Local 445, Electrical Workers

LOCAL 445, ELECTRICAL WORKERS 183 Local 445, International Union of Electrical, Radio and Machine Workers, AFL-CIO and Sperry Systems Management Division , Sperry Rand Cor- poration. Case 29-CB-1019 March 5, 1973 DECISION AND ORDER On July 12, 1972, Administrative Law Judge 1 Paul Bisgyer issued the attached Decision in this proceed- ing. Thereafter, the General Counsel and Respon- dent filed exceptions and supporting briefs. The Respondent filed a brief in support of the Decision. On September 11, 1972, oral argument was heard. The Board has considered the record and the attached Decision in light of the exceptions, briefs, and oral argument and has decided to affirm the rulings, findings, and conclusions of the Administra- tive Law Judge to the extent consistent herewith and to adopt his recommended Order. Respondent Union is the exclusive bargaining representative in a unit of technical employees in the metropolitan area of New York City employed by Sperry Systems Management Division, Sperry Rand Corporation (hereinafter called the Company). Article I of the collective-bargaining agreement in effect at all times relevant hereto reads as follows: This Agreement shall apply to all plants now operated by the Employer, its successors or assigns, wherever situated. In the event any nonsupervisory (except engineers) employees within the IUE bargaining units of the Company are transferred to a location other than a plant now operated by the Company, any additional personnel hired at such location to work with such transferred employees in bargaining unit jobs, as hereinafter described, shall be covered by the terms of this Agreement. In the spring of 1970, while this agreement was in effect, the Company commenced operations in a new facility in Vallejo, California, where it employed, among others, three individuals who performed the same type of drafting work as that done by technical employees in the New York bargaining unit. No technical employee in the contract unit, however, was transferred to the Vallejo facility. The Union became aware that drafting work was being per- formed at Vallejo and from its own investigation concluded that certain employees at Vallejo were classified under different job titles than New York draftsmen and that they were being paid lower wage rates and other economic benefits than the New York employees for performing essentially the same work. The Union also learned that the Company was contemplating some further expansion of the Vallejo operation. The Respondent Union thereupon filed a grievance under the New York contract claiming a violation of the above-quoted article I. The Company denied the grievance on the ground that no nonsupervisory employees within the New York unit had been transferred to Vallejo and thus asserted that the clause had no application to the Vallejo facility. The grievance was subsequently submitted to arbitration. The arbitrator held that there was insufficient evidence to warrant a finding that the Vallejo facility was an accretion to the New York unit and that it was thus improper to direct the Company to apply the New York contract to the technical personnel at Vallejo, since such a ruling would require the Company to commit an unfair labor practice. On the other hand, he concluded that it was his obligation to require compliance with article I of the New York contract "to the extent that it would be legal to apply the contract terms agreed upon by the parties." He therefore held that article I should be applied to the extent that the technical personnel per- forming drafting work at the Vallejo plant shall be governed by the same wages and other terms of employment as set forth in the Local 445 Agreement (but excluding any union shop or representation clauses), retroactive to June 5, 1970. Thereafter, Respondent attempted to secure com- pliance with the award, explaining that under its view of the award, the Company was not precluded from granting Vallejo employees better wages or terms of employment than those applicable in the New York unit, but that it would object to the Company's paying employees in Vallejo lower rates and benefits than those applicable in New York. The Respondent explained that the purpose of such union objections was to preserve job opportunities in the New York unit and to discourage the hiring of new employees at lower rates in Vallejo to perform the same type of work being done in New York. At about this same time, Respondent attempted to organize the clerical and drafting employees. The attempt failed when a majority of the Vallejo employees voted against union representation in an NLRB election. At various times, the Union de- manded that certain specific action should be taken in compliance with the Respondent's understanding of the arbitration award, including requesting that a Vallejo technician be reimbursed for certain tuition expenses in the manner specified by the New York contract, that certain Vallejo employees be reclassi- I The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 202 NLRB No. 18 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fied -to conform to the New York contract classifica- tions and their pay scales be adjusted accordingly, and that certain employees laid off at Vallejo be recalled (Respondent asserting that they had been improperly laid off under the contract). Certain other request were also made which, in general, would have required the Company to conform Vallejo wages, severance, vacation, sick pay, pension con- tributions, overtime payments, and the like, to the New York agreement's terms. Respondent ultimately filed a comprehensive grievance relating to these matters and requested arbitration when the grievance was denied. The Company denied all of the demands and grievances of the Union relating to the Vallejo employees and also filed a legal proceeding in the New York courts protesting the arbitration award and seeking to have it modified . It met with at least initial success in this proceeding, in that the trial court held that the arbitrator had both exceeded the scope of his authority and had directed a remedy which would cause the Company to violate the National Labor Relations Act. The trial court's decision is now on appeal and any decision of the appellate court has been stayed pending the outcome of the instant proceeding before this Board. Meanwhile, Respondent has continued to pursue its demands that the Company comply with the arbitration award and also filed the grievance above mentioned which it has sought to arbitrate. The Company has denied all of Respondent's requests and grievances arising out of the arbitration award and has filed the charge herein , claiming that Respondent's demands with respect to Vallejo employees violated Section 8(b)(3) of our Act. General Counsel asserts that the Union's attempts to secure compliance with the arbitration award, including its filing of grievances relating to Vallejo employees, violate Section 8(b)(3) of the Act. General Counsel further contends that the Respon- dent's persistent demands that the Company honor the award and the Respondent's submission of the Company's noncompliance to the contractual griev- ance arbitration procedures constituted attempts to secure recognition and to bargain as the exclusive representative of the Vallejo technicians in an enlarged inappropriate unit resulting from the addition of those employees to the previously certified contract unit . General Counsel has not specifically attacked the validity of the arbitration award but the Company argues that the award itself is in irreconcilable conflict with our Act. In support of their position, both the General Counsel and the Company rely principally on Smith Steel Workers Directly Affiliated Labor Union 19806, AFL-CIO (A.O. Smith Corporation), 174 NLRB 235,enfd . impart sub nom. Smith Steel Workers v. A. 0. Smith, 420 F.2d 1 (C.A. 7). Respondent contends that its actions were not intended to achieve unlawful recognition, but rather were taken in furtherance of Respondent's legitimate interests to preserve job opportunities for New York employees by preventing the Company from estab- lishing plants with inferior terms and conditions of employment to which drafting work could be diverted from New York. The Administrative Law Judge recommended that the complaint be dismissed, finding that the charge of unlawful refusal to bargain was unsubstantiated by the evidence. He held that Respondent had merely pursued peaceful and orderly means to prevent what it reasonably regarded as company action which could result in a diversion of unit work from a New York plant to the lower paying Vallejo facility. He found Respondent's interests in such matters legitimate in that it related to the preserva- tion of unit work. He further found that the arbitration award was not repugnant to the policies of the Act in that it neither required nor permitted the Company to recognize Respondent in the Vallejo unit and required the Company only to do what it legally could do-i.e., extend to unrepresented employees the same wage rates and other benefits which a labor organization had obtained for the employees it represented. He distinguished the Smith Steel Workers case, noting that in that case the Union had openly insisted on recognition rights in a unit in which this Board had found that another labor organization had recognition rights. Since he did not here find any recognitional objectives in the Union's action, he found the Smith case inapplicable. We agree with the result reached by the Adminis- trative Law Judge, essentially for the reasons stated in his opinion. We note particularly that Respondent took no action here which we would regard as necessarily disruptive of the bargaining relationship in the New York unit. This is not a case in which negotiations in the New York unit were impeded by either insistence during New York negotiations to the point of impasse that the Company take action relating to Vallejo employees nor by taking of economic action in support of any such demands. Nor are we willing to construe an arbitration award which, by its specific terms, refuses to confer any representational rights with respect to Vallejo em- ployees upon Respondent as having a contrary meaning or necessary implication. We do not pass upon whether that award was a correct interpretation of the parties' New York agreement nor do we pass upon the issue of whether the award may have exceeded the scope of the issues submitted to him. LOCAL 445, ELECTRICAL WORKERS 185 We must, however, assume, unless and until a court of last resort should decide to the contrary, that the arbitrator was correct in finding, in essence, that the New York agreement constituted a voluntary agree- ment between the parties that employees may not be engaged by the Company at non-New York locations to perform the same duties as those performed by New York employees at lesser pay rates and other economic benefits. We cannot say that such a voluntary agreement either contravenes basic statu- tory policy nor that it necessarily confers representa- tional rights for non-New York employees upon Respondent. If such an agreement is lawful and the arbitrator is correct in holding that the parties have so agreed, we can perceive no violation of Section 8(b)(3) in the Union's attempts to secure compliance with such an agreement through peaceful and orderly means. Certain of the Union's actions, including particu- larly its demands with respect to the layoff of three employees at the Vallejo facility, may well appear at first glance at least to have representational over- tones.2 We are unwilling to say that the Union's attempt to discuss, or to have arbitrated, the issue of whether its objections to the layoff relate to econom- ic benefits or are representational, and thus preclud- ed from coverage by the award, rises to the level of a violation of Section 8(b)(3). Here again we note that there is no evidence that the Union's attempt to resolve the application of the award to Respondent's claims as to the layoff through peaceful and orderly means would have disrupted the ongoing bargaining relationship in the New York unit. Nor was any economic action taken or threatened in support of this union demand which might have had an adverse effect upon the New York bargaining relationship. In fact, it would seem that any contrary ruling by this Board would improperly interfere with Respondent's right to seek an orderly and peaceful determination of its contractual rights. Accordingly, in agreement with the Administrative Law Judge, we will dismiss the complaint in its entirety. MEMBERS KENNEDY AND PENELLO, dissenting: Unlike our colleagues, we find that Respondent violated Section 8(b)(3) of the Act by using the collective-bargaining process established for a unit of New York employees to determine the wages, hours, and working conditions of employees in California, whom it concedely did not represent. The Respondent here claimed that its bargaining position on the application of the New York contract was justified because (1) an arbitrator determined that all terms of the New York contract, excluding the union shop and other representational terms, should be applied to the California employees; and (2) its objective was to preserve work opportunities for the employees in New York. We find no merit in these defenses for the following reasons. The arbitrator's award was repugnant to the purposes and policies of the Act3 because it was contrary to established Board and court decisions.` According to well-recognized Board principles, a contract cannot lawfully be applied to employees outside the established unit unless they constitute an accretion to that unit.5 The award here fails to accord with that principle, even though the union shop and other recognitional terms were excised. In International Ladies' Garment Workers' Union, AFL-CIO [Bernhard-Altmann Texas Corp.] v. N.L.R.B.,6 the Supreme Court held that a contract that resulted from bargaining with a minority representative was completely void and could not be applied even as a members-only contract. An employer cannot bargain collectively with a nonrep- resentative union as though it were an exclusive representative. The effect of this award is to require the Company to bargain collectively with the Union concerning the wages, hours, and working conditions of the California employees and to allow the Respondent to administer the application of the contract on behalf of the California employees. In short, it requires the Company to deal with the Respondent as though it were the exclusive repre- sentative of these employees, even though it does not require formal recognition. This result seriously infringes on the Section 7 rights of the California employees and is contrary to the purposes and policies of the Act. The Respondent's contention that its objective was to preserve job opportunities for the New York employees is not established by the evidence. The evidence shows that no work was diverted from New York to California. The Respondent's demands were not limited to those economic features of the contract which are reasonably related to a work preservation objective. In this regard we note, that the second grievance filed by Respondent reads as follows: The Employer has violated Article I of the Agreement as ruled upon by the Arbitrator Benjamin Roberts. 2 We do not deem it necessary to reach the question of whether or not 4 Radio Television Technical School, Inc 1/a Ryder Technical Institute, 199 the Administrative Law Judge was correct in discounting the arguably NLRB No 85 representational nature of this demand as being merely an attempt to win 5 Super Markets General Corporation d/b/a Shop-Rite, 170 NLRB 446 employee support in the Vallejo election 6 366 U S 731 3 Cf Spielberg Manufacturing Company, 112 NLRB 1080 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Union demands that the Employer comply with the arbitrator's award, recall the drafting personnel laid off at Vallejo, California and make them whole.? This second grievance was patently unrelated to any work preservation objective with respect to the New York unit. It is only relevant to establish conclusively that the work preservation argument was a smoke- screen to conceal the Respondent's true objective- recognition. Although we are persuaded that the objective of the Respondent's demands was to secure recognition, we would find a violation of Section 8(b)(3) even if the Respondent's sole objective was work preserva- tion. Motivation is not controlling because the rights sought to be exercised are representational in nature and reserved for the exclusive representative of the California employees, when and if such a representa- tive is selected. Absent the status of exclusive representative of these employees, the Respondent has no right to participate in the determination of their wages, hours, and working conditions. The fact that these employees have chosen not to be repre- sented by the Respondent makes it clear that the Employer could not lawfully bargain with the Respondent about their wages, hours, and other terms and conditions of employment. Even though an employer may voluntarily accord unrepresented employees the same benefits as represented employ- ees, an employer may not bind itself to do so by agreement with a union.8 In essence, the Respondent insistently used its collective-bargaining status as the representative of the New York unit employees to make demands which the Company could honor without violating Section 8(a)(2) of the Act. Unlike our colleagues, we will not presume that these demands had no impact on the bargaining relationship established for the New York unit simply because there was no extrinsic evidence of damage. Insisting on unlawful demands for agreement through collective bargaining is inherently destructive of that process. Such an abuse of the collective-bargaining process is wholly incon- sistent with the obligations imposed upon unions by Section 8(b)(3). The Board so recognized in Smith Steel Workers,9 a case we view as indistinguishable from that before us here. In Smith Steel Workers, the Board found that a union's insistent demands for the application of a contract to employees previously determined by the Board to be outside the unit violated Section 8(b)(3). Here, some of Respondent's demands followed the Board's certification of the results of an election in California, in which the Board determined that those employees composed a separate appropriate unit and chose not to be represented by Respondent. Plainly, therefore, the Respondent, in pressing its demands thereafter, was acting in direct contradiction of a Board determina- tion. The fact that no other union was involved in this case cannot serve as a distinction. Section 7 guarantees employees the right to refrain from union representation. This right should be given no less weight than the corresponding right to select union representation. For all these reasons, we cannot escape the conclusion that Respondent violated -Section 8(b)(3) as alleged. I G C Exh 13. 8 Cf, United Mine Workers ofAmerica v Pennington, 381 U S 657, Dolly Madison Industries, Inc, Richmond Dairy Division, 182 NLRB 1037 9 174 NLRB 235, enfd. as modified 420 F 2d I (C A 7, 1969). TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL BISGYER, Trial Examiner: This proceeding, with all parties represented, was heard on March 6, 1972, in Brooklyn, New York, on the complaint of the General Counsel issued on December 27, 1971,i and the answer of Local 445, International Union of Electrical, Radio and Machine Workers, AFL-CIO, herein called the Respon- dent or Union. The issue litigated is whether the Respon- dent, in violation of Section 8(b)(3) of the National Labor Relations Act, as amended,2 refused to bargain collectively with Sperry Systems Management Division, Sperry Rand Corporation, herein called the Company, in an appropriate unit by insisting that the Company honor an arbitration award and apply their bargaining contract covering the technical employees at the Company's Metropolitan New York City plants, except for the union shop and represen- tation provisions, to certain unrepresented technical em- ployees at the Company's Vallejo, California, facility. At the close of the hearing, the General Counsel and the Respondent made a short oral presentation of their positions. Thereafter, all the parties filed briefs. Upon the entire record, and from my observation of the demeanor of the witnesses, and with due consideration being given to the arguments advanced by the parties, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE COMPANY The Company, a Delaware corporation with its principal office and place of business in Great Neck, New York, operates plants in different States in the United States where it is engaged, for national defense and civilian purposes, in the research, development, manufacture, sales, distribution, and servicing of electronic systems and instruments, navigation devices, and related products. In I The complaint is based on original and amended charges filed on August 2 and 26, 1971, respectively, copies of which were duly served on the Respondent by registered mail on the respective filing dates. 2 Sec. 8(b)(3) makes it an unfair labor practice for a labor organization or its agents "to refuse to bargain collectively with an employer, provided it is the representative of his employees" designated by a majonty of them in an appropriate unit LOCAL 445, ELECTRICAL WORKERS 187 the regular course of its business, the Company annually purchases goods and materials valued in excess of $1 million which are shipped in interstate commerce directly to its various facilities. It also annually ships from these plants finished products valued in excess of $1 million directly to destinations in States outside the place of manufacture. It is admitted, and I find, that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. If. THE LABOR ORGANIZATION INVOLVED There is no question, and I find, that the Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction In essence, the Respondent is charged with unlawfully refusing to bargain with the Company because, in accordance with an arbitrator's award, it insisted that the Company extend the wages, benefits, and other nonrecog- nitional provisions of their contract covering a Metropoli- tan New York City technical unit to certain unrepresented technical employees in Vallejo, California, who performed the same type of work done by drafting employees in the contract unit . As will be detailed below, the Respondent's alleged unlawful conduct consisted of oral and written demands, both general and specific in nature, made subsequent to the arbitration award , culminating in the filing of a new grievance and the institution of a second arbitration proceeding . It is the theory of the complaint that the Respondent, by its actions , was actually seeking to add the Vallejo employees in question to the contract unit and thereby to bargain for them in an inappropriate unit in violation of Section 8(b)(3) of the Act. B. The Evidence 1. Bargaining history; the Vallejo, California, operation; the filing of a grievance Since its certification on June 6, 1962, the Respondent has been the exclusive bargaining representative of the Company's employees in a so-called Metropolitan New York City technical unit,3 pursuant to successive agree- ments. The last agreement became effective on June 5, 1970, for a period expiring on August 15, 1973. Involved in the events discussed below is article I of the current agreement4 which provides: This Agreement shall apply to all plants now operated by the Employer, its successors or assigns, wherever situated. In the event any nonsupervisory (except engineers) employees within the IUE bargain- ing units of the Company are transferred to a location other than a plant now operated by the Company, any additional personnel hired at such location to work with such transferred employees in bargaining unit jobs, as hereinafter described, shall be covered by the terms of this Agreement. In the spring of 1970, the Company commenced operations in a new facility in Vallejo, California, where it employed, among others, three individuals who performed the same type of drafting work as that done by technical employees at the Company's Great Neck plants belonging to the Metropolitan New York City unit. However, no technical employee in the contract unit was transferred to the Vallejo facility so that concededly no rights accrued to the Respondent by reason of the second sentence of article 1.5 In early fall, the Union became aware that drafting work was being performed at the Vallejo facility. Upon investigating the matter, the Union learned that the three employees were not given conventional draftsman titles but that one was classified senior technical assistant and the other two were classified as technical assistants. It was further ascertained that these technicians were paid less than draftsmen in comparable classifications in the Metropolitan New York City technical unit; that they were not receiving the same wages and other economic benefits; and that the Company was contemplating an expansion of the Vallejo operation. Fearing that this situation could have an adverse impact on the draftsmen's job opportunities at the Great Neck plants, the Respondent on November 27, 1970, filed with the Company a grievance (No. 14-70) pursuant to the terms of the parties' current agreement .6 The grievance charged that The Company has violated Article I of the Labor Agreement by its failure to apply the Agreement to the 3 Case 2-RM-l 199 At that time and until 1967 the employer was known as Sperry Gyroscope Company, Division of Sperry Rand Corporation in 1967, the operation became a function of Sperry Systems Management Division, Sperry Rand Corporation Specifically, the certified unit consists of- All draftsmen, engineering aides, industrial illustrators , materials lab assistants I and ii, materials test coordinators, parts catalog writers I and II, senior draftsmen , senior draftsmen trainees, senior industrial illustrators, technical illustrators, 1, 11, 111 and IV, development technicians and engineering writers I and 11 employed at the Company's plants in metropolitan New York City including Nassau and Suffolk Counties, on temporary assignments wherever located from said plants, and on temporary or permanent assignments from said plants to customer or vendor installations , wherever located, exclusive of all guards, watchmen, professional employees and supervisors as defined in the Act and all other employees not employed in the included classifications The certification was issued in the name of Engineers Association, International Union of Electrical, Radio and Machine Workers, Local 445, AFL-CIO 4 This provision first appeared in the parties' contract executed in June 1964 and was continued in their subsequent contracts Moreover, this provision has similarly been incorporated in almost identical language in the Company's contracts with sister locals of the Respondent covering other bargaining units 5 The Company, however, assigned from the Great Neck plant to the Vallejo facility several engineers who were represented by the Engineers Union, a sister local of the Respondent, under a separate contract which contained substantially the same article I As a result, the Company, in accordance with that provision, recognized the Engineers Union as the bargaining representative of the assigned and newly hired engineers at Vallejo and applied the terms of their New York contract to all of these employees 6 Art 26 provides for a formal two-step grievance procedure culminating in binding arbitration for the settlement of "[a III disputes, differences, or grievances that may arise between the Union and the Employer, or between the Employer and the Union 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD technical personnel doing drafting work at Vallejo, California. The Union demands that the Agreement be applied to them and that they be made whole. Thereafter, several meetings were held between the Respondent and the Company at which the Company, in disagreement with the Union, took the position that article I was inapplicable to the Vallejo technicians apparently for the reason that no Metropolitan New York City technical unit employees had been transferred to that facility. Accordingly, on December 11, 1970, the Company formally denied the grievance. 2. The arbitration proceeding and award Upon receipt of the Company's rejection of its grievance, the Respondent promptly proceeded to arbitration in conformity with contractual procedures.? On February 22, 1971,8 a hearing was held before Arbitrator Benjamin C. Roberts. The specific question presented to him was "[w]hether the technical personnel performing drafting work at Vallejo, California, are under the coverage of the collective bargaining agreement with Local 445." On April 19, the arbitrator issued a 22-page opinion and award in which he discussed the genesis of the first sentence in article 1 quoted above,9 which concededly is the only part here relevant; the bargaining history; Board law respecting the accretion of new plants to established bargaining units; and the many contentions advanced by the parties. The arbitrator interpreted article I as requiring the application of the current contract to the Vallejo facility as it was a plant in operation on June 5, 1970, the effective date of the contract. However, he determined that, since there was insufficient evidence to warrant a finding that Vallejo was an accretion to the Metropolitan New York City technical unit within the meaning of Board decisions, it would be beyond his duty and responsibilities to direct the Company to apply the entire contract to the technical personnel who performed drafting work at the Vallejo plant and thereby require the Company to commit an unfair labor practice. On the other hand, he concluded that it was his obligation . . . to require compliance to the extent that it would be legal to apply the contract terms agreed upon by the parties, and particularly since there is such identity in the work being done in Vallejo and at .. . [the Great Neck plants]. Consequently, as the alterna- tive to the enforcement of the Agreement in whole, the Company should be required to enforce Article I to the extent that the technical personnel performing drafting work at the Vallejo plant shall be governed by the same wages and other terms of employment as set forth in the Local 445 Agreement (but excluding any Union shop or representation clauses), retroactive to June 5, 1970. Accordingly, the arbitrator issued the following 7 Insofar as pertinent, art 26(F), entitled "Arbitration," reads, as follows I all disputes, differences and grievances which may arise out of this Agreement including claims arising out of breaches or threatened breaches or violations or threatened violations of this Agreement and which shall not have been satisfactorily settled within two weeks following the procedure herein set forth shall, at the request of either party, be promptly submitted to arbitration Arbitration shall be the AWARD As a matter of law, the technical personnel performing drafting work at the Company's plant at Vallejo, California, are not under the coverage of the collective- bargaining agreement with Local 445. However, they shall be governed by the wages and other terms of employment contained in the Local 445 Agreement (excluding the Union Shop and other representation clauses) and retroactive to June 5, 1970. 3. The Respondent's unsuccessful efforts to secure compliance with the award; its institution of further grievance and arbitration proceedings On May 3, the Respondent's president, Henry Zylla, notified the Company that the Union expected it to apply the arbitrator's award to all of its plants in existence on June 5, 1970. On May 5, the Company's labor relations supervisor, Joseph Schmidt, simply responded that the award, by its terms, applied only to the Vallejo plant. In the ensuing weeks, Zylla had several meetings with Gus Kolmel, the Company's labor relations manager, and Schmidt in an effort to secure compliance with the award. As indicated above, this required that the wages and other terms and conditions of employment of the Vallejo technicians engaged in drafting work at least be equalized with those prescribed in the New York contract for drafting employees and prevailing in the Great Neck plants. The Company was also informed that the award, however, did not preclude the Vallejo employees from seeking or being given better terms of employment. In one such meeting with Kolmel, Zylla explained that, in requesting the Company to implement the award, the Union was not undertaking to represent the Vallejo technicians but rather was acting on behalf of the Great Neck draftsmen covered by the New York contract. He testified, in effect, that the underlying motivation for the Union's actions was to preserve job opportunities in the Great Neck plants and to discourage the hiring of new employees in Vallejo to perform the same type of work being done in Great Neck. On this occasion, Zylla also requested reimbursement of tuition expenses incurred by a Vallejo technician (Judith Eskew), as required by the New York contract and the award.iO Kolmel stated that he would look into the matter and asked Zylla to send him the receipts. On May 27, Zylla wrote Kolmel a letter in which he enclosed the previously requested receipts of tuition expenses. In addition, the letter reminded Kolmel that [on] a number of occasions the union has attempted to resolve the differences which exist as a result of the arbitrator's award in Grievance No. 14-70. We are particularly disturbed by the company's delay in carrying out the arbitrator's decision. As I pointed out sole and exclusive remedy available to the parties hereto The decision of the arbitrator shall be final and binding upon all parties and shall be complied with promptly 8 Unless otherwise indicated, all dates refer to 1971 9 1 e , "This Agreement shall apply to all plants now operated by the Employer,-wherever situated " 10 According to Zylla's undisputed testimony, unrepresented employees also enjoyed this benefit where the courses related to their work LOCAL 445, ELECTRICAL WORKERS 189 at one of our meetings, the union position is that all three of the drafting people in California should have been properly classified as design draftsmen. Their back pay should be based on that classification. In our opinion the company should prepare a separate itemized accounting for each of the three people involved in this arbitration. This accounting should be forwarded to the union as soon as possible so that we may review it and determine whether or not the company has fully complied with the arbitrator's award. On or about July 26, the subject of the arbitration award fortuitously came up during the course of a union- management meeting which was called to consider unrelated problems. At one point, the Company's director of industrial relations, Gerald Weiner, remarked to Zylla that the Vallejo technical employees had "quite a deal; these people can't get less, according-[to the Union], but they can get more. That's a great deal." Zylla agreed that that was the effect of the award. Failing to persuade the Company to comply with the arbitrator's award, the Respondent on July 26 filed with the Company another grievance, alleging as follows: The Employer has violated Article I of the Agree- ment as ruled upon by Arbitrator Benjamin Roberts. The Union demands that the Employer comply with the arbitrator's award, recall the drafting personnel laid off at Vallejo, California, and make them whole. The Company responded by filing on August 2 the unfair labor practice charge which initiated the present proceed- ings, Thereafter, pursuant to prior arrangement, Zylla and Russ Mantione, the chairman of the Respondent's griev- ance committee, conferred with Labor Relations Supervi- sor Schmidt on August 11 concerning the above grievance. In the 10 minutes or so that the meeting lasted, Zylla complained that the Company was not honoring the award, as their New York contract obligated it to do, by applying that contract to the Vallejo technical employees here involved. He then proceeded to list the Union's demands, compliance with which he regarded was required by the award. These related to wages; severance, vacation and sick pay; pension contributions; tuition refund; overtime payments; the participation in a merit kitty; the recall of employees improperly laid off with backpay; the reimbursement for medical expenses incurred by such individuals; and the reclassification of drafting employees wrongly classified. In addition, Zylla asked for a full accounting to determine whether the Vallejo employees received the benefits they were entitled to. The meeting closed with Zylla's request for an answer to the grievance within the time prescribed in the contract. There is a conflict in testimony given by Schmidt and Zylla as to 11 It appears that at this time two technical employees whose job entailed drafting work were allegedly in layoff status 12 The Respondent filed timely objections, alleging the discriminatory discharge of two draftsmen and an engineering clerk and other misconduct The allegations also became the subject of an unfair labor practice charge filed by the Respondent on August 16 (Case 20-CA-6958)(G C 12) whether at this meeting Zylla expressly disavowed that the Union claimed to represent the Vallejo drafting employees. As Schmidt conceded that Zylla had made such a statement on another occasion, I find it unnecessary to resolve this conflict. By letter dated August 25, Schmidt rejected the griev- ance. Referring to the Company's application to the State Supreme Court to modify the award, discussed below, and to its previously filed unfair labor practice charge, the letter stated that compliance with the Union's grievance requests "would be unlawful under ... [the] Act" and that the Company accordingly "decline[d] to follow the course requested by [its] grievance." On August 27, the Union responded that it would not accept the Company's answer and proposed arbitration, as provided for in the contract, to resolve the compliance problem, listing the names of three individuals from which to select an arbitrator. In reply, Schmidt wrote to the Respondent that it appeared to be ... pointless to present questions to another arbitrator which have not only already been arbitrated but are currently pending before both the New York court and the Board. However, subject to our right to argue the non-arbitrability of this claim before the arbitrator, we are, pursuant to our obligations under the contract, by this letter indicating our rejection of- the names suggested and submitting in place of them the three arbitrators named below. We would point out, in doing so, that we consider this request to arbitrate in itself to be further evidence supporting the charge now pending before the Board. Thereafter, the Respondent and the Company agreed upon an arbitrator and a hearing was scheduled for November 23. However, by mutual agreement of the parties, the hearing was indefinitely postponed. 4. The representation proceeding; the State court suit to modify the award On May 10, a few weeks after the Roberts arbitration award was rendered, the Respondent filed a representation petition with the Board's Region 20 in San Francisco (Case 20-RC-10035), requesting an election in a residual unit of draftsmen[[ and clerical employees at the Vallejo facility. Pursuant to the Regional Director's Decision and Direc- tion of Election, issued on July 8, an election was held on August 5 which the Respondent lost by a vote of 2 to 0 with one ballot being challenged.12 During the pendency of the representation proceeding, the Company filed on July 20 a petition in the New York Supreme Court, New York County, to modify the Roberts award by vacating the second sentence which directed the Company to apply to the Vallejo drafting employees "the wages and other terms of employment contained in the [New York agreement ]-(excluding the Union shop and Following investigation , the Regional Director, on September 14, dismissed the charge On appeal, the dismissal was sustained by the General Counsel Thereafter, on December 16, the Regional Director overruled the objections in the representation proceeding and issued a Certification of Results of Election 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other representation clauses) and retroactive to June 5, 1970." 13 In support of its petition, the Company argued that this part of the award was not based on any issue submitted to the arbitrator and, secondly, that it was in excess of the arbitrator's power because it directed action which would put the Company in violation of the Act. The Respondent answered the petition, requesting confirmation of the award in all respects. On November 2, the State court handed down its decision, granting the Company's petition on both grounds urged by the Company. Accord- ingly, on December 2, the court entered judgment, striking the second sentence from the award and denying the Respondent's cross-motion to confirm the award without modification. An appeal was thereafter taken to the Appellate Division of the Supreme Court where the matter is now pending until the final disposition of the unfair labor practice charge by the Board.14 C. Concluding Findings Although deliberately refraining from attacking the validity of the arbitration award, the General Counsel contends that the Respondent's persistent demands that the Company honor the award and apply their current New York contract to the three technical employees who performed drafting work at the Vallejo, California, plant in a manner exceeding the requirements of the award, and the Respondent's submission of the Company's noncompli- ance to the contractual grievance-arbitration procedures constituted attempts to secure recognition and to bargain as the exclusive representative of the Vallejo technicians in an enlarged inappropriate unit resulting from the addition of those employees to the previously certified, contract unit Such conduct, the General Counsel urges, amounts to a refusal to bargain in an appropriate unit in violation of Section 8(b)(3) of the Act. The Company reaches the same conclusion except that, in sharp disagreement with the General Counsel, it argues that the award itself is in irreconciliable conflict with the Act and that therefore the Respondent's efforts to secure compliance were in breach of its statutory bargaining obligation, even though its demands were sanctioned by the award. In support of their positions, both the General Counsel and the Company rely principally on Smith Steel Workers,15 to be later discussed. Denying that its efforts to enforce the award violated its bargaining duty, the Respondent maintains that the award does not contravene the Act and is therefore entitled to deference by the Board. Moreover, it argues that its actions were not intended to achieve unlawful recognition as the bargaining representative of the Vallejo technical employ- ees but rather were taken in furtherance of the Respon- 13 The Sperry Division of the Sperry Rand Corporation v Local 445, International Union of Electrical, Radio and Machine Workers, AFL-CIO, Index No 15910/71 Not challenged was the validity of the first sentence of the award which stated that, "[a ]s a matter of law, the technical personnel performing drafting work at the Company's plant at Vallejo, California. are not under the coverage of the collective bargaining agreement with Local 445 " 14 It appears from the Company's brief that the appellate division so ruled on the Respondent's motion on March 23, 1972, following the hearing in the present case 15 Smith Steel Workers (A 0 Smith), 174 NLRB 235, enfd in part sub nom Smith Steel Workers v A 0 Smith, 420 F 2d I (C A 7) dent's legitimate interests to preserve job opportunities for the Great Neck drafting employees covered by the New York contract by preventing the Company from establish- ing plants with inferior terms and conditions of employ- ment to which drafting work could be diverted. As evidence of its lawful motivation, the Respondent asserts that nothing in the award or its conduct precludes the Vallejo technical employees from seeking, or the Respon- dent from granting them, more favorable working condi- tions. On the basis of the record before me, I find the charge of unlawful refusal to bargain unsubstantiated bythe evidence. As related above, the Respondent initially invoked the grievance-arbitration procedures prescribed in the parties' New York collective-bargaining agreement to enforce a claimed contractual right to bring certain Vallejo technical employees who performed drafting work under the contract's coverage. Following hearing, the arbitrator issued his award, finding that Board law precluded him from treating those employees as an accretion to the certified contract unit, as the contract literally provided, and that consequently they were not covered therein. However, the arbitrator, after carefully considering the evidence and arguments advanced by the parties, neverthe- less sustained the Respondent's right to have the contractu- al wages and other terms of employment, excluding the union shop and other representation clauses , applied to those employees, retroactively to June 5, 1970, the effective date of the contract. In so ruling, the arbitrator expressly denied the Respondent the status of bargaining agent of the Vallejo technical employees which would normally result from a plant accretion finding. When the Company adamantly declined to comply with the award, the Respondent again filed a grievance with the Company and invoked arbitration which, by consent of the parties, never reached hearing. Certainly, the Respondent cannot be criticized for resorting to the arbitral process the parties themselves had agreed upon in their contract as the "sole and exclusive remedy" for the resolution of "all [unsettled] disputes, differences and grievances which may apse out of this Agreement including claims arising out of breaches or threatened breaches or violations or threatened violations of this Agreement...." 16 Arbitration, in the authoritative view, well serves the national labor policy of encouraging the practice and procedure of collective bargaining of which arbitration is a vital and integral part,17 and is particularly suitable where, as here, the interpretation and application of a bargaining contract are involved.18 Accordingly, the Board has held that in such cases it would give hospitable acceptance to an award rendered in a fairly 16 Art 26(F) 17 Collyer Insulated Wire, a Gulf and Western Systems Co, 192 NLRB No 150, International Harvester Company, 138 NLRB 923, enfd. sub nom Ramsey v N LR B, 327 F.2d 784 (C A 7). cert. denied 377 U S. 1003, Spielberg Manufacturing Company, 112 NLRB 1080 is Collyer, supra, Coppus Engineering Corporation, 195 NLRB No 113, Combustion Engineering, Inc. 195 NLRB No 161, Great Coastal Express, Inc, 196 NLRB No 129, Norfolk, Portsmouth Wholesale Beer Distributors Association, 196 NLRB No 165 To be sure, the Board has the undeniable authority to interpret contractual provisions where necessary to resolve unfair labor practice issues N L R B v C & C Plywood Corporation, 385 U S 421 LOCAL 445, ELECTRICAL WORKERS 191 conducted arbitration proceeding and withhold its process- es, unless it is "clearly repugnant to the purposes and policies of the Act." 19 The critical questions then to be determined here are whether the Roberts award is by its terms, "clearly repugnant" under the Act because it unlawfully confers upon the Respondent exclusive repre- sentative status over the Vallejo employees in an enlarged inappropriate unit 20 and whether the Respondent's efforts to achieve compliance with the award, in effect, amounts to an unlawful refusal to bargain within the meaning of Section 8(b)(3) of the Act. No question is raised concerning the arbitrator's impartiality or the fairness and regularity of the arbitration proceeding. As shown above, there is nothing in the arbitration award which directs the Company to recognize the Respondent as the exclusive representative of the Vallejo technical employees as part of the certified contract unit. Acknowledging controlling principles regarding plant accretions to established bargaining units, the arbitrator, in a well-reasoned opinion, specifically declined to include the Vallejo technical employees in the contract unit.21 While the award provides for the application of the nonrecognitional clauses of the contract to those employ- ees, I am aware of no restriction in the Act prohibiting an employer, not improperly motivated, from extending to his unrepresented employees the same wage rates and other benefits a labor organization obtained for the employees it represents. Indeed, this is not an unfamiliar practice followed by employers to maintain good relations with his unrepresented employees. In these circumstances, I find that the award does not require the Company unlawfully to recognize the Respondent as the exclusive representative of the Vallejo technical employees as part of the contract unit, without being designated by those employees as their bargaining agent. For this reason, there is no basis for the Company's contention that, if it honors the award, it would violate the Act under the Supreme Court's holding in the International Ladies' Garment Workers' case 22 This being so, I find that the award is not "clearly repugnant to the purposes and policies of the Act" as to justify the Board, in its discretion, to refuse to defer to it. Nor am I persuaded that the evidence establishes that the Respondent's efforts to enforce the award had as their aim the Respondent's recognition as the bargaining agent of the Vallejo technical employees as part of the New York contract unit. The only evidence in the record indicates that the Respondent's actions were motivated by a desire to preserve job opportunities for the Great Neck drafting employees by requiring the Company to observe, at least, 19 International Harvester, supra, 138 NLRB at 927. 20 As indicated above, the General Counsel, unlike the Company, does not contend, nor does the complaint allege, that the Roberts award, as distinct from the Respondent's actions, offends the Act. 21 In this respect, the arbitrator's award in this case differs from that involved in Combustion Engineering, supra. 22 International Ladies' Garment Workers ' Union, AFL-CIO v. N.L.R.B., 366 U.S. 731. It is noted that the complaint does not allege that the award or the Respondent's actions restrained or coerced the Vallejo technical employees in the exercise of their statutory right to select a bargaining representative of their own choosing in violation of Sec . 8(b)(IXA) of the Act. Cf. N.L.R.B. v. Drivers, Chauffeurs, Helpers, Local Union No. 639 [Curtis Bros.], 362 U.S. 274, where the Court held that peaceful picketing by a minority union for immediate recognition as the employees ' exclusive the same wages and working conditions at the Vallejo plant for technical employees doing the same type of drafting work 23 and thereby to discourage the diversion of unit work from the Great Neck plants to the Vallejo facility where inferior conditions prevailed. Undeniably, the preservation of unit work is a legitimate union objective.24 While one of the Respondent's demands related to the recall of two Vallejo technical employees who were assertedly laid off improperly may perhaps suggest that the Respondent was interested in seeking recognition, it does not necessarily establish that the Respondent sought to represent the Vallejo technical employees as part of the New York contract unit, which is the very theory of both the General Counsel's and the Company's case. Such a demand is entirely consistent with the Respondent's determination only to achieve reinstatement of the laid-off employees without recognition,25 or, at most, to represent the Vallejo technical employees in a separate unit. In fact, on May 10, shortly after the rendition of the award, the Respondent filed in the Board's San Francisco region a petition for certification in a residual unit of Vallejo employees. It was during the pendency of that proceeding that the Respondent demanded the recall of the two laid- off employees. Probably, by thus injecting itself into this matter, the Respondent expected to win over the employ- ees' support in the forthcoming election. Accordingly, I find insufficient evidence that the Respondent's actions and demands were calculated to achieve recognition and bargaining rights as the exclusive representative of the Vallejo technical employees as part of the New York contract unit. In view of this finding, the Board's holding in Smith Steel Workers,26 heavily relied on by the General Counsel and the Company, is clearly inapplicable. In that case, a union, in defiance of a Board unit clarification order, insisted on continuing to represent under its contract certain employees long considered to be included in a certified unit it had been representing. In the unit clarification proceeding, the Board determined that the disputed employees properly belonged in another certified unit represented by another labor organization. The union, however, persisted in its representational claim; unsuccess- fully attempted to file a grievance and to initiate arbitra- tion pursuant to its contract; and finally brought suit in the United States District Court under Section 301 of the Act to compel the company to proceed to arbitration. The Board held that, by refusing to abide by its unit clarification order and by insisting on continued recogni- tion for the disputed employees, the union attempted to representative did not violate employee rights under Sec. 8(b)( IXA). 23 That the preservation of job opportunities was the Respondent's objective is shown by the fact that there is nothing in the award or in its demands which precluded the Company from unilaterally granting the Vallejo technical employees more favorable conditions of employment. 24 Cf. National Woodwork Manufacturers Association v. N.LR. B., 386 U.S. 612. 25 See, for example, Local 259, international Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UA W, AFL-CIO (Fanelli Ford Sales, Inc.), 133 NLRB 1468, where the Board held that picketing directed solely at securing the reinstatement of a discharged employee was not to gain recognition in violation of Sec. 8(b)(7) of the Act. 26 Smith Steel Workers (A.O. Smith), 174 NLRB 235, enfd. in part sub nom. Smith Steel Workers v. A.O. Smith, 420 F.2d I (C.A. 7). 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargain in an inappropriate unit in violation of Section 8(b)(3) of the Act.27 As shown above, this plainly is not the situation involved in the present case.28 In sum, I conclude that the General Counsel failed to sustain his burden of proving that the Respondent refused to bargain with the Company in an appropriate unit composed of the Company's technical employees in the Metropolitan New York City area. Accordingly, I recom- mend dismissal of the complaint in its entirety. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 2. The Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in the unfair labor practices alleged in the complaint. RECOMMENDED ORDER29 Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, as amended, It is ordered that the complaint issued herein against the Respondent, Local 445, International Union of Electrical, Radio and Machine Workers , AFL-CIO, be, and it hereby is, dismissed. 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 27 In enforcing the Board's order, the court, however, did not rely on the union's institution of the Sec. 301 suit, as did the Board. 28 Similarly distinguishable are the other cases cited by the General Counsel and the Company. Thus, for example, in District 50, United Mine Workers ofAmerica (Central Soya Company, Inc.), 142 NLRB 930, the Board found a violation of Sec. 8(bX3) of the Act where the union demanded that the bargaining negotiations cover employees expressly excluded from the certified unit it represented. In International Longshoremen 's Association, 118 NLRB 1481, the same violation was found where the union pressed its demands for bargaining on a broader basis than the unit certification. 29 In the event no exceptions are filed as provided by Sec . 102.46 of the Rules and Regulations of the National Labor Relations Board , the'findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes.