Smith Steel Workers

SMITH STEEL WORKERS 235 Smith Steel Workers, Directly Affiliated Labor Union 19806, AFL-CIO and A.O. Smith Corporation. Case 30-CB-162 January 27, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN AND JENKINS On January 30, 1968, Trial Examiner Max Rosenberg issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom, and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices. Thereafter, the General- Counsel and the Respondent filed exceptions and supporting briefs. In addition, the Respondent filed a brief in opposition to the General Counsel's exceptions. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Smith Steel Workers, Directly Affiliated Labor Union 19806, AFL-CIO its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order. CHAIRMAN MCCULLOCH AND MEMBER ZAGORIA, dissenting in part: The facts which our colleagues view as evidencing the Respondent's unlawful refusal to bargain with Smith show only that the Respondent: (a) advised Smith, after receipt of the Board's clarification decision, that it did not regard the Board's decision as vitiating, during the life of its existing collective-bargaining contract with Smith, any term of that contract relating to Experimental Workers A and B, including what the Respondent asserted to be 'in finding a violation in this proceeding, we consider that the Respondent's maintenance of the Section 301 suit is further evidence of the Respondent' s adamani insistence upon recognition as bargaining representative for an inappropriate unit. its contractual right to represent such employees; (b) filed a grievance with Smith protesting as a breach of contract the latter's action in recognizing Technical Engineers Association as the representative of the aforesaid employees and informing these employees that they must henceforth comply with the union-security provision of the contract between Smith and TEA; (c) demanded that Smith submit the grievance issue to arbitration, after Smith had declined to allow the grievance to be processed through the preliminary steps of the contract's grievance-arbitration procedures; and (d) on Smith's refusal to submit to arbitration, requested the aid of the Court, via a Section 301 proceeding, to compel the requested arbitration of its breach of contract claim. All that can fairly be deduced from these facts is that the Respondent asserted a contractual claim concerning Experimental Workers A and B and sought to have that claim resolved through the grievance-arbitration procedures of its contract. Unlike our colleagues, we do not believe that this adds up to a violation of Section 8(b)(3) of the Act. In our view, the Respondent's assertion of its contract claim, though at apparent odds with the Board's unit determination, never developed to the stage, or took the form, of an unlawful refusal to bargain within the meaning of Section 8(b)(3). The Respondent did not make its claim in a bargaining context under circumstances where it might have had the effect of precluding or hampering good-faith negotiations in the appropriate unit. Nor did it engage in economic or other coercive measures to compel action by Smith in derogation if its or TEA's representative status as determined in the Board' s unit clarification decision.2 All of the foregoing is consistent with the Respondent's contention that its conduct was undertaken for the purpose of perfecting a cause of action to allow it to institute the Section 301 lawsuit. The law is clear that before Respondent could institute a lawsuit under Section 301, it was required first to exhaust the grievance-arbitration provisions of the contract. See Drake Bakeries, Inc. v. Local 50, American Bakery & Confectionery Workers, 370 U.S. 254; Republic Steel Corp., v. Maddox, 379 U.S. 650. If, as the Trial Examiner correctly found, and as the majority seemingly concedes, the Respondent was lawfully privileged to invoke the aid of a court, via a Section 301 proceeding, to seek to compel arbitration of its breach of contract claim, it was no less privileged to lay the required procedural predicate for such a court proceeding. Accordingly, we note our dissent from the =Indeed, as found, by the Trial Examiner, the Respondent, following the Board's decision, made no effort to require the Experimental Workers to comply with the union-security provision of its contract, but instead affirmatively notified these employees that that provision would not be enforced against them. 174 NLRB No. 41 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD majority's decision to the extent it finds a violation of 8(b)(3). TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MAX ROSENBERG, Trial Examiner : This matter , with all parties represented , was heard before me at Milwaukee, Wisconsin , on November 7, 1967, on complaint of the General Counsel of the National Labor Relations Board and answer of Smith Steel Workers , Directly Affiliated Labor Union 19806, AFL-CIO, herein called the Respondent.' At issue is whether Respondent violated Section 8 (b)(1)(A), (2), and (3) of the National Labor Relations Act, as amended, by certain conduct to be detailed elsewhere in this Decision . At the conclusion of the hearing, the parties waived oral argument . Briefs have been received from the General Counsel and Respondent, which have been duly considered. Upon consideration of the entire record in this proceeding,, including the briefs of the parties , I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS 1. BUSINESS OF THE EMPLOYER Smith, a New York corporation, maintains a manufacturing facility in Milwaukee, Wisconsin, the only installation here involved, where it is engaged in the manufacture of automobile frames and other metal products. During the annual period pertinent to this proceeding, Smith, at its Milwaukee facility, purchased and received goods and materials directly from points located outside the State of Wisconsin valued in excess of $50,000. During the same span, Smith sold and shipped goods and materials directly to points located outside the State of Wisconsin valued in excess of $50,000. The complaint alleges, the answer admits, and I find that Smith is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Respondent and Technical Engineers Association, herein called TEA, are labor organizations as defined in Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES This case basically poses a challenge to the propriety of a decision by the National Labor Relations Board in a prior Unit Clarification proceeding that certain employees, previously represented by Respondent under a Board certification dating back to 1946, appropriately belonged in another unit for which the TEA's predecessor was certified by that Agency in the same year. The facts are not in dispute and I find them to be as follows. 'The complaint, which issued on September 14, 1967, is based upon charges filed on August 21, 1967 and served on August 24, 1967 At the hearing, I granted the General Counsel' s motion to amend the complaint by adding the allegation that Respondent also violated Section 8(b)(3) of the Act by instituting an action under Section 301 of the Statute in a Federal District Court to compel A. 0 Smith Corporation, herein called Smith, to arbitrate a matter to be chronicled hereinafter. 'I have taken official notice of the record in Cases 30-UC-23, 30-UC-24, 30-UC-26, and 30-UC-27, which involved the same parties as herein. Following the filing of representation petitions in 1946,' separate certifications of a number of unions for various units of Smith's employees, including Respondent and TEA's predecessor, Technical Engineers, Architects, and Draftsmen's Union, Local 54, resulted. TEA's predecessor received a certificate from the Board for a unit of: "All tracers, detail draftsmen, lay-out draftsmen, designers, plant lay-out engineers, draftsman checkers, designer checkers, chemists, metallurgists, laboratory technicians , laboratory assistants A, laboratory assistants B. estimators, planners, time-study men, technical clerks, welding engineers, sales engineers, and industrial engineers, and foremen helpers and group leaders of such classifications, but excluding clerks, stenographers, and supervisors ..., and also excluding all other employees" of Smith [Emphasis supplied.] Respondent was awarded a certificate for all production, maintenance , and office employees, who either were not grouped with the other units found to be appropriate, or were not otherwise specifically excluded from Respondent's requested unit.' In 1951, the members of TEA's predecessor voted to disaffiliate from the American Federation of Labor and to change its designation to TEA. Thereafter, Smith recognized and bargained with TEA as the collective representative for the unit of employees defined in its predecessor's certificate. On August 1, 1966, Smith and TEA entered into an agreement, effective until July 31, 1968, covering the employees in the TEA unit. On September 1, 1966, Smith and the Respondent executed a contract encompassing the employees in the latter's certified unit, which was to run until July 31, 1968 This instrument contained a typical union-security clause requiring membership in that labor organization, following an appropriate period of employment. The instrument also provided for the adjustment of grievances arising under its terms, culminating in arbitration. On December 30, 1966, Smith petitioned the Board in Cases 30-UC-23 and 30-UC-24 to clarify the units represented by Respondent and TEA. Specifically, Smith prayed that, because "Irritations and arguments adversely affecting the stability of the collective bargaining relationship have arisen," the Board should determine whether or not employees then classified as Experimental Workers A and Experimental Workers B in its Automotive Laboratory, Department 1674, who were covered by Respondent's current contract with Smith, should be removed from Respondent' s unit and placed in that of TEA. At the hearing in these proceedings which was conducted on February 9 and 10, 1967, Respondent filed a petition in Case 30-UC-26 claiming that certain individuals identified as Laboratory Assistants A in Department 1674, who were represented under TEA's agreement with Smith, appropriately belonged in Respondent's certified unit. At the same time, TEA importuned the Board in Case 30-UC-27 to clarify its existing unit and include therein those employees styled as Experimental Welders and Garage Mechanics in Department 1674, who were currently represented for collective-bargaining purposes by the Respondent. Following the hearing and, on February 24, 1967, the Regional Director for Region 30 issued an order transferring the Unit Clarification proceedings directly to the Board, after which all parties filed briefs in that 'Cases 13-R-3539 and 13-R-3595 'Reported in 70 NLRB 1288. SMITH STEEL WORKERS matter. On July 25, 1967, the Board issued its Decision and Order on the aforementioned petitions. As indicated in that decision, and as evidenced by the record, the basic dispute centered around the group placement of approximately 18 employees in Department 1674, 10 of whom were then represented by TEA, and 8 of whom constituted part of Respondent's unit. At the time of the hearing in those cases, the 10 men covered by TEA's contract were classified as Technicians I, a position which had previously been rated as Laboratory Assistant A. Of the eight individuals represented by Respondent, five were classified as Experimental Workers A, two as Experimental Welders, and one as a Garage Mechanic. Also in issue was an additional category entitled Experimental Worker B which had no occupants on the hearing date but which had been filled by Smith on an interim basis with employees who were represented by Respondent. Upon the facts recorded during the Unit Clarification hearing, the Board found that the Automotive Laboratory, which had been established prior to World War II, deactivated during the hostilities, and resumed in late 1945, continued in operation since that year. Its principal function was to construct and test prototypes of experimental vehicles and such components as automotive frames, control arms and associated parts which were developed by Smith's automotive division. Laboratory employees had consistently worked under the direction of professional engineers from the development engineering department who provided the former with blueprints and designs of the prototype or component to be tested, and offered advice as to the test data to be furnished. The Board also found that the Automotive Laboratory Department 1674 was a relatively small function at the time of the certifications of Respondent and TEA's predecessor in 1946, consisting of two employees classified as "junior designers" and two who were designated as "laboratory assistants," and all of whom were included in the unit for which the predecessor had been certified.' Although no additional employees were assigned to the laboratory complement on a permanent basis until 1951, Smith temporarily assigned men to assist the regular laboratory staff from 1946 to 1951 as the occasion required. These assignments went to employees who were regularly employed in Smith's sample shop, some of whom were represented by Respondent and some by the International ' Association of Machinists, a labor organization which was certified in the 1946 election proceeding but which is not involved herein.' These temporarily assigned employees functioned as helpers to the laboratory assistants represented by the predecessor to TEA and engaged in some testing duties either with or under the direction of the laboratory assistants. 'In this connection, the Board noted in its decision that, although the unit as set forth in this certificate made separate reference to laboratory assistants A and B as categories to be included, the record in the 1946 representation proceedings clearly demonstrated that the use of the "A" and "B" symbols reflected the parties' recognition that Smith possessed the right to grade the laboratory assistants according to their skill and experience where the distinction was deemed appropriate In support of this conclusion , the Board relied upon relevant portions of the record in the 1946 proceedings which showed that, by agreement of the parties , including Respondent, all "laboratory helpers" and other employees classified in "technical types of employment" were considered included in the unit for which TEA's predecessor was certified 'The record established and the Board found that, in 1946, the automotive laboratory and the sample shop were located in adjacent rooms in a wooden structure, with the craft machinists employed in the shop represented by the Machinists' Union and the other employees represented 237 With the advent of 1951 came a marked expansion of the permanent laboratory staff. The record establishes, and the Board found, that Smith added five employees to the automotive laboratory who had formerly been employed in the sample shop. Four of these had been utilized in the sample shop as Experimental Workers A where they were represented by Respondent in its production, maintenance and office employee unit. The remaining employee had performed the duties of a bench machinist in the sample shop and was included in a unit of craft machinists for which the Machinists' union had been certified in 1946. All of the transferees were delegated to perform testing work previously done by the laboratory assistants who were included in the TEA unit. Coincidental with the transfers, Smith reclassified the bench machinist as a laboratory assistant and, thereafter, he became part of the TEA unit. With respect to the other four employees, Smith allowed them to retain their job titles of Experimental Workers A and they remained under Respondent's representation. The Board further found that, as the years rolled by, the automotive laboratory complement gradually increased due to the acquisition of additional and complex testing machines, and the job titles were revised to reflect the various degrees of skills and the changes in job functions. Thus, the Board found that, as of the date of the Unit Clarification hearing, there existed in the laboratory three job categories in a single line of progression, namely, Experimental Worker B (the entrance grade); Experimental Worker A; and, Technician I (the top grade).' The Board further found that, although technological advances brought about an upgrading of the skills required to man the automotive laboratory, the content of each job classification remained essentially the same since the creation of the classification Predicated upon the evidence adduced at the hearing, the Board evaluated the current duties performed by each of the employees who occupied the disputed classifications. It found that the Technicians I were responsible for the technical test projects set out by the professional engineers under whose guidance the former toiled. Using an experimental vehicle as a test norm, the Technicians I set up the equipment required to test the various component parts of the vehicle, insured the maintenance of appropriate testing conditions and procedures, and made an accurate report of the test data compiled. The Board also found that the Experimental Workers A engaged in various testing operations required for the project and, when called upon, gave assistance to the Technicians I. Approximately two-thirds of their time was devoted to working jointly with the Technicians I under common supervision on the same project. Finally, the Board found that the Experimental Workers B, when utilized in the laboratory, occupied the status of trainees in relationship to the Technicians I and Experimental Workers A and engaged in routine testing duties under the eye of these higher-rated employees.' by Respondent. Upon relocation, the sample shop was housed in the main production plant and the automotive laboratory was situated in a building located across the street and known as building 83 The development engineering and design engineering departments were also sheltered in building 83 'There also existed two other work classifications - Experimental Welder and Garage Mechanic In addition, the Board found that the Experimental Welders and Garage Mechanics did specialized work not performed by either the Technicians I, the Experimental Workers A or the Experimental Workers B, such as assembling, disassembling , and repairing parts of the experimental vehicles 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After a consideration of the foregoing facts and circumstances, the Board in its Unit Clarification decision concluded that "technicians I and experimental workers A and B in the automotive laboratory [Department 1674] are in fact laboratory assistants with varying degrees of skills, and that the testing functions they now perform are substantially the same as those which were performed in the automotive laboratory at the time of the 1946 unit determination solely by employees classified as `laboratory assistants .' " The Board pro.,eeded to find that "all laboratory assistants are within the intended definition of the certified unit now represented by TEA, and outside that of the certified unit now represented by [Respondent]., In these circumstances, we find no merit in [Respondent's] request that we clarify its unit to include specifically therein those employees classified as technicians I." The Board thereupon granted the requests of Smith and TEA to include in the latter's unit the Experimental Workers A and B, who had previously been represented by Respondent" Following the Board's decision of July 25, 1967, and on September 11, 1967, Respondent filed a motion for reconsideration with the Board, urging that its decision was "contrary to law and established Board policy." By order dated October 26, 1967, after a review of the record made, the Board denied this motion for lack of merit Meanwhile, on August 5, 1967, Robert Durkin, Respondent's secretary-treasurer, dispatched a letter to D. W. Harris, Smith's industrial relations director. This document recited that Respondent was in possession of the Board's decision and that, in the former's opinion, the decision was erroneous and might be appealed to the Federal Courts. Durkin advised that, even if the legality of the decision were ultimately to be sustained by the Courts, it was his position that the decision would become effective "only at the end of our present contract [due to expire on July 31, 1968] and that the decision does not vitiate any terms of the contract during its life. Further the decision cannot affect the representation of our union of the Experimental "A" 's and Experimental " B" 's in Department 1674 for the life of our contract." Durkin concluded that Respondent expected Smith to continue "to abide by all terms and conditions of employment presently set forth in the labor agreement" between Respondent and Smith On August 9, 1967, Harris wrote to Elmer Denman, president of TEA, stating that, in compliance with the Board's decision, Smith recognized TEA as the sole bargaining representative for the Experimental Workers A and B , and Harris enclosed copies of letters which he had sent to the 10 employees who occupied these classifications which conveyed the intelligence that the Board had placed them in TEA's unit Only when there was no such work to be done, the Welders and Mechanics assisted in accomplishing laboratory work However, they were not in the line of progression from Experimental Worker B to Technician I 'in making this finding , the Board relied upon evidence relating to the intended scope of the respective units at the time they were established by the Board in 1946 , as well the record made in the Unit Clarification proceeding, and, based thereon , was persuaded that the basic functions performed in the laboratory in 1967 were essentially the same as they were in the ,946 certification proceeding In its view , the Board deemed that this evidence was entitled to greater weight than the facts advanced by Respondent for the inclusion of laboratory assistants in its unit, i e , that the production employees possessed contractual rights to "bump" into the lower-rated automotive laboratory jobs, and that other laboratory employees represented by TEA infrequently transferred into the automotive laboratory or interchanged in other classifications "The Board denied TEA' s request for the inclusion of Experimental Welders and Garage Mechanics in its unit and informed them that they must henceforth comply with the union security provision in the contract between Smith and TEA. On the same date, Harris mailed a letter to Durkin which related that Smith considered itself bound by the Board's determination in the Unit Clarification proceeding and that it had recognized TEA as the exclusive bargaining agent for the Experimental Workers. Harris also enclosed copies of the letters which he had sent to these employees. Continuing the chronology, on August 14, 1967, Michael Richards, the acting chairman of Respondent's grievance committee, wrote to Nathan Krogsund, director of labor relations for Smith, reminding Krogsund that, on August 11, 1967, Joseph Magda, the chairman of the committee, had unsuccessfully attempted to file a grievance with Smith over the latter's action in recognizing the TEA as bargaining representative for the Experimental Workers in violation of the existing agreement between Respondent and Smith. Richards suggested that the various intermediate grievance steps be eliminated and that the matter be immediately submitted to arbitration pursuant to their contract On August 29, 1967, after failing to receive a response from Smith, Respondent's secretary-treasurer Durkin dispatched another letter to Krogsund in which Durkin recapitulated the steps which Respondent had taken to assure its continued representation of the Experimental Workers for the term of the contract between the parties, and noted that Smith had declined to comply with the contractual grievance procedures for resolving the issue Durkin advised Krogsund to name Smith's appointee to an arbitration panel, and warned that Respondent would take whatever legal action it deemed necessary to enforce its rights under the contract in the event Smith resisted arbitration Receiving no reply from Smith, Respondent instituted an action on September 12, 1967, under Section 301 of the Act with a United States District Court in `Wisconsin praying for a judicial order compelling Smith to proceed to arbitration under the existing contract This suit was followed on October 23, 1967, by the filing of a motion for summary judgment by Respondent with the same court On November 9, 1967, counsel for the General Counsel filed a motion on behalf of the Board with the aforesaid Court to intervene in the proceedings under Section 301 and, on the same date, moved for summary judgment on the ground that no genuine issue as to any material fact existed." Both the suit and the respective motions are, so far as appears, still pending before that tribunal. Rounding out the chronology, on various dates between November 28 and December 15, 1967, Respondent's Secretary-treasurer Durkin mailed letters to the five Experimental Workers who were formerly included in its unit. After reiterating its contention that these individuals appropriately belonged in Respondent's certified unit, Durkin informed the men that Respondent would make no effort to enforce the union shop clause in its contract with Smith against them " "After the close of the hearing, Respondent moved to reopen the record for the purpose of receiving in evidence the General Counsel' s motion before the Court to intervene in the Section 301 case, and his cross-motion for summary judgment Without opposition , Respondent's motion is granted, and those documents are received in evidence and have been duly considered by this Trial Examiner "In another post-hearing motion , Respondent prayed that I consider these letters as evidence in defense to the charges filed against it in this litigation Again, without opposition, the motion is hereby granted and the SMITH STEEL WORKERS 239 At the hearing in this complaint proceeding, Respondent once more asserted that the Board erred in placing Experimental Workers A and B within TEA's collective-bargaining unit as "laboratory assistants A and B." Various factual and legal arguments , previously urged by it in the original Unit Clarification proceeding, and advanced again with more specificity in its motion for reconsideration, were pressed before this Trial Examiner. These dwelt essentially with an attack upon the Board's decision in clarifying the respective bargaining units represented by the opposing parties which favored TEA." In addition, Respondent sought to introduce both testimonial and documentary evidence to support its claim that the Board was wrong in redefining the units in the manner in which it did. This evidence was rejected on the ground that it was neither newly discovered nor unavailable for presentation to the Board at the Unit Clarification hearing on February 9 and 10, 1967, or prior to the Unit Clarification decision rendered by the Board on July 25, 1967.'4 Hence, on the basis of the record made in the Unit Clarification proceeding, as well as the evidence adduced in the 1946 representation proceeding, the Board decided that Experimental Workers A and B, who had been represented by Respondent since 1946, appropriately belonged in the unit for which TEA's predecessor had been certified in that year, and for which TEA had bargained with Smith since 1951, because, in its judgment, these employees actually performed the work of laboratory assistants at all times since the original certifications. The Board further determined that the Technicians I should remain under TEA's representational aegis. Based upon the entire record made herein, I am persuaded that the Board did not err in its findings that the original certification of TEA's predecessor was intended to encompass Experimental Workers within the unit description of laboratory technicians and laboratory assistants A and B, and that Technicians I properly belonged in TEA' s unit. letters will be accorded their appropriate weight in resolving the issues presented "For example , Respondent asserted that it was improper for the Board to decide the issue of the unit placement of the Experimental Workers A and B in a Unit Clarification proceeding under Section 9 of the Act, contending that the matter should have been resolved under the jurisdictional disputes procedures set out in Sections 10(k) and 8(b)(4)(D) In denying Respondent's motion to reconsider the Unit Clarification decision, the Board assessed Respondent ' s argument in this regard, based upon the United States Supreme Court' s decision in Carey v Westinghouse Electric Corp, 375 U S 261, that this was not a "representational dispute" but rather a "jurisdictional dispute" and the Board disagreed with Respondent's characterization of the issue as "jurisdictional " I perceive nothing in the record made before me to warrant upsetting the Board 's finding in this regard "In the offers of proof which Respondent made at the hearing herein, it sought to show through the testimony of Respondent's Secretary-treasurer Durkin that, throughout the negotiations leading to the contract which was executed between Respondent and Smith on September 1, 1966, Smith never took the position that Respondent did not represent the Experimental Workers A and B in the Automotive Laboratory, Department 1674, that, as a result of those negotiations, Experimental Workers A who were represented by Respondent received an inequity wage increase, and, that Smith processed a grievance with Respondent concerning an Experimental Worker A named William Austin Moreover, Durkin would also have testified that, on August 19, 1966, Harris, Smith's director of industrial relations, informed Durkin that Smith had no plans on that date to remove work from the jurisdiction of Respondent Respondent candidly conceded that this evidence existed at the time of the hearing on the Unit Clarification petitions Respondent also would have sought to show through the testimony of Joseph Majda, chairman of Respondent's grievance committee, that Majda attended a meeting with officials of Smith regarding a grievance of a Willie Adams on May 5, It is undisputed and I also find that, on August 5, 1967, Respondent's Secretary-treasurer Durkin demanded that Smith honor the terms of their collective-bargaining agreement and continue to deal with Respondent on an exclusive basis regarding the Experimental Workers A and B, despite the Board's Unit Clarification decision, until the current contract expired. It is uncontroverted and I find that, on August 11, 1967, Respondent's Grievance Committee Chairman Magda attempted to file a grievance under the contract with Smith over the latter's recognition of the TEA as bargaining agent for the Experimental Workers in violation of the existing agreement between Respondent and Smith and that, on August 14, 1967, Respondent's Acting Grievance Committee Chairman Richards demanded that Smith immediately proceed to arbitration on the matter It is undenied and I further find that, on August 29, 1967, Respondent's Durkin, after reviewing Respondent's demands for continued recognition as the collective representative for the Experimental Workers, insisted that Smith appoint an arbitrator as provided in the current contract who would consider the unit placement of those employees, and warned that Respondent might bring suit if Smith declined to do so. I also find that, on September 12, 1967, Respondent brought an action in a Federal District Court to force Smith to proceed to arbitration, and requested summary judgment against Smith, which action was opposed by counsel for the General Counsel who also sought summary relief against Respondent. Finally, I find that, between November 28 and December 15, 1967, Respondent informed each of the five Experimental Workers affected by the Board's Unit Clarification decision that Respondent would not enforce its union security clause against them and, in the absence of evidence to the contrary, I find that Respondent did not require that these men comply with this provision following the aforesaid decision of July 25, 1967. Having made the foregoing findings of fact, I next turn to a consideration of whether Respondent's conduct offended the Act as pleaded in the General Counsel's complaint. The General Counsel contends that Respondent violated Section 8(b)(3) by its insistence that Smith continue to abide by all the terms and conditions of employment set 1967, in which Adams sought to exercise his rights under Respondent's contract to bump a more junior Experimental Worker A, and that Smith never maintained at this meeting that Experimental Workers A were not encompassed within Respondent 's unit Respondent acknowledged that, although this episode occurred more than 2 months before the Board's Unit Clarification decision, it made no attempt to reopen the record in that proceeding to elicit this testimony Further, Respondent sought to show through the testimony of Clarence Seefeld that experimental work on automotive frames was performed in 1946 by machinists represented by the Machinists' union and other employees represented by Respondent in what was then known as the mechanical research and sample frame departments and that, at the representation hearing in 1946, TEA's predecessor never questioned the jurisdiction of the Machinists' union and Respondent to do the work in question Finally, Respondent sought to show by the testimony of William Austin that, through the good offices of Respondent , Austin was permitted to bump into Department 1674 as an Experimental Worker A in 1963 and was thereafter represented by Respondent Both Seefold and Austin were available to Respondent prior to the Unit Clarification hearing. I also placed in the Rejected Exhibit File various documents relating to arbitration matters which occurred prior to the Unit Clarification proceeding which dealt with Respondent 's representation of the Experimental Workers A and B prior to that proceeding . I did so on the ground that these documents antedated the hearing in that cause and hence were available to Respondent for presentation to and consideration by the Board in the Unit Clarification proceeding 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD forth in their contract, in disregard of the Board's Unit Clarification determination , until the contract expired on July 31, 1968 , by its attempt to file a grievance with Smith over the latter' s recognition of TEA as the bargaining representative for the Experimental Workers in defiance of the Board's prior determination ; by demanding that the matter immediately be taken to arbitration; by threatening Smith with legal action if Smith refused to submit the grievance to an arbitrator ; and, by instituting suit under Section 301 to compel Smith to arbitrate the -matter. In essence, the General Counsel takes the position that, once the Board removed the Experimental Workers from Respondent' s unit and placed them under the wing of the TEA, the Respondent unlawfully refused to bargain with Smith when it insisted that the latter continue to recognize Respondent as the bargaining agent for a unit of employees including the Experimental Workers, a unit which became inappropriate following the Board's Unit Clarification decision . Furthermore , the General Counsel asserts that Respondent violated Section 8(b)(2) and (1)(A) by demanding that Smith continue to extend all the terms of their contract , including the union security provision , to the Experimental Workers during the life of the agreement. Respondent defends its course of conduct on various grounds.15 Thus, Respondent urges that , even assuming the correctness of the Board 's award , the Board was without statutory power to expend the force of its decision during the term of the labor agreement with Smith and hence Respondent could lawfully require Smith to adhere to that agreement and bargain with Respondent concerning the Experimental Workers until that pact had expired. Next, Respondent contends that it was entitled to seek an alternate forum, i.e., arbitration , to resolve the issue within the context of its contract concerning the unit placement of the Experimental Workers. Additionally, Respondent argues that it was legally permissible to bring suit in the Federal District Court to compel Smith to submit the matter of unit placement to arbitration under the existing agreement , and to threaten to institute such suit, in order to obtain court review of the propriety of the Board's Unit Clarification determination. Finally, Respondent contends that none of its activities herein fell within the proscriptive ambit of Section 8(b)(2) or (1)(A). With respect to Respondent's argument that the Board lacked authority to remove the former as bargaining agent for the Experimental Workers during the term of its contract with Smith, Respondent contends that the Board's decision was in derogation of Section 8(d) which provides that a party to an agreement need not be forced . . to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditons can be reopened under the provisions of the contract " Respondent misapprehends the nature and thrust of the Board 's clarification action. That action portrays an effort by the Board to police its certifications to insure their validity and vitality, and thus enhance stability in labor relations. Essentially , what the Board announced in its Unit Clarification decision was that, notwithstanding Respondent's representation of the Experimental Workers under contract with Smith over the "On one such ground, Respondent claims that its activities were privileged because the Board's Unit Clarification decision was wrong as a matter of fact and law. I have heretofore found that the Board did not err in its unit determination Accordingly, I find and conclude that there is no merit in this contention years, these employees had in fact always been "laboratory assistants" as defined in TEA's assumed unit; that they should never have been included in Respondent's certification, that they should always have been represented by TEA; and, that the time had come to correct the situation. The purport of the decision is made manifestly clear by the Board's conclusion that "experimental workers A and B in the automotive laboratory are in fact laboratory assistants with varying degrees of skills, and that the testing functions they now perform are substantially the same as those which were performed in the automotive laboratory at the time of the 1946 unit determination solely by employees classified as `laboratory assistants.' " Rather than constituting a "modification" of Respondent's contract, the determination operated to realign the unit placement of the Experimental Workers in a manner consistent with the facts and circumstances which existed at the time of the certification proceeding in 1946. Inasmuch as the Board found that Respondent had no right to include these employees within the scope of its agreement with Smith, I fail to perceive how the removal of the Experimental Workers from Respondent's unit amounted to an illegal modification of the latter's contract within the purview of Section 8(d). In sum, the Board determined by its decision that Experimental Workers did not belong in Respondent's certified unit and that that unit, with the inclusion of those employees, was inappropriate. In District 50, United Mine Workers of America (Central Soya Company, Inc.)," the Board observed that "the law is clear that an employer has the right to confine the negotiations to the appropriate unit and that a union violates Section 8(b)(3) of the Act, as a matter of law, when it presses demands for a unit broader than that certified by the Board."" And, in Texltte, Inc.," it noted that "a union which is the statutory representative of employees in an appropriate unit has the obligation, as does the employer, to bargain in good faith . for employees in that unit . . . Hence a union which insists upon bargaining only for an inappropriate unit does not fulfill its obligation to bargain as defined in the Act." I have heretofore found, based upon uncontroverted evidence, that, on August 5, 1967, Respondent's Secretary-treasurer Durkin demanded that Smith continue to abide by the contract between the parties and that Smith continue to bargain with Respondent with respect to the Experimental Workers until the expiration of the agreement of July 31, 1968, in defiance of the Board's decision that those individuals did not appropriately belong in Respondent's certified unit. Based on the teachings of District 50, United Mine Workers of America and Texltte, Inc. and related cases, I conclude that Respondent violated Section 8(b)(3) of the Act by pressing its demand with Smith for continued recognition and bargaining for a unit which the Board found to be inappropriate in its Unit Clarification decision. Regarding Respondent's defense that it was entitled to grieve and to seek an arbitral resolution of its claim to continued recognition as the bargaining agent for the Experimental Workers within the avenues set forth in its contract, despite the Board unit clarification pronouncement, Respondent seeks solace in the Supreme Court's decision in Carey v. Westinghouse Electric "142 NLRB 930, 939 "See also International Longshoremen's Association (New York Shipping Association , Inc ), 118 NLRB 1481, 1483 "119 NLRB 1792, 1796. SMITH STEEL WORKERS Corporation.19 In that case, a labor organization which represented certain employees of the employer filed a grievance under a collective-bargaining compact claiming that other employees then represented by another certified union appropriately belonged in its unit. The employer refused to arbitrate the issue and the aggrieved union filed suit in a State court to compel arbitration The State tribunal dismissed the action. On certiorari, the Supreme Court reversed. In doing so, the Court ruled that the aggrieved union was entitled to press its unit claim before an arbitrator even though an alternative remedy before the Board was available by the filing of unfair labor practice charges. That decision, in my opinion, does not reach the issue here presented In Carey, the complaining union was held to have a duality of recourse and could properly lay its cause before the forum of arbitration although the Union could also have presented the issue to the Board either in the form of a jurisdictional dispute under Section 10(k) and Section 8(b)(4)(D), or by petitioning the Board under Section 9(c)(1) to obtain a clarification of the respective certificates which the Board awarded to the competing labor organizations. However, the Court made the notable comment that "Should the Board disagree with the arbitrator, by ruling, for example, that the employees involved in the controversy are members of one bargaining unit or another, the Board's ruling would, of course, take precedence, and if the employer's action had been in accord with that ruling, it would not be liable for damages under Section 301." (emphasis supplied)" In the instant case, all parties chose to submit their dispute to the Board in a Unit Clarification proceeding and that Agency, after a careful review of the facts and the conflicting contentions, decided that the Experimental Workers whose status was in question should not have been included in Respondent's unit but should have originally been placed in the unit represented by TEA. It would seem, based upon the Supreme Court's observation in Carey, that once this ruling was made it took "precedence" over any contrary decision which an arbitrator might thereafter reach in the matter. Hence, by demanding that Smith take the issue to arbitration after it had been laid at rest by the Board, Respondent in effect was pressuring Smith to continue to bargain with the former concerning a unit of employees which included the Experimental Workers who should not have been grouped in that unit. Accordingly, by this conduct I conclude that Respondent violated the provisions of Section 8(b)(3) The complaint also alleges that it was a violation of Section 8(b)(3) for Respondent to bring suit in the Federal District Court under Section 301 to compel Smith to arbitrate the unit placement of the Experimental Workers, and for Respondent to threaten to bring such an action in the event that Smith refused to proceed to arbitration I am not persuaded that Respondent's activities in this regard offended the provisions of that Section. In Clyde Taylor Company,21 the Board stated that it "should accommodate its enforcement of the Act to the right of all persons to litigate their claims in court, rather than condemn the exercise of such right as an unfair labor practice."22 The presumption in such instances is that the court can be relied upon to give due effect to the controlling law. Thus, if the court determines that, under the Carey decision heretofore chronicled, Respondent has no standing to sue, it will so indicate and dismiss the action However, if Respondent is permitted to maintain "375 U.S 261 "Id at p 272 241 the suit by that court, it is not for this Trial Examiner or the Board to say that Respondent may not. There is yet another reason why Respondent should be free to pursue its judicial remedies. As indicated previously, the basic issue in dispute in this litigation is whether the Board properly decided in the Unit Clarification proceeding that the Experimental Workers were not encompassed within Respondent's certification and did not belong in the latter's unit. In consequence of that determination, Respondent was entitled to judicial review to test the validity of the Board's decision. Because of the peculiar posture in which this case presents itself, Respondent could have taken one of two paths to obtain that review. First, it could have engaged in a strike against Respondent for continued recognition and bargaining for the Experimental Workers and thus force Smith to file charges against it under Section 8(b)(7)(A).21 In the event the Board found that that Section had been violated, Respondent could then have sought a review of the Board's order which would flow from such finding. However, Respondent displayed commendable restraint in eschewing strike action to bring the matter to a head. Instead, it chose to follow a less disruptive course by filing suit to challenge the Board's determination. In my view, Respondent was legally privileged to do so. It would seem to follow that, if Respondent was within its statutory rights to institute the action before the court, it was also permissible for it to threaten Smith with litigation to resolve their outstanding controversy I therefore conclude that Respondent did not violate Section 8(b)(3) by bringing an action against Smith to compel arbitration over the group placement of the Experimental Workers, or by threatening such litigation if Smith declined to arbitrate the issue. Finally, the General Counsel contends that Respondent restrained and coerced Smith's employees in the exercise of rights guaranteed in Section 7 of the Act, and caused and attempted to cause Smith to discriminate against its employees, all in violation of Sections 8(b)(2) and 8(b)(1)(A) of the Statute. His theory seems to be that, inasmuch as Respondent sought to compel Smith to adhere to the terms of their collective agreement until its termination, which agreement contained a union security provision requiring employees to remain members of Respondent in good standing as a condition of continued employment, Respondent thereby impinged upon the statutory rights of the Experimental Workers A and B. I have heretofore found that the compact between Respondent and Smith contained a union-security clause which obligated the employees covered thereunder to become and remain members of the Respondent, after an appropriate escape period, as a condition of employment. I have also found that, on August 5, 1967, Respondent's Secretary-treasurer Durkin informed Smith that the Board's Unit Clarification decision did not affect Respondent's continued representation of the Experimental Workers and Durkin demanded that Smith abide "by all terms and conditions of employment presently set forth in the labor agreement" between the parties. However, on the basis of uncontroverted evidence, "127 NLRB 103 22Id at p 109 See also Local 283, United Automobile, Aircraft, (Wisconsin Motor Corporation ), 145 NLRB 1097, 1121 "That Section makes it unlawful for a union to picket an employer to force recognition or bargaining for employees "where the employer has lawfully recognized in accordance with this Act any other labor organization and a question concerning representation may not appropriately be raised under Section 9(c) of this Act " 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I further found that, following the Board's decision on July 25, 1967, Respondent made no effort to require the Experimental Workers to comply with the union security provision and, indeed, between November 28 and December 15, 1967, it affirmatively notified the employees involved that the provision would not be enforced against them. Under the special circumstances of this case, I conclude that Respondent did not restrain or coerce the Experimental Workers, and did not cause or attempt to cause Smith to discriminate against them, in violation of Section 8(b)(2) and 8(b)(IXA) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Smith, set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and to the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices set forth above , I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. A. O. Smith Corporation, Milwaukee, Wisconsin, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Smith Steel Workers, Directly Affiliated Labor Union 19806, AFL-CIO, and Technical Engineers Association, are labor organizations within the meaning of Section 2(5) of the Act. 3. All production, maintenance, and office employees, including foreman helpers and group leaders, but excluding Experimental Workers A and B, in Department 1674, cafeteria workers, firemen and oilers, confidential clerks, secretaries and administrative assistants, working in the office of the chairman of the Board, the president, the vice presidents, the secretary-treasurer, the assistant secretary-treasurer and comptroller, the personnel director, the industrial relations manager and his assistant, medical personnel, employees of the legal department, foremen, and supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Respondent is, and at all times material herein has been the exclusive representative of the employees in the above appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing to bargain for an appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(3) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby recommend that Smith Steel Workers, Directly Affiliated Labor Union 19806, AFL-CIO, its officers, agents, representatives, successors, and assigns, shall: 1. Cease and desist from: (a) Insisting that A. O. Smith recognize and bargain with Respondent as the exclusive representative for Experimental Workers A and B in Department 1674 of the Automotive Laboratory pending expiration of the current contract between the parties. (b) Filing or attempting to file grievances with Smith under their contract over Smith's recognition of Technical Engineers Association as the exclusive bargaining representative for the Experimental Workers A and B in Department 1674. (c) Demanding that Smith arbitrate the unit placement of Experimental Workers A and B in Department 1674. 2. Take the following affirmative action which I find is necessary to effectuate the policies of the Act: (a) Post at its business office and meeting hall and at all other places where notices to members are customarily posted, copies of the notice attached hereto as an Appendix.24 Copies of said notice, to be furnished by the Regional Director for Region 30, shall, after being duly signed by an authorized representative of Respondent, be posted by it immediately upon receipt thereof and be maintained for a period of 60 consecutive days thereafter in conspicuous places. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for Region 30 signed copies of the notice attached hereto as an Appendix for posting on the bulletin boards of A. O. Smith, the latter willing, in all places where notices to Smith's employees are customarily posted (c) Notify the Regional Director for Region '30, in writing, within 20 days from the date of receipt of this Decision and Recommended Order, as to what steps it has taken to comply herewith.25 IT IS FURTHER RECOMMENDED that the complaint herein be dismissed insofar as it alleges violations of the Act not heretofore found. "In the event that this Recommended Order shall be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." "In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read : "Notify said Regional Director in writing within 10 days from the date of this Order what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in SMITH STEEL WORKERS 243 order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT insist that A. O. Smith recognize and bargain with our union as the exclusive representative for the Experimental Workers A and B in Department 1674 of the Automotive Laboratory pending expiration of our current contract with Smith. WE WILL NOT file or attempt to file grievances with Smith under our contract over Smith's recognition of Technical Engineers Association as the exclusive bargaining representative for the Experimental Workers A and B. WE WILL NOT demand that Smith arbitrate the unit placement of Experimental Workers A and B. SMITH STEEL WORKERS, DIRECTLY AFFILIATED LABOR UNION 19806, AFL-CIO (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 2nd Floor, Commerce Building, 744 North 4th Street, Milwaukee, Wisconsin 53203, Telephone 272-3879.