the Company filed on July 20 a petition in the New York
Supreme Court, New York County, to modify the Roberts
award by vacating the second sentence which directed the
Company to apply to the Vallejo drafting employees "the
wages and other terms of employment contained in the
[New York agreement ]-(excluding the Union shop and
Following investigation , the Regional Director, on September 14, dismissed
the charge On appeal, the dismissal was sustained by the General Counsel
Thereafter, on December 16, the Regional Director overruled the objections
in the representation proceeding and issued a Certification of Results of
Election
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other representation clauses) and retroactive to June 5,
1970." 13 In support of its petition, the Company argued
that this part of the award was not based on any issue
submitted to the arbitrator and, secondly, that it was in
excess of the arbitrator's power because it directed action
which would put the Company in violation of the Act. The
Respondent answered the petition, requesting confirmation
of the award in all respects. On November 2, the State
court handed down its decision, granting the Company's
petition on both grounds urged by the Company. Accord-
ingly, on December 2, the court entered judgment, striking
the second sentence from the award and denying the
Respondent's cross-motion to confirm the award without
modification. An appeal was thereafter taken to the
Appellate Division of the Supreme Court where the matter
is now pending until the final disposition of the unfair
labor practice charge by the Board.14
C. Concluding Findings
Although deliberately refraining from attacking the
validity of the arbitration award, the General Counsel
contends that the Respondent's persistent demands that
the Company honor the award and apply their current
New York contract to the three technical employees who
performed drafting work at the Vallejo, California, plant in
a manner exceeding the requirements of the award, and the
Respondent's submission of the Company's noncompli-
ance to the contractual grievance-arbitration procedures
constituted attempts to secure recognition and to bargain
as the exclusive representative of the Vallejo technicians in
an enlarged inappropriate unit resulting from the addition
of those employees to the previously certified, contract
unit Such conduct, the General Counsel urges, amounts to
a refusal to bargain in an appropriate unit in violation of
Section 8(b)(3) of the Act. The Company reaches the same
conclusion except that, in sharp disagreement with the
General Counsel, it argues that the award itself is in
irreconciliable conflict with the Act and that therefore the
Respondent's efforts to secure compliance were in breach
of its statutory bargaining obligation, even though its
demands were sanctioned by the award. In support of their
positions, both the General Counsel and the Company rely
principally on Smith Steel Workers,15 to be later discussed.
Denying that its efforts to enforce the award violated its
bargaining duty, the Respondent maintains that the award
does not contravene the Act and is therefore entitled to
deference by the Board. Moreover, it argues that its actions
were not intended to achieve unlawful recognition as the
bargaining representative of the Vallejo technical employ-
ees but rather were taken in furtherance of the Respon-
13 The Sperry Division of the Sperry Rand Corporation v Local 445,
International Union of Electrical, Radio and Machine Workers, AFL-CIO,
Index No 15910/71 Not challenged was the validity of the first sentence of
the award which stated that, "[a ]s a matter of law, the technical personnel
performing drafting work at the Company's plant at Vallejo, California. are
not under the coverage of the collective bargaining agreement with Local
445 "
14 It appears from the Company's brief that the appellate division so
ruled on the Respondent's motion on March 23, 1972, following the hearing
in the present case
15 Smith Steel Workers (A 0 Smith), 174 NLRB 235, enfd in part sub
nom Smith Steel Workers v A 0 Smith, 420 F 2d I (C A 7)
dent's legitimate interests to preserve job opportunities for
the Great Neck drafting employees covered by the New
York contract by preventing the Company from establish-
ing plants with inferior terms and conditions of employ-
ment to which drafting work could be diverted. As
evidence of its lawful motivation, the Respondent asserts
that nothing in the award or its conduct precludes the
Vallejo technical employees from seeking, or the Respon-
dent from granting them, more favorable working condi-
tions.
On the basis of the record before me, I find the charge of
unlawful refusal to bargain unsubstantiated bythe evidence.
As related above, the Respondent initially invoked the
grievance-arbitration procedures prescribed in the parties'
New York collective-bargaining agreement to enforce a
claimed contractual right to bring certain Vallejo technical
employees who performed drafting work under the
contract's coverage. Following hearing, the arbitrator
issued his award, finding that Board law precluded him
from treating those employees as an accretion to the
certified contract unit, as the contract literally provided,
and that consequently they were not covered therein.
However, the arbitrator, after carefully considering the
evidence and arguments advanced by the parties, neverthe-
less sustained the Respondent's right to have the contractu-
al wages and other terms of employment, excluding the
union shop and other representation clauses , applied to
those employees, retroactively to June 5, 1970, the effective
date of the contract. In so ruling, the arbitrator expressly
denied the Respondent the status of bargaining agent of
the Vallejo technical employees which would normally
result from a plant accretion finding. When the Company
adamantly declined to comply with the award, the
Respondent again filed a grievance with the Company and
invoked arbitration which, by consent of the parties, never
reached hearing.
Certainly, the Respondent cannot be criticized for
resorting to the arbitral process the parties themselves had
agreed upon in their contract as the "sole and exclusive
remedy" for the resolution of "all [unsettled] disputes,
differences and grievances which may apse out of this
Agreement including claims arising out of breaches or
threatened breaches or violations or threatened violations
of this Agreement...." 16 Arbitration, in the authoritative
view, well serves the national labor policy of encouraging
the practice and procedure of collective bargaining of
which arbitration is a vital and integral part,17 and is
particularly suitable where, as here, the interpretation and
application of a bargaining contract are involved.18
Accordingly, the Board has held that in such cases it would
give hospitable acceptance to an award rendered in a fairly
16 Art 26(F)
17 Collyer Insulated Wire, a Gulf and Western Systems Co, 192 NLRB
No 150, International Harvester Company, 138 NLRB 923, enfd. sub nom
Ramsey v N LR B, 327 F.2d 784 (C A 7). cert. denied 377 U S. 1003,
Spielberg Manufacturing Company, 112 NLRB 1080
is Collyer, supra, Coppus Engineering Corporation, 195 NLRB No 113,
Combustion Engineering, Inc. 195 NLRB No 161, Great Coastal Express,
Inc, 196 NLRB No 129, Norfolk, Portsmouth Wholesale Beer Distributors
Association , 196 NLRB No 165 To be sure , the Board has the undeniable
authority to interpret contractual provisions where necessary to resolve
unfair labor practice issues N L R B v C & C Plywood Corporation, 385
U S 421
LOCAL 445, ELECTRICAL WORKERS 191
conducted arbitration proceeding and withhold its process-
es, unless it is "clearly repugnant to the purposes and
policies of the Act." 19 The critical questions then to be
determined here are whether the Roberts award is by its
terms, "clearly repugnant" under the Act because it
unlawfully confers upon the Respondent exclusive repre-
sentative status over the Vallejo employees in an enlarged
inappropriate unit 20 and whether the Respondent's efforts
to achieve compliance with the award, in effect, amounts
to an unlawful refusal to bargain within the meaning of
Section 8(b)(3) of the Act. No question is raised concerning
the arbitrator's impartiality or the fairness and regularity of
the arbitration proceeding.
As shown above, there is nothing in the arbitration
award which directs the Company to recognize the
Respondent as the exclusive representative of the Vallejo
technical employees as part of the certified contract unit.
Acknowledging controlling principles regarding plant
accretions to established bargaining units, the arbitrator, in
a well-reasoned opinion, specifically declined to include
the Vallejo technical employees in the contract unit.21
While the award provides for the application of the
nonrecognitional clauses of the contract to those employ-
ees, I am aware of no restriction in the Act prohibiting an
employer, not improperly motivated, from extending to his
unrepresented employees the same wage rates and other
benefits a labor organization obtained for the employees it
represents. Indeed, this is not an unfamiliar practice
followed by employers to maintain good relations with his
unrepresented employees. In these circumstances, I find
that the award does not require the Company unlawfully to
recognize the Respondent as the exclusive representative of
the Vallejo technical employees as part of the contract unit,
without being designated by those employees as their
bargaining agent. For this reason, there is no basis for the
Company's contention that, if it honors the award, it would
violate the Act under the Supreme Court's holding in the
International Ladies' Garment Workers' case 22 This being
so, I find that the award is not "clearly repugnant to the
purposes and policies of the Act" as to justify the Board, in
its discretion, to refuse to defer to it.
Nor am I persuaded that the evidence establishes that
the Respondent's efforts to enforce the award had as their
aim the Respondent's recognition as the bargaining agent
of the Vallejo technical employees as part of the New York
contract unit. The only evidence in the record indicates
that the Respondent's actions were motivated by a desire
to preserve job opportunities for the Great Neck drafting
employees by requiring the Company to observe, at least,
19 International Harvester, supra, 138 NLRB at 927.
20 As indicated above, the General Counsel, unlike the Company, does
not contend , nor does the complaint allege, that the Roberts award, as
distinct from the Respondent 's actions, offends the Act.
21 In this respect , the arbitrator's award in this case differs from that
involved in Combustion Engineering, supra.
22 International Ladies' Garment Workers ' Union, AFL-CIO v. N.L.R.B.,
366 U.S. 731. It is noted that the complaint does not allege that the award or
the Respondent ' s actions restrained or coerced the Vallejo technical
employees in the exercise of their statutory right to select a bargaining
representative of their own choosing in violation of Sec . 8(b)(IXA) of the
Act. Cf. N.L.R.B. v. Drivers, Chauffeurs, Helpers, Local Union No. 639
[Curtis Bros.], 362 U.S. 274, where the Court held that peaceful picketing by
a minority union for immediate recognition as the employees ' exclusive
the same wages and working conditions at the Vallejo plant
for technical employees doing the same type of drafting
work 23 and thereby to discourage the diversion of unit
work from the Great Neck plants to the Vallejo facility
where inferior conditions prevailed. Undeniably, the
preservation of unit work is a legitimate union objective.24
While one of the Respondent's demands related to the
recall of two Vallejo technical employees who were
assertedly laid off improperly may perhaps suggest that the
Respondent was interested in seeking recognition, it does
not necessarily establish that the Respondent sought to
represent the Vallejo technical employees as part of the
New York contract unit, which is the very theory of both
the General Counsel's and the Company's case. Such a
demand is entirely consistent with the Respondent's
determination only to achieve reinstatement of the laid-off
employees without recognition,25 or, at most, to represent
the Vallejo technical employees in a separate unit. In fact,
on May 10, shortly after the rendition of the award, the
Respondent filed in the Board's San Francisco region a
petition for certification in a residual unit of Vallejo
employees. It was during the pendency of that proceeding
that the Respondent demanded the recall of the two laid-
off employees. Probably, by thus injecting itself into this
matter, the Respondent expected to win over the employ-
ees' support in the forthcoming election. Accordingly, I
find insufficient evidence that the Respondent's actions
and demands were calculated to achieve recognition and
bargaining rights as the exclusive representative of the
Vallejo technical employees as part of the New York
contract unit. In view of this finding, the Board's holding
in Smith Steel Workers,26 heavily relied on by the General
Counsel and the Company, is clearly inapplicable. In that
case, a union, in defiance of a Board unit clarification
order, insisted on continuing to represent under its
contract certain employees long considered to be included
in a certified unit it had been representing. In the unit
clarification proceeding, the Board determined that the
disputed employees properly belonged in another certified
unit represented by another labor organization. The union,
however, persisted in its representational claim; unsuccess-
fully attempted to file a grievance and to initiate arbitra-
tion pursuant to its contract; and finally brought suit in the
United States District Court under Section 301 of the Act
to compel the company to proceed to arbitration. The
Board held that, by refusing to abide by its unit
clarification order and by insisting on continued recogni-
tion for the disputed employees, the union attempted to
representative did not violate employee rights under Sec. 8 (b)( IXA).
23 That the preservation of job opportunities was the Respondent's
objective is shown by the fact that there is nothing in the award or in its
demands which precluded the Company from unilaterally granting the
Vallejo technical employees more favorable conditions of employment.
24 Cf. National Woodwork Manufacturers Association v. N.LR. B., 386
U.S. 612.
25 See , for example , Local 259, international Union, United Automobile,
Aircraft and Agricultural Implement Workers of America, UA W, AFL-CIO
(Fanelli Ford Sales, Inc.), 133 NLRB 1468, where the Board held that
picketing directed solely at securing the reinstatement of a discharged
employee was not to gain recognition in violation of Sec. 8(b)(7) of the Act.
26 Smith Steel Workers (A.O. Smith), 174 NLRB 235, enfd. in part sub
nom. Smith Steel Workers v. A.O. Smith, 420 F.2d I (C.A. 7).
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain in an inappropriate unit in violation of Section
8(b)(3) of the Act.27 As shown above, this plainly is not the
situation involved in the present case.28
In sum , I conclude that the General Counsel failed to
sustain his burden of proving that the Respondent refused
to bargain with the Company in an appropriate unit
composed of the Company's technical employees in the
Metropolitan New York City area. Accordingly, I recom-
mend dismissal of the complaint in its entirety.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in the unfair labor
practices alleged in the complaint.
RECOMMENDED ORDER29
Upon the foregoing findings of fact , conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, as amended,
It is ordered that the complaint issued herein against the
Respondent , Local 445, International Union of Electrical,
Radio and Machine Workers , AFL-CIO, be, and it hereby
is, dismissed.
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
27 In enforcing the Board's order, the court, however, did not rely on the
union's institution of the Sec. 301 suit, as did the Board.
28 Similarly distinguishable are the other cases cited by the General
Counsel and the Company. Thus, for example, in District 50, United Mine
Workers ofAmerica (Central Soya Company, Inc.), 142 NLRB 930, the Board
found a violation of Sec. 8(bX3) of the Act where the union demanded that
the bargaining negotiations cover employees expressly excluded from the
certified unit it represented . In International Longshoremen 's Association, 118
NLRB 1481, the same violation was found where the union pressed its
demands for bargaining on a broader basis than the unit certification.
29 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board , the'findings,
conclusions , and recommended Order herein shall, as provided in Sec.
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.