Columbus and Southern Ohio Electric Co.

COLUMBUS & SOUTHERN OHIO ELECTRIC CO. 187 Columbus and Southern Ohio Electric Company and Local Union No. 1466, International Brotherhood of Electrical Workers, AFL-CIO. Case 9-CA-6914 August 1, 1973 DECISION AND ORDER On November 30, 1972, Administrative Law Judge Jennie M. Sarrica issued the attached Decision in this proceeding. Therafter, the Charging Party filed excep- tions and a supporting brief. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her recommended Order, dismissing the com- plaint without prejudice. We are here following our well-established preced- ent, as set forth in the line of cases which had its origin 30 years ago in Consolidated Aircraft Corp., 47 NLRB 694, 706, enfd. in pertinent part 141 F.2d 785 (C.A. 1, 1944), was reasserted 4 years ago in Jos. Schlitz Brew- ing Company, 175 NLRB 141, and more recently de- finitively outlined in Collyer Insulated Wire, 192 NLRB 837. As refined by Collyer, the precedent has consistently been followed since in Coppus Engineer- ing Corporation, 195 NLRB 595; Great Coastal Ex- press, Inc., 196 NLRB 871; Norfolk, Portsmouth Wholesale Beer Distributors Association, et al., 196 NLRB 1150; Titus-Will Ford Sales, Inc., 197 NLRB 147; Wrought Washer Manufacturing Co., 197 NLRB 75; Diamond National Corporation, 197 NLRB 560; Bethlehem Steel Corporation, 197 NLRB 837; Urban N. Parman, Inc., 197 NLRB 1222; National Radio Company, Inc., 198 NLRB No. 1; Malrite of Wiscon- sin, Inc., 198 NLRB No. 3; National Biscuit Company, 198 NLRB No. 4; Peerless Pressed Metal Corporation, 198 NLRB No. 5; Southwestern Bell Telephone Com- pany, 198 NLRB No. 6; Appalachian Power Company, 198 NLRB No. 7; National Tea Company, 198 NLRB No. 62; L.E.M., Inc., d/b/a Southwest Engraving Co. and Towell Printing Co., 198 NLRB No. 99; Joseph T. Ryerson & Sons, Inc., 199 NLRB No. 44; Western Electric, Inc., 199 NLRB No. 45; Western Electric, Inc., 199 NLRR No. 49; Eastman Broadcasting Com- pany, Inc., 199 NLRB No. 58; (Houston Chronicle Publishing Co.), 199 NLRB No. 69; Atlantic Richfield Company, 199 NLRB No. 135; Radioear Corporation, 199 NLRB No. 137; Medical Manors, Inc., d/b/a Community Convalescent Hospital, 199 NLRB No. 139; The Associated Press, 199 NLRB No. 168; Gary- Hobart Water Corporation, 200 NLRB No. 98; Camp- bell Sixty Six Express, Inc., 200 NLRB No. 157; Gulf States Asphalt Company, 200 NLRB No. 100; West- inghouse Electric Corp., 200 NLRB No. 115; Superior Motor Transportation Co., Inc. 200 NLRB No. 139; The A. S. Abell Company, 201 NLRB No. 5; Champlin Petroleum Company, 201 NLRB No. 9; Enterprise Publishing Company, 201 NLRB No. 118; National Heat and Power Corp., 201 NLRB No. 150; Sperry Systems Management Division, Sperry Rand Corp., 202 NLRB No. 18; Tyree Construction Co., 202 NLRB No. 34; J. Weingarten, Inc., 202 NLRB No. 69; Mc- Lean Trucking Company, 202 NLRB No. 102; Todd Shipyards Corporation, 203 NLRB No. 20; Jemco, Inc., 203 NLRB No. 32; and Roadway Express, Inc., 203 NLRB No. 25. We note finally, that the only court of appeals which has to date reviewed our Collyer deferral policy found it to be well within our discretion, citing with apparent approval our reasoning that such deferral is in furtherance of the "fundamental aims" of the Act. See Nabisco, Inc. v. N.L.R.B., 470 F.2d 770 (C.A. 2, 1973). Despite this array of precedent, our colleagues, in yet another emotionally charged dissent, belabor us with their continuing unhappiness with our deferral of disputes between contracting parties until their own grievance procedures can be utilized. The dissent here even concludes with a ringing peroration (of dubious pertinence to any facts in this case) accusing us of returning to governing labor relations by injunction. We do not believe it necessary to attempt to match our colleagues' intemperate prose. We prefer the cal- mer and more reasoned analysis of the Administrative Law Judge below, whose findings and conclusions (which we have adopted) include the following: Here the current collective bargaining agree- ment between the parties does contain grievance- arbitration provisions broad enough to cover, in- deed specifically applicable to, the issues raised by the dispute herein, whether these are deemed to involve rights of employees under the separate Divisional provisions of the contract or manag- ment rights preserved by the contract and, al- though the time specified for initiating arbitration proceedings has expired, such proce- dures are available as the Respondent has indi- cated it's continuing willingness and desire that this matter be submitted to arbitration. Because the dispute between the parties arises out of claimed contract rights it is reasonable to antici- pate that interpretation of the contract provisions will resolve the unfair labor practice issues. For, if Respondent had the right under the manage- ment rights clause to assign employees in the Columbus District to perform the work in the Delaware Division, there was no unfair labor practice committed even though Respondent had 205 NLRB No. 33 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for some years sought to accomplish precisely this end through other specific contract propos- als. If, however, because of other contract provi- sions and/or limitations of management rights existing prior to the date of the agreement, it is determined that Respondent did not have the contract right to make the change it did, presum- ably the arbitration panel will at a minimum re- quire restitution and contract adherence, remedies comparable to the Board's normal or- der in such cases and compatible with the pur- poses of the Act. I am satisfied that present in this case are the conditions essential to a deferral of the issues involved for resolution by the parties within the framework of their voluntarily estab- lished grievance-arbitration procedure. [Foot- notes omitted.] ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the complaint herein be, and it hereby is, dismissed; provided, however, that: The Board shall retain jurisdiction of this proceed- ing for the purpose of entertaining an appropriate and timely motion for futher consideration upon a proper showing that either (a) the dispute has not, with rea- sonable promptness after issuance of this Decision and Order, either been resolved by amicable settle- ment in the grievance procedure or submitted promptly to arbitration, or (b) the grievance or arbi- tration procedures have not been fair and regular or have reached a result which is repugnant to the Act. MEMBERS FANNING AND JENKINS, dissenting: With this decision, our colleagues require arbitra- tion of an employer's alleged unlawful transfer of unit work to another group of employees, without any dis- cernible contractual support for such action. In so doing, they eliminate most of the remaining vestiges of the protection Section 8(a)(5) and 8(d) previously afforded against unilateral changes in a collective- bargaining agreement. Nearly 30 years ago, Southern District of Respon- dent, based in Athens, Ohio, was certified as a bar- gaining unit with a Local of the Union as the bargaining representative. About the same time, an- other Local of the Union was certified as the bargain- ing representative in Respondent's Columbus (Ohio) District. At all times the Delaware (Ohio) Division has been included in the Athens District, though it is nearer to Columbus than to Athens. Since 1961, the Union has negotiated single contracts covering both the Southern and Columbus Districts. However, in each such contract and in the practice under it, the Union and Respondents have continued to preserve the separation of the units on matters such as seniori- ty, job bidding preferences, overtime, and the like, which would have major impact within the units on earnings and work opportunities if they were not kept separate. Respondent has in several past negotiations sought unsuccessfully to have the Delaware Division includ- ed in the Columbus District. Respondent's most re- cent attempt to do this occurred in negotiations for the current contract covering the period July 1, 1971- June 30, 1974. The issue was a major bargaining sub- ject, discussed for many hours during the bargaining sessions. Respondent was unable to get the Union to agree, dropped the matter, and signed the contract. Then Respondent did it anyway: without discussion with the Union, Respondent assigned the meter read- ing work in the Delaware Division to Columbus em- ployees, and told the Union it would in the future assign all the other Delaware work to Columbus em- ployees rather than to the Athens employees who had theretofore done the work. This unilateral removal of work from the Athens Division is alleged to violate Section 8(a)(5) of the Act. In refusing to decide the merits of this issue and requiring the Union to arbitrate it, our colleagues rely on the provision in the management rights clause of the contract: Except as specifically limited by the terms and provisions of this Agreement, the Company shall retain all of the rights, powers and authorities vested in it prior to the date of this Agreement. This provision, our colleagues say, makes a "contract issue" of the transfer of work, and therefore they ap- ply Collyer Insulated Wire, 192 NLRB 837, to defer the alleged violation to decision by an arbitrator. But this provision of the contract gives Respondent only the rights it had "prior to the date of this agreement." Prior to 1961, when the Columbus and Athens units were covered by separate contracts, there plainly could be no right for Respondent unilaterally to trans- fer work out of the Athens unit unless the contract specifically authorized it. The use of a single contract beginning in 1961 to cover both units, with common provisions on some matters and with the separate pro- visions as appropriate for the separate units, as noted above, did not increase Respondent's previously non- existent right to transfer the work. Nor is there any provision in any contract since 1961 which gives Re- spondent this right, and our colleagues point to none. Both Respondent and the Union, during nearly 30 years of bargaining history, have taken the position that Respondent has no such right to transfer work. COLUMBUS & SOUTHERN OHIO ELECTRIC CO. 189 Over this period their practice of negotiating and con- sulting concerning transfers confirms this view, as do Respondent's repeated efforts, including a strong at- tempt during negotiation of the current contract, to get the Union to give it this right. In the face of these facts, the assertion that there is a "contract issue" in this case can only be considered frivolous. Respondent, after signing a contract with the Union, has immediately and unilaterally arrogated to itself the right to change one of the most basic of the employment conditions, with only the most transpar- ent claim of contract justification. Such a repudiation of the bargaining obligation and of the contract itself, coming promptly on the heels of negotiating and sign- ing the contract, is perhaps as flagrant a defiance of the obligation to bargain as ever could occur. It de- stroys not only the results of collective bargaining but also the relationship between the parties after the bar- gaining had been accomplished and agreement reached. Any award by an arbitrator which did not find that Respondent had violated Section 8(a)(5) in its repudiation of one of the paramount results of bargaining would plainly be repugnant to the Act, and this Board would have to reject it. Thus, the only matter that the arbitration can determine is the reme- dy to be granted to the Union for Respondent's con- tract repudiation. But if bargaining about such matters is the course required by the Act and policy it embodies, arbitration can be of no help, for the arbitrator cannot order bargaining; nor enjoin the loss of jobs, of work opportunities, of overtime or the other severe consequences of Respondent's action un- til bargaining takes place; nor prohibit such conduct in the future. The deferral of this case to an arbitrator can only result, as we have noted above, in a failure to achieve a proper and effective remedy for Respondent's violation. Such a failure clearly "strikes at the foundation" of collective bargaining and seem- ingly, on the basis of our colleagues' own standards, should not be permitted to occur. Joseph T. Ryerson & Sons, Inc., 199 NLRB No. 44. The Collyer majority have stated that the courts have not determined whether the Board should, or should not, defer unfair labor practice cases to arbi- tration . There is no doubt, however, what Congress' view was in enacting Section 8(a)(5) and 8(d). Since the original enactment of this statute in 1935, it has been contemplated that the Government, with its re- sources, facilities, and power, shall vindicate the rights protected by the Act. "No private right of action is contemplated. Essentially the unfair labor practices listed are matters of public concern by their nature and consequence, present and potential. . .." See II Leg. Hist. 291, 2978, 3074 (1935). The original Section 10(b) proposed by Senator Wagner, and rejected by the Congress, contained a clause providing that the "Board may, in its discre- tion, defer its exercise of jurisdiction over any such unfair labor practice in any case where there is anoth- er means of prevention provided for by agreement ...." See I Leg. Hist. 1303 (1935); II Leg. Hist. 2430 (1935). This Congressionally rejected policy the ma- jority now adopts. Yet this provision was struck from the bill, Leg. Hist. 2351 (1935), a clear rejection of the "policy" which the majority here and in Collyer has created. Our colleagues apparently consider that the Act does not, or should not, remedy any unilateral change in a collective-bargaining agreement, even the major repudiation involved here. For this conclusion they rely on the House Conference Report (No. 510, p. 41) on the 1947 Taft-Hartley amendments (H.R. 3020), which stated that "Once the parties have made a col- lective bargaining contract the enforcement of that contract should be left to the usual processes of the law and not to the National Labor Relations Board." Their reliance is, we think, misplaced. This observa- tion was made in explanation of rejection of a Senate amendment which expanded Section 8(d): (1) to make every breach of contract an unfair labor practice- which we concede Section 8(d) does not presently do-and (2) to make a refusal to arbitrate an unfair labor practice-a conclusion we reject as strongly as did Congress, though the majority's Collyer principle as effectively forces the parties to go the arbitration route as if this change had been adopted rather than rejected. There is no hint of any kind that, in refusing to expand Section 8(a)(5) and (d) in the manner pro- posed, Congress was narrowing or eliminating the ex- isting reach of those provisions. Thus, the sentence quoted from the legislative history of a rejected provi- sion can have a meaning no broader than the rejection it explains. This sentence is not authority for the prop- osition embraced, by the majority that , as we under- stand it, since some breaches of contract are not unfair labor practices no breach of contract violates the Act. Such conclusion robs Section 8(d) of all meaning in this respect, reducing it to a "notice" sec- tion. Likewise, we regard as misplaced the majority's re- liance on Carey v. Westinghouse Electric Corp., 375 U.S. 261, to establish the Board's authority to defer to arbitration cases which concededly involve unfair la- bor practices, as does the present one. Carey de- termined only that under Section 301 of the Act the courts can entertain suits to enforce provisions of a collective-bargaining agreement including, of course, an arbitration award. But this hardly supports the conclusion that this Board should defer to arbitration those cases in which a breach of contract also consti- 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tutes an unfair labor practice, as the Supreme Court pointed out in Amalgamated Association of Street, Electric Railway & Motor Coach Employees of America v. Lockridge, 403 U.S. 274. Lockridge appears to us plainly to indicate that the Board lacks power to defer labor practice cases to arbitration. Respondent's unilateral removal of work from the Southern District employees is little different from the employer's unilateral action in abrogating the con- tract wage scale and reducing wages in Oak Cliff- Golman Baking Company, 202 NLRB No. 72. In both cases, the employer repudiated the bargain he had made with the union, concerning a major term of the employment relationship, equally important in each case. There the employees lost part of their wages; here the employees lose all or part of their jobs. The flimsiness of the contract justification Respondent as- serts for its action, which we have noted above, can hardly distinguish the cases. Yet in Oak Cliff one of the Collyer majority joined us in finding the violation and the others, by their silence, apparently found the result acceptable. such unpredictability and lack of uniformity in deferring to arbitrators, the decision on violations of the Act fails to guide or inform, and only confuse, those attempting to apply our decisions to their circumstances. Underlying this controversy is an issue as to the proper unit in which to bargain. The Court of Appeals for the Fifth Circuit recently held, in a similar case where the employer sought to exclude from an ex- isting unit the employees in a new part of its enter- prise, that "The arbitrator can give only a final interpretation of the contract, and in representation matters it is clear that the parties are not at liberty to determine the appropriate unit." Boire v. International Brotherhood of Teamsters, Locals 79, 385, 390, and 512 [Pilot Freight Carriers], 479 F.2d 778 (C.A. 5, 1973). In rejecting the employer's argument that the inclu- sion or exclusion of the employees was a matter of contract and therefore should be arbitrated, the court further held (479 F.2d at 803): [W]hen the arbitration is part of a larger enter- prise that has as its alleged objective either the infringement of § 7 rights of numerous non-rep- resented employees or the frustration of an ongo- ing bargaining relationship, there can be no assurance that the use of the grievance machin- ery will serve to immunize the whole enterprise. The parties cannot by contractual agreement di- vest the Board's function to operate in the public interest, and this is so regardless of whether the contractual agreement is reached by consent or through an arbitrator's construction. The Respondent's goal here is to eliminate part of the Athens unit through assignment of all the Delaware work to Columbus, thereby partially combining the two units. The Board is quick to prevent unions from doing this against the will of employers, but in this case our colleagues are permitting an employer to do it against the union's will. If not, they would reject any arbitration award which permitted it, and thus there could be no point in deferring to arbitration. One final point deserves mention. In Boys Markets, Inc., v. Retail Clerks Union, Local 770, 398 U.S. 235, the Supreme Court has held that a strike over an asserted breach of a contract can be enjoined if a no-strike clause exists, even though the contract breach could be remedied by suit under Section 301 of the Act. With the Collyer majority finding that "management rights" clauses reduce all disputes to contract interpretations, and finding arbitrable ac- tions which the contract by its terms plainly does not permit and which both parties themselves thought and intended not to be arbitrable, the result is that in nearly every case Collyer compels arbitration, and thus creates the substantial equivalent of a no-strike clause with respect to these matters when they are unfair labor practices. Thus, a strike by the union over the employer's unilateral conduct can, under Boys Markets, seemingly be enjoined by the employer. Col- lyer therefore leaves the employer free to distort, ig- nore, or abrogate the contract in nearly any way he chooses-even in ways amounting to clear unfair la- bor practices, such as the elimination of a substantial part of the unit here-without having to risk a strike by the union. The Collyer majority has thus apparent- ly eliminated the right to strike where a contract with an arbitration clause is in existence, even though the employer has repudiated the contract; even though the repudiation is an unfair labor practice over which the union might otherwise strike despite a no-strike clause.' Our colleagues by this decision are thus ef- fecting a change in the law which Congress has for two generations refused to make, a return to gov- erning labor relations by injunction. In their view, a refusal to arbitrate has become worse than an unfair labor practice, contrary to the Congressional rejection of a provision expressly making a refusal to arbitrate an unfair labor practice? Accordingly, we dissent, and would determine the merits of the case. 1 Mastro Plastics Corp, 350 U.S 270 2 See II Leg Hist 2931, 2978, 3074 (1935) DECISION JENNIE M. SARRICA, Administrative Law Judge: This case, COLUMBUS & SOUTHERN OHIO ELECTRIC CO. initiated by charges filed on March 27, 1972, and a com- plaint issued on May 15, 1972, was tried before me at Co- lumbus, Ohio, on August 2, 1972. The complaint alleges that Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally transferring certain functions performed by em- ployees in its southern district to employees of its Columbus district without prior notice to or bargaining with the Union. Respondent's answer denies that the actions which it took with respect to work assignments were in contraven- tion of its bargaining obligations under the Act. All parties were represented and participated in the hearing. Subse- quent to the hearing counsel for each of the parties filed a brief. At appropriate times during the hearing and in its brief, Respondent requested that the issues be deferred for determination under the grievance and arbitration provi- sions of the collective-bargaining agreement between the Respondent and the Charging Party. Upon the record made before me and my observation of the demeanor of the witnesses and after careful consider- ation of the briefs, I make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Respondent, an Ohio corporation with offices in Colum- bus, Ohio, is engaged in the generation, transmission, and distribution of electrical power from its various plants locat- ed in southern Ohio. During the past year, which is a repre- sentative period, Respondent had a gross volume of business in excess of $250,000. During the same period Re- spondent purchased goods at its facilities in Ohio valued in excess of $50,000, which it caused to be shipped to it directly from points outside the State of Ohio. On the basis of these undisputed facts, I find that Respondent is, and has been, an employer as defined in Section 2(2) of the Act, engaged in commerce and in operations affecting commerce as de- fined in Section 2(6) and (7) of the Act. 11 THE LABOR ORGANIZATION INVOLVED Local 1266, International Brotherhood of Electrical Workers, AFL-CIO, herein called the Union , is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The questions presented by the pleadings, motions, and arguments are whether the actions taken by Respondent were in derogation of its obligation under Section 8(d), and in violation of Section 8(a)(5) and (1) of the Act, and wheth- er, without determining such issue, the issues raised involve matters of contract interpretation which can best be re- solved by the arbitration machinery of the contract between the Respondent and the Union. B. Background Respondent's operations cover some 25 counties in cen- 191 tral and southern Ohio, divided into geographical areas or districts which are not contiguous. The Columbus district embraces some 16 divisions in and around Columbus, Ohio, and the southern district is divided into 14 divisions, all but one of which are in the southern part of the State. The one exception is the Delaware division which is organizationally and by contract part of the Southern District but is to the north of Columbus adjoining other divisions in the Colum- bus district. These two districts were separately organized and certified in 1945 and 1946 by two separate locals of the IBEW, but since 1961 have been represented by the Union herein and covered by a single contract which has main- tained the separate identity of the historic units by provid- ing separate district and division seniority provisions, job bidding priorities, overtime assignment rights, and other matters. Certain classifications of employees, such as construction and maintenance crews, overhead line crews, surveying crews, and metermen or meter testers, perform their re- spective job functions in all divisions within their district but do not, as a rule, cross into the territory of the other district. Exceptions have been made, generally with the oral consent of the Union, to accommodate emergencies and to avoid subcontracting when the workload is particularly heavy in one district and light in the other.] Although, as noted above, it is geographically separated from the southern district by the entire Columbus district, the Delaware division has from the outset of collective bar- gaining remained a part of the Southern district serviced by the auxiliary crews in the southern district and covered by the seniority and other employee rights provisions estab- lished by contract for that district. Thus, the installation, repair, and servicing of electric meters in the Delaware geo- graphic territory always has been performed by metermen journeymen from Athens, Ohio, which is in the southern district and located some 85 miles away, rather than by similarly classified and skilled employees in the Columbus district less than 25 miles from Delaware. The Respondent has for some years been desirous of removing the whole Delaware division from the southern district and incorporating it into the Columbus district? It notified the Union well in advance of the latest contract negotiations of this desire and the reasons therefor, which included the economies involved in employee travel time of 2-1/2 hours each way from Athens versus 45 minutes from Columbus. When bargaining began Respondent included in the list of bargaining subjects submitted to the Union the matter of contract adjustments which would be necessitated by transferring the Delaware division to the Columbus dis- trict. The absorption of the Delaware division by Columbus was the subject of discussion for approximately 50 hours over a period of 20 of the 47 bargaining days and was i Respondent's labor relations supervisor testified that assignment of em- ployees to work in a district other than his own was "not frequent" and "if an assignment was of such magnitude that we felt it might cause some concern, we would share it with the Union " When the Union disagreed such matters have been handled under the contract grievance procedure. One such grievance, involving deliveries from a central warehouse in Columbus to various points in the southern district, culminated in arbitration 2 This proposed change was discussed during negotiations for at least one and possibly two prior contracts 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dropped by the Respondent at the last bargaining session without agreement for a contract change. The resulting col- lective-bargaining agreement is for a term from July 1, 1971, to July 1, 1974. C. Recent Events In January 1972, Respondent sent surveying crews from the Columbus district to perform work in the Delaware Division without prior notification to and consent of the Union. The Union filed a grievance which was settled by consent to such assignment rather than requiring the Re- spondent to engage an outside contractor to perform the work, as the Southern District surveying crew was not avail- able for the assignment. On or about March 21, 1972, again without notice to the Union or a request for consent thereto, Respondent re- moved the Delaware area meter records from Athens to the Columbus district office and assigned metermen from Co- lumbus to perform meter work in the Delaware division territory. The Union protested and, upon being advised that, not only would Columbus district crews perform meter work in the Delaware division in the future, but any other work that the southern district had been performing in the Delaware division was going to be performed by the Colum- bus district employees, filed the instant charge without filing a grievance under the contract grievance and arbitration provisions.3 Employees with up to 19 years' experience as journeymen wiremen in the Columbus district performed meter work in Delaware for the first time in March 1972, and have received such assignments several times since that occasion. The Union asserted that by these acts the Respondent deliberately violated and thereby repudiated their collec- tive-bargaining agreement. The Respondent asserted it had merely made work assignments which were within its pre- rogative under the management rights provision of the con- tract,4 and, after the charge was filed, urged the Union to pursue the grievance and arbitration route to resolve their dispute. 3 Union witnesses testified that Respondent's Employee Relations Depart- ment Manager stated he knew these actions violated the contract but that the Respondent was going to proceed as planned anyway and that there was nothing to talk about This statement is denied by Respondent's witnesses In view of my recommended disposition of the case I find it unnecessary to resolve the credibility issue raised by such testimony at this time 4 The manager of employee relations testified that "management had attempted to negotiate the entire Division , including seniority and all facets of that group into the Columbus District [but, having] exhausted the negotia- tions path to the fullest extent land having] failed to get what we had request- ed you have to fall back and regroup and see what does your current contract provide for Therefore, our next best course of action was that which our contract provides, and under the management's rights clause, this is what we intended to do and what we have done It is a matter of interpretation and work assignment accordingly There is quite a bit of difference between what we sought to negotiate and what we did We wanted the entire Division , including all of its functions , to be part of the Columbus District and to move the seniority of the people up there We recognized that in order to get the seniority of the people changed , it would be necessary to negotiate that with the Union " D. The Contract Provisions Article III of the current collective-bargaining agreement between the parties, entitled "Management and Union Re- lationship," in pertinent part, provides: Section 1. (a) Except as specifically limited by the terms and provisions of this Agreement, the Company shall retain all of the rights, powers, and authorities vested in it prior to the date of this Agreement. (b) The rights, powers, and authorities mentioned in (a) above shall include but shall not be confined to the following: 3. The authority to hire, promote, assign to shifts, maintain discipline and efficiency, and discharge employees for justifiable reasons. (c) Where the rights, powers, and authorities item- ized in (b) above are modified or limited by the terms and provisions of this agreement they shall only be modified or limited to the extent specifically provided therein. Article VII of the contract is entitled "Grievance Proce- dure-Arbitration." It provides, in part, as follows: Section 2. When a grievance arises with respect to the rights of employees hereunder, including suspension or discharge, it shall be considered and disposed of in the manner hereinafter provided. Section 5. Any grievance as defined in Section 2 above or any other dispute arising out of the interpreta- tion of the terms of this Agreement, or the application thereof, which has not been satisfactorily adjusted as hereinbefore provided, may be submitted to arbitration within forty-five (45) calendar days after final disposi- tion of the grievance in Step (3) of the grievance proce- dure. Section 6. Either party hereto desiring arbitration shall notify the other party of such desire in writing .... The decision of the majority of said panel, with respect to the issue or issues submitted to it, shall be reduced to writing by the panel and shall be final and binding upon the parties, subject to any state or federal laws applicable thereto. The arbitration panel shall have no authority to alter the terms of this Agreement in making its award. There follows clauses binding the parties not to resort to strike, slow down, cessation or stoppage of operations or lockout for any cause whatsoever. Article XI of the contract is entitled "Seniority-Columbus District" but contains numerous provisions dealing with working conditions of employees in that district. Included as Section 8(i) is a provision which would appear not to be limited to the Columbus district. There it is provided that: In order to avoid possible grievances the Company will discuss in advance with designated representatives of COLUMBUS & SOUTHERN OHIO ELECTRIC CO. the Union, promotions, demotions, layoffs, transfers and rehiring of employees in all classifications covered by this Agreement, except [certain limited situations]. Except as herein provided, promotions, demotions, transfer or layoff of employees covered by this Agree- ment made by the Company without discussion in ad- vance with designated Union representatives will not be considered permanent, until so discussed. E. Contentions of the Parties The General Counsel, relying on Westgate Painting and Decorating Corp., 186 NLRB 964, and Rochester Telephone Corporation, 194 NLRB 872, and the Union, relying on N.L.R.B. v. Benne Katz, 369 U.S. 736, contend that by the actions taken Respondent has sought unilaterally to effect changes in the contract that it was unable to achieve at the collective-bargaining table and that such changes in work- ing conditions effectuated during a contract term without notice to the Union and a request to bargain violate Section 8(a)(5) and (1) of the Act. Respondent denies that it failed and refused to bargain in good faith with the Union. Respondent does not deny that it acted unilaterally but defends such actions on the ground that this was a managerial decision which was eco- nomically motivated, and which did not vary significantly from what had been done, "on several occasions" in the past. Further Respondent contends there is no showing that the unilateral action has had an adverse impact on the bar- gaining unit, and asserts that the Union had an opportunity to bargain with respect to these matters during contract negotiations. For the theory of its defense, Respondent re- lies on Westinghouse Electric Corp. (Mansfield Plant), 150 NLRB 1574, and Shell Oil Company, 166 NLRB 1064, cases involving subcontracting of unit work. In any event, at the hearing and again in its brief, the Respondent urges that the complaint be dismissed and that the parties be required to resolve their dispute through the arbitration procedures of their collective-bargaining agreement under the policy ap- proach outlined in Jos. Schhtz Brewing Company, 175 NLRB 141, Collyer Insulated Wire, 192 NLRB 837, and subsequent cases. As support for the latter contention, Respondent points to the 30-year history of collective bargaining between the parties involving some 350 grievances handled a year with only from 3 to 5 per year going to arbitration; the contractu- al basis of the instant disagreement; and the absence of a claim of enmity on the part of respondent to employees' exercise of protected rights Further, although the Union did not file a grievance within the time therefore set forth in the grievance and arbitration provisions of the collective- bargaining agreement, Respondent has credibly asserted its continuing willingness to resort to arbitration under their contract clause which it asserts is broad enough to embrace this dispute. The General Counsel contends that the Collyer procedure of deferral to arbitration should not be applied in this case because Respondent's unilateral action was based not on "a good faith" and "substantial claim of contractual privilege" but rather on a "patently erroneous" contract interpreta- tion, and it cannot be said that such actions were "not 193 designed to undermine the union" or that "the situation was wholly devoid of unlawful conduct or aggravated circum- stances of any kind," criteria of exclusivity he asserts are required by Collyer and Schlitz. In furtherance of this con- tention the General Counsel argues that Respondent could not have in good faith based the use of Columbus district employees in the Delaware division territory on any right given to it in the contract; for had it viewed the contract as conferring such a right there would have been no reason to propose contract changes to permit such assignment and no need exhaustively to discuss this very matter during the recent contract negotiations. Respondent's failure to notify and seek the Union's consent prior to taking the action complained of, contrary to its prior practice and admitted anticipation of the Union's disapproval, is pointed to as further evidence of the absence of good faith on the part of Respondent. The General Counsel asserts that unilateral acts in such circumstances constitute abandonment of the very collective bargaining procedure the Respondent now seeks to have invoked in the place of Board sanctions. F. Analysis and Conclusion There are present in this case certain parallels to the situation before the Board in the Collyer case, which the Respondent has urged as controlling. There also exist cer- tain differences from Collyer which the General Counsel deems significant. Various factors listed among the consid- erations set forth in the decisions to defer to arbitration in the Collyer and Schlitz cases have been urged as essential criteria for the application of the deferral policy.5 However, it would appear from subsequent Board decisions that these were not intended as absolute prerequisites to the use of the deferral approach, nor are they definitive of the consider- ations which will enter into such a decision .6 Nevertheless, 5 These encompass requirements that (1) the question of contract sanction for the disputed action taken must be a threshold determination which is clearly within the expertise of an arbitrator, (2) the contract and its meaning must lie at the center of the dispute which involves substantive contract interpretation, each party asserting a reasonable claim in good faith, and the disputed action must not be patently erroneous but one based on a substan- tial claim of contractual privilege, (3) the arbitral interpretation of the con- tract will resolve both the unfair labor practice issue and the contract interpretation issue in a manner compatible with the purposes of the Act, the Act being involved only if the contract did not sanction the right to make the disputed change, (4) the contract between the parties involved unques- tionably must obligate each to submit to arbitration any dispute ansing under the contract and binding both parties to the results thereof, the contract arbitration provision itself must be broad enough to embrace the dispute, and the party charged with committing an unfair labor practice must have credi- bly asserted its willingness to resort to arbitration to settle the dispute; and (5) the parties must have had a long and productive bargaining relationship in which they mutually and voluntarily resolved the conflicts which inhere in collective bargaining, and there must be no showing of enmity to the exercise of employees' protected rights, the situation must be wholly devoid of otherwise unlawful conduct or aggravated circumstances of any kind; and the action taken must not have been designed to undermine the union 6 See Norfolk, Portsmouth Wholesale Beer Distributors Association et at, 196 NLRB 1150 (holding the issue of arbitrability should itself be submitted to the arbitrator), Wrought Washer Manufacturing Co, 197 NLRB 75 (holding a dispute as to meaning and application of contract containing binding arbitration provision is sufficient), National Radio Company, Inc, 198 NLRB No I (where the conduct may be contractually sanctioned but unlawful); Kansas Meat Packers, 198 NLRB No 2 (no deferral where apparent conflict Continued 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in my opinion, certain circumstances are basic to and must obtain before the Board will defer to the arbitration process and withhold decision in an unfair labor practice proceed- ing. These are that the participants in the dispute have, or are subject to, a collective-bargaining agreement containing binding grievance-arbitration provisions which are avail- able and broad enough to encompass the subject matter involved in the unfair labor practice case, and it may rea- sonably be anticipated that the arbitral resolution of the dispute would also resolve the unfair labor practice issue in a manner compatible with the purpose of the Act.' Here the current collective-bargaining agreement be- tween the parties does contain grievance-arbitration provi- sions broad enough to cover, indeed specifically applicable to, the issues raised by the dispute herein, whether these are deemed to involve rights of employees under the separate divisional provisions of the contract or management rights preserved by the contract and, although the time specified for initiating arbitration proceedings has expired, such pro- cedures are available as the Respondent has indicated its continuing willingness and desire that this matter be sub- mitted to arbitration.8 Because the dispute between the par- ties arises out of claimed contract rights it is reasonable to anticipate that interpretation of the contract provisions will resolve the unfair labor practice issues. For, if Respondent had the right under the management rights clause to assign employees in the Columbus district to perform the work in the Delaware division, there was no unfair labor practice committed even though Respondent had for some years sought to accomplish precisely this end through other spe- cific contract proposals. If, however, because of other con- tract provisions and/or limitations of management rights existing prior to the date of the agreement, it is determined that Respondent did not have the contract right to make the change it did, presumably the arbitration panel will at a between interests of employees on the one hand and both the employer and union on the other existed), Brotherhood of Teamsters & Auto Truck Drivers Local No 70, (National Biscuit Co ), 198 NLRB No 4 (where the contract did not compel arbitration absent agreement but provided for mandatory sub- mission to a bi-partite panel), Peerless Pressed Metal Corporation, 198 NLRB No 5 (involving voluntary contract arbitration procedure), Southwestern Bell Telephone Company, 198 NLRB No 6 (although the conduct was argua- ble excepted from the grievance procedure), Appalachian Power Company, 198 NLRB No 7 (deferred despite suggested antiunion hostility), LEM, Inc, d/b/a Southwest Engraving Co et at, 198 NLRB No 99 (involving dispute over alleged failure to honor specific contract terms), Joseph T Ryerson & Sons, Inc, 199 NLRB No 44 (where without regard to contract interpretation, effectuation of the statutory scheme requires exercise of the Board's authority) 7 See Eastman Broadcasting Company, Inc, 199 NLRB No 58 9 The fact that the contract terminology with respect to arbitration uses the permissive "may" rather than "shall" is of no significance The clause in- volved in Collyer also used "may" and the Board has since rejected the argument that such langauge choice constitutes an impediment to its deferral rule See Western Electric, Inc, 199 NLRB No 49, at fn 3 minimum require restitution and contract adherence, reme- dies comparable to the Board's normal order in such cases and compatible with the purposes of the Act.9 I am satisfied that present in this case are the conditions essential to a deferral of the issues involved for resolution by the parties within the framework of their voluntarily estabhshed griev- ance-arbitration procedure. For the reasons set forth above, I find that it will best effectuate the policies of the Act to decline at this time to decide this case on the merits and therefore recommend that, without prejudice to any party, the Board refer the matter to arbitration under the existing contract between the parties, retaining jurisdiction for the purpose of assuring that the matters in dispute will be resolved in a manner consistent with the standards set forth in Spielberg Manufac- turing Company, 112 NLRB 1080. Upon the foregoing findings, conclusions and the entire record, and pursuant to Section 10(c) of the Act, there is issued the following recommended Order: ORDER 10 The complaint is dismissed in its entirety except that jurisdiction of this case is hereby retained solely for the purpose of entertaining an appropriate and timely motion for further consideration upon a proper showing that (a) the disputes have not, with reasonable promptness after the issuance of this Decision, either been resolved by amicable settlement in the grievance procedure or submitted prompt- ly to arbitration, (b) the grievance or arbitration procedures have not been fair and regular or have reached a result which is repugnant to the Act, or (c) the decision of the arbitrator is not wholly diapositive of the issues in this case. 9 Contrary to the General Counsel, I do not view Respondent 's sudden switch to a contract interpretation approach after years of trying to obtain specific contract provisions permitting the change in work assignment, as necessarily establishing that its recent reliance on the management nghts clause assertion is in bad faith Even assuming this to be the case, if Respon- dent in fact had such a right, its sincerity in asserting that right would seem immaterial, and if it did not have this right the inherent unlawfulness of its unilateral action herein would not depend upon specific proof of subjective bad faith N L.R B v Katz, 369 U.S 736, 743 Nor would I agree with Respondent that the fact it did bargain extensively with the Union on this subject dung contract negotiations relieved it of any obligation to notify the Union and bargain with it again on the proposed changes before it put them into effect The impact of these factors in an unfair labor practice determina- tion, as well as the question of whether Respondent unilaterally imposed conditions it proposed and lost at the bargaining table, need be assessed only if arbitration proves unsuccessful or unsatisfactory in resolving the issues hereinafter deferred See Collyer, supra National Radio Company, Inc, 198 NLRB No 1. 10 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