Zenith Radio Corp.

366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Zenith Radio Corporation, Zenith Sales Corporation, Zenith Radio Distributing Corporation and Independent Radionic Workers of America. Case 13-CA-7623-1-2 June 30, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On September 6, 1967, Trial Examiner Joseph I. Nachman issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that it was unnecessary to decide whether Respondent had engaged in certain unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel and the Charging Party filed cross-exceptions and supporting briefs. The General Counsel and the Charging Party also filed reply briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 to the extent consistent herewith. The complaint alleges that the Respondent twice violated Section 8(a)(5) and (1) of the Act, by unilaterally placing into effect new job classifications at a time when the Respondent and the Union had agreed to arbitrate the predecessor classifications of the new jobs, and by refusing to furnish to the Union certain information relative to the proper classification of jobs within the bargaining unit represented by the Union. With respect to the latter charge of failing to supply information, the Trial Examiner concluded that the Respondent had indeed breached its bargaining obligation, and we are not persuaded by Respondent's arguments taking issue with this conclusion. As to the allegation of unilaterally reclassifying jobs in violation of Section 'Subsequent to the filing of exceptions and briefs , the General Counsel moved that a related arbitration award be made part of the record in this case. The Respondent did not oppose the motion . The motion is hereby granted. 8(a)(5) and (1), the Trial Examiner concluded, after reviewing all the relevant circumstances, that it would "not effectuate the policies of the Act" to find that Respondent had committed an unfair labor practice in these instances. He. therefore recommended that this portion of the complaint be dismissed. We believe that the charge of unlawful unilateral action should be resolved on the merits. While the Trial Examiner correctly thought that the dispute between the parties would be put to rest, so far as the propriety of the reclassifications themselves were concerned, by an arbitration proceeding which the parties had entered upon, it is apparent that the underlying complaint, relating to the right of the Respondent unilaterally to create new jobs while arbitration was pending, was not, and was not intended to be, resolved by the arbitrator in that proceeding. The record shows that the complaint alleges an unfair labor practice based on the Respondent's unilateral action; that the parties have deliberately refrained from submitting this basic question to arbitration; and that they have indicated that they believe the issue to be an appropriate one for determination by the Board. In these circumstances, we are of the opinion that the purposes of the Act will be effectuated by deciding the question. In May 1965, the parties began bargaining for a new contract to replace the one scheduled to expire on June 30. While a union claim of inequity in the classification of 85 jobs had been considerably reduced by June 29, there remained in dispute on this date some 29 positions. Among these were jobs 1202, 1207, and 1504. In order to reach a new contract before expiration of the old one, the parties agreed to process these 29 jobs under article 8 of the new contract, which provided the mechanism for the establishment or recognition of "new jobs" and the procedure for resolving differences over the grades and classifications assigned to such jobs. Article 8.1 defines a "new job" to include both newly created functions and jobs which have undergone substantial changes in content. Article .8.2 provides in part, as follows: "At any time following the date of this agreement the Company may establish a new job as defined above or the Union may give written notice to the Company that in its opinion a new job has been established." Article 8.2 goes on to provide that, "in either case," the Company shall, within 30 days, assign to the new job an appropriate labor grade and submit to the Union a job description and substantiating data for the Company's evaluation of the job. The Union then has 30 days in which to question, in writing, the appropriateness of the labor grade and the accuracy of the job description. If it raises a question as to either, article 8.21 requires the parties to confer, within 5 days, about settling the matter. If this conference should fail to result in agreement, either party may, within 10 days thereafter, refer the 177 NLRB No. 30 ZENITH RADIO CORPORATION 367 matter to arbitration. Although the new contract was concluded on July 1, 1965, it apparently was not until February 7, 1966, that the Union attempted to seek revision of any of the existing labor grades included in the contract. On that date, the Union wrote to Respondent demanding, pursuant to Article 8 of the contract, the upgrading of labor grades in all repairman job classifications carrying grades 9, 12, 13, 14, and 15. The Union's complaint covered, among others, jobs 1202, 1207, and 1504,2 the classifications here involved. Thereafter, on April 13,' the Union filed a written request for the most recent job descriptions and substantiating data evaluation sheets as to certain classifications, including jobs 1202, 1207, and 1504. On April 28, Respondent furnished the requested material. After further correspondence and one meeting, the Union wrote to Respondent on August 22 that further study had confirmed its opinion that all the jobs originally put in question should be upgraded, and asked for a conference on the subject. At the conference, held on September 2, the discussion was confined to job 1202 which the parties had, in June, decided to focus on "as being representative of the total jobs that were involved in the dispute."' The Union contended that job 1202 should be increased to labor grade 15. The Respondent asked for time to study the matter. The Union agreed, but asked that the Respondent make its position known by September 15. On September 14, the Respondent sent the Union four job descriptions, with evaluation sheets, and an accompanying letter stating that it "proposed" to replace job 1202 with the four described jobs The Union thereupon filed arbitration demands with the American Arbitration Association, under article 8 of the contract, regarding the repairman classifications in grades 9, 12, 13, 14, and 15. The parties thereafter mutually selected an arbitrator and a hearing was set for December 14 and 15. On October 7, however, the Respondent sent the Union separate notifications of the establishment of four "new jobs," denominated 1218, 1219, 1312, and 1313, all of which were identical to the jobs "proposed" by the Respondent on September 14. The notification stated that the new jobs would take effect as of October 10. On October 14, counsel for the Union wrote to the Respondent stating, inter alia, that the Respondent had violated the National Labor Relations Act by unilaterally reclassifying job 1202; that the Union intended to file unfair labor practice charges; and that the Union would proceed with the arbitration of job 1202 only if the General Counsel refused to issue a complaint. On November 'In Respondent' s classification system, the last two digits of a designation indicate the job number , and the first one or two digits, as the case may be, refer to the labor grade assigned to that job 'This and other dates hereinafter refer to 1966 'The quoted testimony of Union Representative Franks , which not mentioned by the Trial Examiner, was uncontradicted 1, the Respondent increased the labor grades on two additional repairman's jobs, job 1504 being raised to grade 17, and job 1207 to grade 14. Notice of these actions, with job descriptions and substantiating data, was forwarded to the Union. As with the first set of changes, the Union again protested the right of Respondent unilaterally to reclassify jobs after the parties had agreed to submit the question of the appropriateness of the relevant labor grades to arbitration. The parties thereafter proceeded to arbitration of certain limited issues, specifically, the appropriateness of the labor grades in jobs 1218, 1219, 1312, 1313, and 1407, the accuracy of the job descriptions pertaining thereto, and the proper effective dates of those jobs and of job 1704. The parties withheld from arbitral decision the question of the validity of the procedure by which the jobs were created.' That undecided issue is before us, in the following form: did the Respondent violate Section 8(a)(5) by creating new repairman jobs and grades after the parties had agreed to arbitrate the accuracy of the old classifications from which the new classifications were developed? As a general rule, an employer is derelict in his bargaining obligation if he alters the established terms and conditions of employment without first notifying the representative of his employees, and, upon request, discussing the proposed change with that representative, Shoreline Enterprises of America, Inc., 117 NLRB 1619; Washington Suburban Lines, 114 NLRB 808. However, where the provisions of a collective-bargaining contract authorize the employer to take such action without notification and consultation, he does not violate Section 8(a)(5) by acting unilaterally. See Beacon Piece Dyeing and Finishing Co., Inc., 121 NLRB 953, 956. In the instant case, while conceding that the contract appears to empower Respondent to create new jobs whenever it desires, the General Counsel takes the position that an exercise of such contractual authority may not, as a matter of public policy, be countenanced where, as in the present situation , the parties had agreed to submit the matters in dispute to arbitration. General Counsel contends that allowing Respondent to first fix a subject of arbitration and then freely modify the structure of the problem to be arbitrated is so disruptive of orderly collective bargaining that it cannot be tolerated. The Union makes a similar contention and, alternatively, argues, as a matter of contract interpretation, that the Respondent is not authorized by article 8 to make such changes when arbitration has been set. Normally, aside from any charge of bargaining in bad faith, which is not an issue here, an employer's 'In an award issued on October 11, 1967, the arbitrator granted the Union' s grievance as to job 1218, upgrading it to labor grade 13, and denied the Union' s contentions that the other jobs should be further upgraded 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statutory duty is simply to give notice to and, if necessary, discuss with a union any proposed changes in working conditions. A union may, if it wishes, waive its right to such prior notice and either completely surrender the opportunity to have any say about such changes or provide, as it did here, for a post hoc procedure for expressing its disagreement. The fact is that the Union here clearly did accord the Respondent the right to "establish new jobs at any time" without preliminary consultation. The labor grades and job descriptions appropriate to such jobs could then be questioned by the Union through a procedural scheme terminating in arbitration. Manifestly, the Union was uninterested in prior consultation as long as the problems which arose from the establishment of new jobs could eventually be arbitrated. The General Counsel concedes this point, and his complaint and argument go not to the Respondent's failure to give notice of or discuss the job changes, which, in this context, would have been a meaningless procedure and diametrically opposed to that contemplated by the contract; he, rather, contests the Respondent's right to make such changes at a certain time; i.e., after the dispute over the original classification has been set for arbitration by agreement of the parties. The issue is, then, not whether Respondent was derelict in its Section 8(a)(5) duty to inform and consult, but whether it was forbidden by the Act to take the actions it did when it did. In our opinion, the clear and unequivocal language of the contract authorized the Respondent's conduct. Article 8.2 provides that the Respondent may "at any time .. . establish a new job." No exception is made for the pendency of arbitration, and we perceive no policy considerations impelling us to infer that such an exception must be recognized. Since the basic questions-what are the duties of the subject employees and how much should they be paid will be investigated and answered by the arbitrator to whom the parties have committed the argument, Respondent's "establishment" of the new jobs is of little moment to the real arbitral decision to be made.' In the circumstances described above, we conclude that Respondent did not breach its statutory duty to bargain by its establishment of new jobs after agreeing to arbitration. Furthermore, when we cast the facts in a light different from that presented to us by either of the parties, it would seem that the Respondent's actions of October 7 and November 1 were nothing more than simple compliance with the routine The arbitrator' s award reveals on its face that the new job classifications created by the Respondent from the jobs (1202, 1207, and 1504) which gave rise to the institution of the arbitral proceedings, in fact became the subject matter of the arbitration and were fully considered and passed upon by the arbitrator Thus, it is clear that Respondent' s actions did not delay or frustrate the desired arbitration of the evaluation of work performed by employees in these classifications requirements of article 8. We assume that since the Union's earlier letter of February 7 stated that it was written pursuant to article 8, it may properly be deemed to be a claim by the Union, under article 8.2, that "in its opinion a new job has been established" in each job category described therein. While it would then have been the Respondent's duty, pursuant to 8.2, to assign a labor grade and a job description to the alleged "new jobs" within 30 days, Respondent did not do so. However, it is evident that the Union fully acquiesced in Respondent's delay, and agreed instead to engage in the extracontractual informal conferences and studies on these matters which, the record shows, had become an established feature of the relationship between the parties. These preliminary negotiations continued until September, at which time the Union reaffirmed its original opinion as to the need for upgrading and filed its demands to arbitrate, again specifically pursuant to article 8. At this point, according to the scheme of article 8, the matters to be arbitrated would be the labor grades and job descriptions which should have been issued by the Respondent, pursuant to article 8.2, by March 7. Since Respondent, with the Union's acquiescence, had not previously done so, and since the arbitration formula in article 8 clearly contemplates that the matter to be referred to arbitration is the Respondent's evaluation, made after the Union has raised the question, of the appropriate grade and description for a particular job, the matter would not have been ripe for arbitration had Respondent not issued its determinations. It thus seems apparent that Respondent, proceeding in conformance with the Union's expressed understanding that article 8 governed its claims, was not merely entitled, but was in fact required, to take the final steps which would make article 8 arbitration possible. And if Respondent's actions in submitting these revised classifications were, as we have indicated, a necessary prelude to perfecting the Union's right to have the arbitration under article 8 which it desired, it can hardly be contended that Respondent engaged in unlawful unilateral action within the meaning of Section 8(a)(5). If the Respondent urges the preceding theory of the case at all, it is only inferentially. It would seem, however, that the legal context in which the facts before us arose compels the conclusion that the Respondent was both authorized and required to issue the disputed reclassifications. It thus appears to be irrelevant that Respondent does not argue that its actions of October 7 and November 1 were intended to perfect the case for arbitration. Since, as indicated in the foregoing analysis, we believe that the Respondent was under a contractual duty to submit, at some time before arbitration began, documents expressing its appraisal of the jobs put into question by the Union, it would seem that, whatever its intentions, Respondent cannot be held ZENITH RADIO CORPORATION 369 to have engaged in unlawful unilateral action by ^so doing. We conclude, therefore that the Respondent's conduct in this regard was not violative of Section 8(a)(5). Paragraph 7 of the Trial Examiner's Conclusions of Law is accordingly amended to read as follows: 7. By creating new job descriptions and labor grades to replace jobs 1202, 1207, and 1504, Respondent did not violate Section 8(a)(5) and (1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and orders that the Respondent, Zenith Radio Corporation, Zenith Sales Corporation, and Zenith Radio Distributing Corporation, Chicago, Illinois, their officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: It is hereby ordered that the complaint be, and it hereby is, dismissed insofar as it alleges conduct not herein specifically found to be unlawful. MEMBER BROWN , dissenting in part: I agree that Respondent violated its bargaining obligation when it refused to furnish the Union with specific relevant information concerning the proper classification of certain jobs. However, unlike my colleagues, I would dismiss the complaint respecting the establishment of new jobs. The parties' operative agreement fully deals with the subject matter of their dispute, and the contract is reasonably susceptible of the differing interpretations the parties urge in support of their respective positions. What is presented , therefore, is essentially a contract dispute . In these circumstances I agree with the Trial Examiner that the applicable portions of the complaint be dismissed without an adjudication of the contract issue." See my separate opinions in Boston Edison Co, 176 NLRB No. 132, and Cloverleaf Division ofAdams Dairy Co., 147 NLRB 1410, 1420-25. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPH I . NACHMAN, Trial Examiner: This complaint,' heard at Chicago, Illinois, on March 21 and 22, 1967, alleges that Zenith Radio Corporation, Zenith Sales Corporation, and Zenith Radio Distributing Corporation, together constituting a single-intergrated business enterprise (herein called Radio, Sales, and Distributing respectively, and collectively called Respondent or Company), refused to bargain with Independent Radionic Workers of America, herein called the Union, the recognized collective-bargaining representative of the employees involved, by (1) unilaterally placing into effect new job classifications, after having previously agreed on arbitration as the means for resolving the placement of said classifications; and (2) refusing to furnish the Union with information concerning the proper classification of other jobs, all in violation of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended . Respondent, by answer, admitted certain allegations of the complaint but denied the commission of any unfair labor practices. At the hearing, all parties were represented by counsel, and were afforded full opportunity to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally on the record, and to submit briefs. Oral argument was waived. Briefs submitted by the respective counsel have been duly considered. Upon the entire record, including my observation of the witnesses, I make the following: FINDINGS OF FACT2 The Unfair Labor Practices Alleged A. Background For more than 15 years the Union has been recognized by Respondent as the collective-bargaining representative of the employees in the units here involved, and successive labor contracts have been entered into between said parties. In May 1965, the parties began bargaining for a new contract to replace the then current contract scheduled to expire by its terms on June 30 , 1965. In these negotiations the parties bargained on the Union's claim that there was inequity in the classification or placement of approximately 85 jobs, and on a substantial number of these agreement was reached . However, on the day preceding the expiration of old contract, there remained 29 jobs, including specifically jobs 1202, 1207, and 1504, on which agreement had not been reached . Because the parties were in accord on most issues , the Union, to bring about a contract before July 1, 1965, proposed that it would withdraw from the bargaining table its demands with respect to the 29 jobs on which agreement had not been reached, if Respondent would agree that the Union's contentions with respect to the 29 jobs could be processed under article 8 of the contract (hereafter more fully discussed). Respondent agreed, and after the few remaining matters in issue were resolved, a contract was executed effective for a period of 3 years from July 1, 1965, and thereafter from year to year absent notice.' The contract of July 1, 1965, contains inter alia, the following provisions: ARTICLE 8. New Job Classifications in Exhibit "A" 8.1 It is recognized that from time to time there may be occasion to establish new jobs. It is agreed that the determination of the duties to be included in any job classification is the sole prerogative of the Company, subject to the rights of the Union set forth below to question the appropriateness of the labor grade or 'Issued January 30, 1967, on charges filed October 18, 1966, and amended December 13, 1966. 'The complaint alleges and the answer admits facts which establish that Respondent is engaged in commerce, and that the Union is a labor organization within the meaning of the Act. I find these facts to be as pleaded. Also, Respondent admits that the separate units at Radio, Sales, and Distributing, as alleged in the complaint, are appropriate . I so find. 'There was also a provision for reopening under conditions not here mentioned 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD accuracy of the job description . For the purpose of this Article 8, a new job shall be considered to be: 8.11 A job in which the duties are entirely different from those of any job classification included in Exhibit "A"; or 8.12 A job in which the duties performed under a job classification included in Exhibit "A" are changed to such a substantial degree that in relation to the levels of skill and other requirements which characterize the respective labor grades included in Exhibit "A" the job may properly be placed in either a higher or a lower labor grade; or 8.13 A job in which the duties consist of some formerly included in two or more other job classifications included in Exhibit "A" or 8.14 A job in which the duties performed under a job classification included in Exhibit "A" are changed to a sufficient extent to justify a new job description though the change in duties involves a level of skill and other requirements comparable to other job classifications in the same labor grade in which the job was classified prior to the change in duties. 8.15 In combining jobs, the Company will follow the policy of assigning duties within a job that require reasonably related skills and skill levels wherever this is possible. 8.2 At any time following the date of this agreement the Company may establish a new job as defined above or the Union may give written notice to the Company that in its opinion a new job has been established. In either case the Company agrees within thirty (30) days after establishment of a new job to assign it to an appropriate labor grade and to notify the Union of the applicable rate range, together with a job description and substantiating data on the evaluation for the new job. The Company and the Union agree that the Zenith Hourly Job Evaluation Plan, dated February 6, 1963, shall be the accepted plan by which the evaluation of a new job by the Company shall be determined, in order that the assignment of the new job to a labor grade shall be appropriate and consistent with the evaluation and labor grade of other jobs in Exhibit "A" of this Agreement which have a comparable level of skill and other job requirements . It is agreed that if within thirty (30) days from the date of such notification by the Company the Union does not file in writing with the Company any question concerning the appropriateness of the labor grade or the accuracy of the job description, such labor grade and job description shall be considered to have been accepted. A job description lists those duties that are essential to a job and are typical of its level of skill and responsibility. It is the Company' s intent that employees be assigned work consistent with their job description, and it is contrary to the Company's intent that they be given assignments completely foreign to their job description, especially when such assignments should be made to other employees who normally do such work. 8.21 Should the Union within such thirty (30) day period file in writing with the Company any objection to the labor grade and/or the accuracy of the job description, the Company and the Union shall then, within five (5) scheduled work days, confer with respect to settlement of such objection. 8.22 Should a different labor grade be agreed upon as a result of such conference, the new labor grade shall be effective as of the Monday following the date of the job established, provided, however, that the new labor grade shall be effective no earlier than thirty (30) days prior to the date the Union filed in writing with the Company the notice of objection. 8.23 Should the Union and the Company fail to reach an agreement through such conference either or both parties may, within ten (10) regularly scheduled work days from the date of conclusion of such conference, refer to arbitration the question of the appropriateness of the labor grade and/or the accuracy of the job description, in accordance with the provisions of Article 25 hereof. 8.3 All cases which come under the terms of this article are excluded from consideration under the terms of Article 24 "Grievance Procedure." It is understood and agreed, however, that where a new job is created by combining two or more jobs, or parts of two or more jobs, and where such new job jeopardizes the seniority standing of employees directly affected by establishment of the new job, then establishment of such new job shall be subject to the grievance procedure. 8.4 In any case filed under the terms of this article and then taken to arbitration, any question of retroactivity shall be limited to the provisions of Article 25. 8.5 If any claim under this Article 8 is referred to arbitration, the arbitrator's decision shall be governed by principles outlined as follows: 8.51 The assignment of the job to a labor grade shall be appropriate and consistent with the ranking into labor grades of other jobs in Exhibit "A" of this contract. The labor grade selected shall be that one in which the jobs already ranked have levels of skill and other job requirements comparable to those inherent in the job in question. 8.52 The combining of two or more jobs which have previously been in the same labor grade may, but would not necessarily, mean that placing such job in the same labor grade would be considered appropriate. 8.53 A new job created by combining two or more jobs, or parts of two or more jobs, may be placed in a higher, a lower, or the same labor grade of any former job involved, with the level of skills required and other job requirements being the determining factors. 8.6 If a departmental job audit discloses that either an employee or a job is misclassified, the Company will notify the Union promptly. ARTICLE 36. Term of Agreement. 36.1 . . . It is understood and agreed that Article 8 of this agreement provides the procedure for resolving questions of changes in wage rates of individual jobs, and that the negotiation of wage rates for individual yob classifications is specifically excluded from reopening negotiations as outlined in this paragraph. 36.5 This agreement represents complete collyctive bargaining and full agreement by the parties in respect to rates of pay, wages, hours of employment or other conditions of employment which shall prevail during the term hereof. Any subject matter not mentioned herein is hereby specifically waived and it is agreed that neither party will present any demands or claims not included W ZENITH RADIO CORPORATION herein during the life of this agreement, unless it is agreed by both parties that changes in or amendments to this agreement are desirable. However, it is agreed that demands or claims may be presented for negotiation in any instance involving the subject of the reduction of any of the following employee benefits in effect as of the date of this contract Group Life, Sickness and Accident Insurance, Blue Cross Plan for Hospital Care, Group Surgical Fee Benefits and In-Hospital Doctor Calls 36.51 Any past practice that is a deviation from the contract, whether the inception of such practice was prior to or after the effective date of this contract, shall not control and shall not be taken into account in construing the contract. Only the provisions of the contract shall control. B. The Current Facts 1. Alleged unilateral action as to new jobs On February 7,° the Union wrote Respondent requesting the upgrading of various repairman job classifications including those in labor grades 9, 12, and 15,5 claiming that the higher skills were now required to perform those jobs than was the case when the job classifications were originally written. The Union's demand closed with the statement: "We file this demand under Article No. 8 and any and all paragraphs and/or subparagraphs applicable to the demand." Covered by this request were the jobs here involved, namely jobs 1202, 1207, and 1504. Whether Respondent replied to this letter, the record does not disclose. In any event, on April 13, counsel for the Union wrote Respondent asking the latter to provide the Union with the most recent job descriptions and substantiating data evaluation sheets as to certain specified jobs, including specifically jobs 1202, 1207, and 1504, as well as the job description and substantiating data covering the group leaders,' which information, the letter stated, was necessary to enable the Union intelligently to fulfill its obligation under section 8 of the contract. On April 28, Respondent furnished the Union with the requested material, to the extent here material.' Following this exchange of material, the parties met on at least one occasion to discuss their problems, and several letters bearing thereon were exchanged. Thereafter, the Union wrote the Company, on August 22, that its study of the materials submitted with Respondent's letter of July 1, confirmed the Union's position that the jobs in question should be upgraded, and asked for a conference at the earliest possible date to discuss the subject. Such meeting was held on September 2. `This, and all dates hereafter mentioned are 1966 , unless otherwise stated 'In the job numbers herein referred to, the last two digits are the job number, while the first digit in cases of a three digit number, and the first two digits in case of a four digit number , refer to the labor grade `The letter also requested that Respondent permit Franks , a consulting engineer employed by a management consultant firm which the Union had retained, to have access to the plants to make an on sight study of the jobs mentioned in the Union's letter The Union concluded by stating that Frank's on sight study, and his expert opinion thereafter , was necessary to enable the Union to determine whether the Company's conclusions with respect to the jobs therein mentioned were proper , and whether a grievance should be filed pursuant to section 8 of the contract, in the event the parties reached an impass Respondent denied this request , as well as a renewal thereof in the Union's letter of May 9 However , in subsequent conferences between the parties, a form questionnaire was agreed on, 371 Discussion at the September 2, meeting was apparently confined to job 1202, the Union taking the position that job should be increased to labor grade 15. Respondent, while not agreeing with the Union, asked for time to study the matter. The Union agreed, but asked that the Company advise the Union of its position no later than September 15, and stated that if such proposals were satisfactory it would so notify the Company and the matter would be concluded; if unsatisfactory the conferences would be regarded as concluded, and the 10-day contractual period for invoking arbitration would begin to run as of the date the Union received such- response.' On September 14, the Company sent the Union, "as per our agreement," four job descriptions with evaluation data sheets for each, and which it "proposed" to replace job 1202 - class A repairman 'The Union, considering the Company's response unsatisfactory, filed with American Arbitration Association, separate arbitration demands, as provided in the contract, with respect to the repairman classifications in grades 9, 12, 13, 14, and 15, but suggested that as all the claims arise under article 8 of the contract, there should be a single arbitration to dispose of all issues. This suggestion was apparently accepted by Respondent. The American Arbitration Association by notice to the parties, confirmed the selection by them of Professor Arnold R. Webber as Arbitrator, and advised the parties that the hearing thereon would be held December 14 and 15. On October 7, the Company sent the Union separate notifications of the creation of four "new" jobs, with a job description and evaluation data sheet for each such job, which the Union was requested to approve. The new jobs were designated as 1218, 1219, 1312, and 1313. The notification stated that, in the opinion of the Company, the new job descriptions would more accurately reflect the duties and responsibilities of the incumbents than the 1202 description, and that the incumbents of that classification would be transferred to the new classifications, on a step basis, as of October 10. The parties stipulated that prior to the creation of the new jobs, there were 339 employees in the repairman classification in job 1202; after the creation of the new jobs, there wer• 103 employees in job 1218, 13 employees in job 1219, 152 employees in job 1312, and 74 employees in job 1313. Thus, the new jobs resulted in about two-thirds of the employees involved being raised from labor grade 12, to labor grade 13 which Respondent agreed to process on a sampling basis , and submit the completed questionnaires to Franks This was done, and there is no contention that this procedure did not give Franks the information necessary to enable him to provide the Union with an expert opinion 'As to two jobs, not here involved, the requested material was not supplied on the ground that said jobs had theretofore been withdrawn, in accordance with the procedures fixed by article 8 of the contract 'This is in accordance with the testimony of Union President Raetz, corroborated by Franks Browdy testified that no such statement was made I make no finding in that regard, and do not resolve the conflict, because in my view the testimony goes only to the question whether the Union envoked arbitration prematurely This question , were it still an issue between the parties, should be determined, at least mitialy by the Arbitrator, but as shown post, the timeliness of the arbitration demand has been waived 'The use of the word "proposed" in Respondent's letter, is difficult to understand Under the contract, as well as in practice , whenever the Company found it necessary to revise a job or create a new one, it acted unilaterally, merely advising the Union what it had done by sending it a job description and evaluation data sheet The new or revised job would become effective on a date fixed by the Company If the Union objected within a stated period, the contract provided for settlement of the differences by a conference, or by arbitration 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 14, the Union wrote the Company protesting the appropriateness of the labor grade and the accuracy of the job descriptions with respect to the 1218, 1219, 1312, and 1313 jobs, as well as the Company's unilateral action in reclassifying job 1202 at a time when the Union, in accordance with article 8 of the contract, had invoked arbitration proceedings which would include job 1202. The letter concluded by stating that the Union had filed an unfair labor practice charge with the Board, based on the aforementioned action of the Company, and that the Union would be willing to proceed with arbitration as to the 1202 job, only in the event the General Counsel refused to issue a complaint on the Union's unfair labor practice charge. On November 1, the Company notified the Union of two "Revised" jobs designated as 1407 and 1704, and submitted to it revised job descriptions and evaluation data sheets. The notification stated that these revised job descriptions more accurately reflected the duties and responsibilities of the incumbents in job 1207 and 1504, respectively, and that the incumbents of those jobs would be transferred, on a step basis, to 1407 and 1704 respectively, on November 7 The evidence does not show the number of employees involved in these jobs, but whatever the number, all employees placed in the revised jobs were raised two labor grades. Upon receipt of the Company's notices of November 1 with respect to jobs 1207 and 1504, the Union protested the right of the Company to unilaterally change terms and conditions of employment after the issue of the appropriate labor grade had, pursuant to the contract, been submitted to arbitration. However as to these two jobs the Union stated its purpose not to contest Respondent' s unilateral change because the revision was in accord with the Union' s original request for reclassification, but expressed the opinion that the change should, in accordance with the contract, be retroactive to January 8, and that if Respondent would so agree, all issues with respect to jobs 1207 and 1504 could be eliminated from the arbitration proceeding then scheduled for December 14 At the time of the hearing herein (March 21 and 22, 1967), the hearing in the arbitration proceeding had not been held, apparently because of the Union 's unwillingness to proceed in view of the issuance of the complaint herein by the General Counsel. On June 22, 1967, counsel for the Union and Respondent filed with me a joint motion that there be made a part of the record herein said motion and two documents attached to and made a part thereof, and consisting of (1) a preliminary opinion dated May 19, 1967, by Arbitrato: Arnold R Webber, and (2) an agreement, dated June 20, 1967, between Respondent and the Union.'" The preliminary opinion of Arbitrator Webber, above referred to, indicates that a preliminary hearing was held before him on May 12, 1967, with respect to job 1202; that Respondent argued that further processing of the arbitration proceeding should be held in abayance until the legal issues before the Board, as presented herein, are determined because issues of contract interpretation are common in both proceedings, and that proceeding at that time might result in a conflict between the decision of the arbitrator and that of the Board; that the Union, on the other hand, urged that arbitration proceed without awaiting a decision in the instant proceeding because the Board might give weight to the decision in the arbitration proceeding, but should a conflict between the two occur, questions of preemption or reconciliation can be decided at that time. The arbitrator, for reasons stated in his opinion, concluded that the parties should promptly proceed to hearing for the purposes of arbitration with respect to job 1202. Whether such arbitration hearing has yet been held, the record does not disclose The agreement between Respondent and the Union, attached to the joint motion, dated June 20, 1967, shows that Respondent and the Union have made the following commitments regarding the proceedings now pending before the Board and the arbitrator: 1. The appropriateness of the labor grade and/or the accuracy of the job descriptions are in issue before the arbitrator only with respect to jobs 1218, 1219, 1312, and 1313 (created by Respondent to replace job 1202), and job 1407 (created by Respondent to replace job 1207). 2. The only other issue before the arbitrator is the proper effective date, under the contract between the parties, of the jobs referred to in the proceeding paragraph, and job 1704 (created by Respondent to replace job 1504). 3. Neither party shall raise before the arbitrator any procedural objection including, but not limited to objections to the manner of creation of said jobs or the manner in which said jobs were brought to arbitration. 4. That the issues so submitted for arbitration cover all issues in the Union's demand for arbitration, dated September 20, 1966, and that no other part of said demand shall thereafter be arbitrable. 5. The Union withdraws that portion of the demand for arbitration which relates to jobs in labor grade 9, and will within 30 days from June 20, 1967, institute at step 3 of the grievance procedure provided for in the contract, any grievance it may have regarding the creation of jobs 925, 926, or 927, and that its failure to institute such grievance within the 30 day period shall constitute a waiver of its right to further process any grievance relating to the aforesaid three jobs." 2. Alleged failure to furnish information Among the 29 jobs concerning which the parties had not reached agreement when the 1965 contract was concluded, and which they agreed might be processed under article 8 of the contract, were jobs 715-05, 1305, and 815. Following execution of the contract, the Union requested the Company to study each of the aforementioned jobs in accordance with article 8 of the contract, with the view of obtaining a higher labor grade which, the Union urged, was called for by reason of the work performed by the employees involved. The facts with respect to these jobs are now set forth, jobs 715-05 and 1305 being discussed together because the facts are identical. a. Jobs 715-05 and 1305 Early in 1966, the Union formally requested a study of these fobs." Respondent agreed, and shortly thereafter notified the Union that the employees in these jobs were working within the framework of the respective job '"By letter dated June 22, 1967, the General Counsel advised me that he had been served with the aforesaid motion and documents attached thereto, and that while he could not join in said motion, he had no objection to the aforesaid material being made part of the record Accordingly, I grant the joint motion which, together with the attachments therein referred to, and the General Counsel's letter of June 22, 1967, 1 now make a part of the record herein "Whether any such grievance was filed by the Union within the 30 day period, is not disclosed by this record "These requests were dated March 21, with respect to job 715-05, and ZENITH RADIO CORPORATION descriptions and that there was no justification for a classification change. Thereafter a number of job conferences were held at which the Company agreed to, and did give positions urged by the Union further study By letter dated September 7, the Company reaffirmed its position that there had been no sufficient change in the duties and responsibilities to warrant reclassification." On September 9, the Union filed with the American Arbitration Association, its separate demands for arbitration." By letter dated September 12, the American Arbitration Association acknowledged the demand and advised the parties of its procedures. On September 22, the Union wrote the Company that it had filed the arbitration demand when it did to preserve its rights timewise, and that to properly evaluate the issues and determine whether to press the arbitration, the Company was asked to furnish as to each job: Copies of the data compiled during the course of the investigation which comprised the review of this job, and which caused the Company to determine that there had been no substantial change in the duties, responsibilities or content thereof, including but not limited to, the records of discussion with the [employees] and their supervisors, and the notes of the analyst Replying to this request on September 27, Respondent took the position that when it furnished the Union with the applicable job description and evaluation data sheet, it complied with its obligation to furnish information. On October 4, the Union wrote Respondent that it sought not only the job description and evaluation data sheets, but all written data which would include the written reports memoranda, etc., of the analyst's concerning their discussions of the job with the incumbents and supervisors, as well as the written reports, notes, etc., of the analyst's observations of the job, as well as all other relevant written material, and asked that in the event such material did not exist, Respondent should so advise. Replying on October 7, to the last mentioned request of the union, Respondent stated: . . The Company declines to release any internal or inter-departmental correspondence and reports which may have been prepared by subordinates regarding the classification[s] in question, .. . b. Job 815 Coil Quality Technician The Union's request for a study of this job pursuant to article 8 of the contract, was made on February 24. After making the requested study, the Company, on March 21, wrote the Union that the employees involved were working in accordance with their job description, and that it found no justification for any change in labor grade. Over the next several months there were a number of conferences at which the Union supplied certain information and the parties discussed their respective contentions At one of the final meetings, the Company April 5, with respect to job 1305 Each letter stated that the request was made pursuant to article 8 of the contract "The Company at this time revised the job description of job 715-05 to include the elements of dismounting and certain material handling functions, not theretofore mentioned in the job description, but concluded that this change was not sufficiently substantial to require reclassification "The separate demands stated that the Union, "referred to arbitration the question of the appropriateness of the labor grade and/or the accuracy of the job description [of the specific fob] in accordance with the provisions of Article 8 and 25 of the Agreement " 373 agreed to give consideration to raising the point value of certain elements of the job, and advise the Union when a decision was reached By letter of September 13, Respondent notified the Union of its final position that while the point value of certain elements of the job has been raised, this did not result in a sufficient change to warrant an increase in labor grade. On September 21, the Union sent its demand for arbitration to American Arbitration Association, and the latter on September 22, notified the parties of its procedures." On October 5, the Union wrote Respondent that its arbitration demand was filed to preserve its rights, and that to enable the Union to determine whether arbitration should be pursued, we request that you provide us with the substantiating data which comprised your investigation of this job and caused the Company to conclude that it did not warrant an increased grade level consideration. The data should include, but is not limited to, the elements of Company Job No. 815 with job numbers 814 and 1013 and answers to questions posed to employees and supervisors. The Company replied that in previous correspondence and discussion, it had given the Union Respondent's reasons for not upgrading the job, and that . you have in your possession the 815 evaluation data sheet which was revised after additional investigation of the job. You also have "spread" sheets which were prepared by the Company comparing the evaluation data for Jobs 814, 815, 1010 and 1013 All this material was discussed in detail in our conferences on this job. In the meanwhile, the arbitration hearing on this job was scheduled for January 3, 1967. On December 16, Union counsel wrote the Company that he had been informed by personnel in the Board's Regional Office that Respondent had stated that it did not have any of the information requested in the Union's letter of October 5 The letter concluded- accordingly, the Union has reevaluated the information in its possession with reference to Job No. 815 and reaffirms its belief that the matter merits arbitration. Therefore, the Union will be prepared to proceed with the arbitration scheduled for the 3rd of January. At the arbitration hearing on January 3, it developed that job analyst Kusmider, who in the course of his duties had observed performance of this job and interviewed the job incumbents and their supervisors, had in his possession notes that he made while performing his aforesaid duties The notes were delivered to the arbitrator, and apparently a copy was given to the Union's counsel." Kusmider testified that a day or two after completing his investigation, he reported the results of his investigation orally to his superior," that he had his notes before him when he made that report; that his superior was aware of that fact; and that he then kept the notes in his personal file.1e Kusmider also testified that after his oral report to "The Union 's arbitration demand stated that it refers to arbitration the question of the appropriateness of the labor grade and/or the accuracy of the job description of Job No 815 "A copy of said notes, identified as General Counsel's Exhibit 4 was received in evidence in this proceeding "Jerad Browdy, supervisor of wage and salary administration "Some evidence was taken on the question whether Browdy was aware of the existance of Kusmider' s notes when Respondent received the Union's demand of October 5 Browdy testified that while it is not required, he prefers that his analyst make notes on investigations, rather 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Browdy, he made a written report on job 815, but when this was done, the record does not disclose. At the time of the hearing before me, the arbitrator' s decision on this job had not issued." C Contentions and Concluding Findings Although conceding that Respondent had the right under article 8 of the contract, to unilaterally create new jobs, subject only to the Union's right to grieve with respect thereto if it so elected, which grievance, if filed, would be resolved by final arbitration, it is the position of the General Counsel and the Union that once arbitration was envoked with respect to a particular job, the Company's rights under article 8, with respect to that job, are exhausted. From this premise it is argued that the Union having envoked arbitration with respect to jobs 1202, 1207, and 1504, Respondent's subsequent action in replacing those jobs with new jobs , 20 constituted unilateral action proscribed by Section 8(a)(5). The General Counsel and the Union further argue that by failing and refusing to furnish the Union with relevant information in its possession, which was necessary or at least helpful to the Union in deciding whether to proceed further with arbitration as to jobs 715-05, 815, and 1305, Respondent violated its bargaining obligation. As to the first mentioned aspect of the case, Respondent argues, relying on the strict language of the contract , that the agreement vests in it the absolute right to create new jobs unilaterally at any time it sees fit, and that it has done nothing to indicate an agreement on its part that its right to create new jobs is in any way limited by the Union's right to invoke arbitration. On the alleged failure to furnish information aspect of the case, Respondent argues (1) that as article 8.2 of the contract only requires the Company to provide the Union with a job description and evaluation data sheet (information which it supplied with respect to each job), the Union waived its right to any further information; and (2) that in any event, at some time and than rely on memory , and that frequently the analyst will give him a written report on the results of the investigation In view of the position Respondent took on the other two jobs , namely, that no intra office material would be produced, and Browdy's admissions that the Company had in its files a memorandum dated August 4, from analyst Klouthis regarding his findings with respect to job 715-05, and a memorandum dated August 4, from analyst Francis regarding his findings with respect to job 1305, 1 find it unnecessary to make any finding as to whether Browdy was aware of the existance of Kusmider's notes and whether Respondent's failure to produce them prior to the arbitration hearing was deliberate or inadvertent "Attached to the brief submitted by counsel for the Union , was a copy of the arbitrator ' s opinion and award , dated April 8, 1967, which awards that with respect to Job 815, ( 1) there has been no change of a substantial degree with respect to the factors of physical demand and job hazard, (2) no reevaluation of the factor responsibility for the work of others, is required , and (3) there have been duty changes of a substantial degree with respect to evaluation of factors experience , dexterity , sensory effort, and responsibility for material or product, which may or may not require an upward reevaluation The award directs the parties to negotiate and agree on proper current evaluations of the factors mentioned, and if that is not possible, the issues with respect thereto should be returned to the arbitrator for further hearing and decision Whether a further hearing of the kind contemplated by the arbitrator has been held , is not disclosed by the record Following receipt of the briefs filed by the parties , Respondent filed with me a motion to strike the Union ' s brief because of alleged misstatements, and the attachment of the arbitrators award which, it asserts, is not a part of the record before me I regard the so called Motion as reply brief, not provided for by the Board 's rules In any event, I do not regard the arbitrator's award as evidence before me , but merely as a citation of authority which the Union, correctly or incorrectly believes to be pertinent to the issues Accordingly, I deny said motion in some form, it supplied the Union with all information the latter sought, and which Respondent had, relating to the jobs involved. I proceed now to a consideration of these contentions. 1. The issues with respect to the new jobs A decision on the merits on this aspect of the case, of course, requires an interpretation of article 8 of the contract. While the Board has the authority to interpret collective-bargaining agreements to determine whether an unfair labor practice was committed (See N.L.R.B v. C & C Plywood Corp., 385 U.S. 421), it has for many years, as a matter of policy, held that where the parties have by their contract established grievance and arbitration machinery to resolve disputes concerning its interpretation and administration , which the parties do not utilize, but instead file charges with the Board, and the conduct with which the employer is charged is not a part of a conscious campaign designed to undermine the authority and prestige of the Union, or to evade the employer's bargaining obligation, the policies of the Act to encourage free collective bargaining would best be served by leaving the parties to pursue the contractually established procedure for the resolution of disputes arising from the interpretation or administration of their contract, and withhold decision as to whether the employer's conduct constitutes an unfair labor practice.21 I am persuaded for reasons hereafter stated, that Crown Zellerback, supra, and the cases above cited, control here, and that this aspect of the complaint should be dismissed without deciding whether, as the General Counsel and the Union contend, an unfair labor practice was committed when Respondent, after arbitration had been invoked with respect to jobs 1202, 1207, and 1504, created new jobs to replace those which had been made the subject of arbitration. The following considerations, in "Jobs 1218, 1219, 1312, and 1313 were created to replace job 1202, and jobs 1407 and 1704 were created to replace jobs 1207 and 1504, respectively "See Consolidated Aircraft Corporation, 47 NLRB 694, 706, enfd 141 F 2d 785 (C A 9), Crown Zellerback Corporation, 95 NLRB 753, United Telephone Company, 112 NLRB 779, 781 , National Dairy Products, 126 NLRB 434, 435, Montgomery Ward & Co, 137 NLRB 418, 432 In Crown Zellerback, supra, the Board, after pointing out that the parties in that case had a contractually established procedure for disposition of disputes as to proper interpretation of the contract , which the Union failed to utilize but instead invoked the process of the Board, and that the employer's conduct was not part of a campaign to undermine the prestige of the Union, or to evade the employee' s bargaining obligation, said (at 754) In view of this background of a peaceful and what appears to be a wholly salutary employer-employee relationship , we are reluctant to issue a remedial collective-bargaining order as a result of the Respondent's isolated unilateral action Particularly is this so since the parties have failed to utilize the contractual procedures established for bargaining concerning the interpretation and administration of their contract, and where there is apparently no serious obstacle to an amicable settlement of the issue through bargaining within the framework provided in that contract Indeed , the Board has frequently stated that the stability of labor relations which the statute seeks to accomplish through the encouragement of the collective bargaining process ultimately depends upon the channelization of the collective bargaining relationship within the procedures of a collective bargaining agreement By encouraging the utilization of such procedures in this case, we believe that statutory policy will best be effectuated Affirmative Board action would on the other hand put he Board in the position of policing collective bargaining agreements , a role we are unwilling to assume Accordingly, we shall dismiss the complaint without determining whether the Respondent's conduct would, under other circumstances, warrant the issuance of a remedial order ZENITH RADIO CORPORATION my view, dictate this conclusion: 1. The dispute here is clearly one involving interpretation of article 8 of the contract, and that article provides that machinery for resolving such disputes, namely the arbitration process, which the Union invoked. 2. The Company and the Union have a history of long and harmoneous relations. 3. There is no evidence of union animus on the part of Respondent, or that its conduct was part of a campaign designed to evade its bargaining obligation, or to undermine the authority and prestige of the Union as the representative of the employees. 4. Although Respondent claimed that the Union had improperly invoked arbitration, and reserved the right to so argue in the arbitration proceeding, it did not refuse to participate therein. On the contrary, it was the Union that refused to so proceed unless the General Counsel declined to issue a complaint on the instant charge. In any event, in view of the stipulation filed with me after the close of the hearing (supra), it is clear that the parties have or will proceed with the arbitration to the conclusion contemplated by their contractually established procedure. 22 5. Assuming that a violation of Section 8(a)(5) of the Act were to be found, the only meaningful remedy, under the circumstances here, would be to require Respondent to disestablish the new jobs and restore those which they replaced.23 This would result in reduced labor grades to a substantial number of employees, and is hardly the kind of an event which can be expected to stabilize labor relations and encourage private collective bargaining - the principle objective of the Act. For the reasons stated, I find and conclude that it would not effectuate the policies of the Act to hold, that on this aspect of the case, Respondent refused to bargain with the Union within the meaning of Section 8(a)(5) of the Act. Accordingly, I recommend that the complaint to the extent that it alleges that Respondent violated Section 8(a)(5) by unilaterally creating new jobs, be dismissed. 2. Refusal to furnish information The law is well settled that Section 8 (a)(5) and 8(d) of the Act impose on an employer the obligation to supply a bargaining representative , upon request, with information which is relevant and reasonably necessary to the intelligent discharge of the latter' s functions as such representative. N.L.R.B. v. Truitt Mfg. Co., 351 U.S. "Danner Press, Inc, 153 NLRB 1092, C & C Plywood Corporation, 148 NLRB 414, and Huttig Sash and Door Company, Incorporated, 154 NLRB 811, 1 find distinguishable on the facts In Danner Press, supra, although the Union invoked the contractually agreed -upon arbitration procedure, the employer frustrated such efforts and refused to proceed in accordance therewith . In C & C Plywood, supra, the contract between the parties did not contain provisions for the settlement of disputes , hence no settlement thereof was possible , except through litigation In Huttig Sash and Door, supra , although the contract contained grievance and arbitration provisions, such provisions were not envoked by either party, and because of the nature of the violation the Board apparently concluded that the policies of the Act would best be effectuated by interpreting the contract ann deciding whether a violation of Sec. 8(a)(5) had occurred, and if so, to provide a remedy therefor . Here, as I have found, the parties have agreed to proceed with arbitration and to be bound by the results thereof. In that posture, in the circumstances of this case , as I have concluded, it would not effectuate the policies of the Act for the Board to intervene "Certainly an order which merely directed Responent to bargain with the Union relative to those jobs, assuming such an order legally permissible under the facts of this case , would have little, if any practical ,effect, in resolving the dispute. 375 149; N.L.R.B. v. Acme Industrial Co., 385 U.S. 432, 436, and the cases there cited. With respect to the three jobs involved in this aspect of the case, 24 the Union had asked Respondent to review those jobs with a view to increase the labor grade. In the course of Respondent's investigation, an analyst spoke with some job incumbents and their supervisors, and personally observed employees involved perform their duties, making notes as to what they saw and heard that they regarded as relevant. The information so gathered was reported by the analyst, to Jerad Browdy, Respondent's supervisor of wage and salary administration. In the instant case the reports dealing with jobs 715-05 and 1305, were in writing and are preserved as part of the Company's files. While the report as to job 815 was oral, the notes which the analysts are encouraged to make, he preserved in his personal file. Browdy, upon receipt of information given him by an analyst, and after the requisite conferences within his organization and the preparation of a job description and substantiating data sheet, signs those documents and transmits them to the Union for the latter's post audit, as provided in article 8 of the contract. After Browdy advised the Union that the three jobs in question had been studied, and that no basis existed for increasing the labor grade, the Union filed its separate requests for arbitration with respect to the proper labor grade of these jobs. At the same time it wrote Respondent, that the request for arbitration was filed at that time to comply with the time limitations of the contractual arbitration provisions, and that to enable the Union to evaluate the issues and determine whether to proceed with arbitration, it asked to be supplied with the data compiled by Respondent in the course of its investigation, and which caused it to conclude that a change in labor grade was not warranted, including specifically, records of discussions with employees and their supervisors and notes of the analysts. That Respondent preserved at least some material of this nature is not only admitted, but is made clear by its final reply to the Union's request, declining to furnish same. The only issue, therefore, is whether, under the circumstances of the case, such refusal was justified. In support of its position Respondent urges (1) the information which the Union requested, and which Respondent failed to furnish, is not relevant to the issues; 25 (2) that in the bargaining negotiations leading to the current contract, the Union waived its right to the information it requested;` (3) that Respondent's "Jobs 715-05,815, and 1305 "The alleged irrelevance is that there is no dispute between the parties as to the actual work performed by the job incumbants involved the dispute being the proper labor grade to be assigned to employees performing that work the documents requested by the Union would be of no value to it in deciding whether to proceed with the arbitration "Respondent argues that during the negotiations the Union proposed that article 8.2 be worded so as to require the Company, when it established a new job, to furnish the Union, in addition to a job description , 'full information and substantiating data sheets on the evaluations for the new job" but that the contract as executed calls only for a job description "and substantiating data on the evaluation for the new job." Respondent points also to article 24 of the contract, which applies to grievances generally, as distinguished from article 8 which applies only to grievances concerning labor grade and job descriptions, that article 24.6 provides that "The Company and the Union will make available to each other all pertinent know information with respect to a grievance." (Emphasis supplied.) Based on the difference in the language use in article 8, from that used in article 24, it is urged, that the Union waived any right it may otherwise have had to the information here involved There is no evidence to indicate the reasons for the change in 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obligation to furnish information under article 8.2 of the contract arose only with respect to a "new job" and that neither job 815 or 1305 involved "new jobs";27 and (4) that by the job descriptions and substantiating data sheets, by oral statements during meetings, and by permitting union representative to observe the job incumbents and conduct on the job interviews, the Union obtained all the information it sought, and that there is no obligation on an employer to furnish information in the exact form requested by a union. Treating with these contentions in the order stated, I find them to be without merit. As the Court of Appeals for the Second Circuit stated in Fafnir Bearing Company v. N.L.R.B., 362 F.2d 716, 721, and which was quoted with approval in N.L.R B v. Acme Industrial Co., supra, in the arbitral process neither party should be required "to play a game of blind man bluff." Full information should be available to either party so that it may be determined whether to invoke the arbitral process, or if theretofore invoked whether to proceed further with it. For if all claims as which a grievance is invoked had to processed through arbitration without an opportunity to fully and intelligently evaluate the merits of the claim, not only would the parties be put to the expense and effort of prosecuting and defending unmeritious claims, but the system would become overburdened. N.L.R.B v. Acme Industrial Co., supra Whether the notes of the analysts and other memoranda requested by the Union in this case would ultimately prove valuable to the Union, is beside the point. The material certainly related to the basis for Respondent's conclusion that the facts did not justify upgrading of the jobs involved, and is, therefore, relevant to the issue posed to the arbitrator. This is sufficient, absent a showing of justification, to impose on Respondent the duty to supply the information requested by the Union. Standard Oil Company of California, Western Operations, Inc., 166 NLRB No. 45. In this connection it is relevant to note that Browdy admitted the analyst's report is relevant to his determination as to the proper classification of a job, and that he relies on it, at least in part, for that purpose. And Witness Franks, a consulting engineer whose firm had been retained by the Union to advise it with respect to the job classifications, and whose education and experience in that field certainly qualify him as an expert, testified that the notes of the analysts would have been helpful to him in advising the Union whether it should proceed to arbitration on these jobs, because they contained diagrams and were made on the spot while the people involved were performing their work. Nor am I able to agree with Respondent's contention that the contract provisions demonstrate that the Union waived its right to the information it sought. It is true article 24, which relates to grievances generally, and which is admittedly not applicable here, provided that in cases arising under that article the parties will make available to each other "all pertinent known information," while article 8 only requires notice of a new job and its rate range, together with a job description and substantiating data sheet. It is also true that at some point (the exact time not being shown by the record), the Union had proposed language for article 8.2 of the contract which would have required the Company to supply "full information," but Section 8.2 as finally agreed on, only requires the Company to produce the material above language, at what point in the negotiations or under what circumstances it was made, or just what the parties had in mind "Respondent concedes in its brief that job 715-05 was a "new job" within the meaning of article 8 indicated The record is silent as to what discussion there was between the parties relating to those differences, or what the parties had in mind. There is, therefore, no showing that the Union's right to information which may be of assistance to it in deciding whether arbitration under article 8 of the contract should be invoked, or having been invoked should be further processed, was "fully discussed or conciously explored" by the parties, or that the Union "conciously yielded and unmistabably waived its interest in the matter." Proctor Manufacturing Corporation, 131 NLRB 1166, 1169. See also N.L R.B. v Perkins Machine Company, 326 F.2d 488 (C.A. 1); Press Company, Incorporated, 121 NLRB 976, and the cases there cited. Accordingly, I find and conclude that the Union did not contractually waive its right to the information here sought. The contention that the Union improperly invoked arbitration with respect to jobs 815 and 1305, because they were not "new jobs" subject to the provisions of article 8 of the contract, raises a question of contract interpretation which should be resolved, at least initially by the arbitrator. As shown supra, footnote 19, the arbitrator took jurisdiction of the dispute with respect to job 815, and made an award.28 Finally, I must and do reject the contention that Respondent has, in one form or another, fully complied with the Union's request for information I agree with the proposition that an employer is not required to furnish information in the precise form requested by a union, but in the instant case, I find and conclude that Respondent failed to furnish in any form, some information legitimately requested by the Union.39 The fact that Respondent permitted representatives of the Union to observe the work of the incumbents, and conduct on the job interviews, did not necessarily give the Union the same information that would be available to it if it had the benefit of the notes of Respondent's analysts and the views expressed in memoranda as to the reasons for Respondent's conclusion that the jobs in question were properly evaluated. With this information in hand the Union could better determine whether to proceed with the arbitration it had theretofore invoked. The fact that no dispute between the parties as to the duties actually performed by the employees involved is shown to exist does not negate the fact that the notes of its analysts and other memorandums requested by the Union, and which Respondent admittedly refused to furnish, would be of assistance to the Union in determining whether to proceed with the arbitration as to the jobs involved, for the inferences to be drawn from admitted facts are often as important as the facts themselves. Accordingly, and for the reasons stated, I find and conclude that by failing to comply with the Union's request for data, as above set forth, Respondent refused to bargain with the Union in violation of Section 8(a)(5) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce "The award does not deal with this issue I must assume, therefore, that Respondent waived the point, or that the arbitrator impliedly found it to be without merit "Respondent ' s contention that its obligation to furnish information is limited to the job description and the substantiating data sheet , has been considered and disposed of supra ZENITH RADIO CORPORATION 377 within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All hourly rated factory employees employed by Zenith Radio Corporation, Zenith Sales Corporation, respectively, and all hourly rated employees of the service department and warehouse of Zenith Radio Distributing Corporation, excluding, in each instance, all office and clerical employees, electricians, operating engineers, office janitors, toolroom and model shop employees, guards and supervisors as defined in the Act, constitute separate units appropriate for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 4 Since 1952, and at all times thereafter, the Union has been, and is now , the collective-bargaining representative of the employees in each of the aforementioned separate units, for the purpose of collective bargaining within the meaning of Section 9(a) of the Act 5 By failing and refusing to furnish the Union with certain information requested by the latter, as set forth in section B, 2, a and b hereof, Respondent refused to bargain collectively with the Union, and interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act, and thereby engaged in and is engaging in unfair labor practices, proscribed by Section 8(a)(5) and (1) 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. 7. The policies of the Act would best be effectuated by withholding determination on the question whether Respondent's action in unilaterally creating new jobs to replace jobs 1202, 1207, and 1504, was an unfair labor practice proscribed by Section 8(a)(5) and (1) of the Act, and dismissing the allegations of the complaint in that regard THE REMEDY Having found that Respondent violated Section 8(a)(5) and (1) of the Act, it will be required to cease and desist therefrom, or from any like or related conduct, and to take affirmative action designed and found necessary to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(5) of the Act by refusing to furnish the Union with certain information requested by the latter, to aid it in determining whether or not it should proceed further with a pending arbitration proceeding involving jobs 715-05, 815, and 1305, I shall recommend that Respondent be ordered, upon request, to supply such information to the Union, to the extent that it has not heretofore done So. 3" RECOMMENDED ORDER Upon 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, it is recommended that the National Labor Relations Board order that Zenith Radio Corporation, Zenith Sales Corporation, and Zenith Radio Distributing Corporation, their officers, agents, successors, and assigns, shall: The Union having been furnished with the notes made by analyst Kusmider relating to job 815 , Respondent will not be required to furnish that material again 1. Cease and desist from: (a) Refusing to bargain collectively with Independent Radionic Workers of America, by refusing, upon request, to furnish information relating to jobs which are, or may be, the subject of an arbitration proceeding, where the information so requested is of a nature that it might be useful to said labor organization in determining whether or not it should institute an arbitration proceeding or proceed further therewith. (b) In any like or related manner interfering with the efforts of said labor organization to bargain collectively on behalf of the employees in the units herein found appropriate 2. Take the following affirmative action designed and found necessary to effectuate the policies of the aforesaid Act (a) Bargain collectively with the aforesaid labor organization by furnishing it, upon request, with the material requested by the latter with respect to jobs 715-05, 815, and 1305, to the extent that such information was not heretofore supplied (b) Post at their plants in Chicago, Illinois, copies of the attached notice marked "Appendix."" Copies of said notice, on forms furnished by the Regional Director of Region 13 (Chicago, Illinois), after being duly signed by authorized representatives, shall be posted immediately upon receipt thereof, and shall be so maintained for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the aforesaid Regional Director , in writing, within 20 days from the date of this Decision , what steps they have taken to comply herewith 32 "In the event that this Recommended Order is 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 is 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 is 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 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 order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with Independent Radionic Workers of America, by refusing, after request by said Union, to furnish information relating to jobs which are the subject of an arbitration proceeding, where the information so requested is of a nature that it might be useful to said Union in deciding whether or not to institute or proceed further with an arbitration proceeding. WE WILL NOT in any like or related manner interfere with the efforts of said Union to bargain collectively on behalf of the employees covered by our collective-bargaining agreement. 378 WE WILL bargain collectively with the aforesaid Union by furnishing it, upon request, with the material requested by the Union with respect to jobs 715-05, 815, and 1305, to the extent that such information was not heretofore supplied. The appropriate units are. All hourly rated factory employees employed by Zenith Radio Corporation, Zenith Sales Corporation, respectively, and all hourly rated employees of the service department and warehouse of Zenith Radio Distributing Corporation, excluding, in each case, all office and clerical employees, electricians, operating engineers, office janitors, toolroom and model shop employees, guards and supervisors as defined in the Act. DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dated By Dated By ZENITH SALES CORPORATION (Employer) (Representative) (Title) ZENITH RADIO AND DISTRIBUTING CORPORATION (Employer) (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, 881 U.S. Courthouse and Federal Building, 219 South Dearborn Street, Chicago, Illinois, 60604 Telephone 828-7570 ZENITH RADIO CORPORATION (Employer) Dated By (Representative) (Title)