Harley Davidson Motor Co., Inc.

HARLEY DAVIDSON MOTOR CO 433 Harley Davidson Motor Co., Inc., AMF and Local 209, Allied Industrial Workers of America, AFL- CIO. Case 30-CA-2699 October 30, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On July 24, 1974, Administrative Law Judge Ar- thur Leff issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. 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 his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Harley Davidson Motor Co., Inc., AMF, Milwaukee, Wisconsin, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Ad- ministrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain with Local 209, Allied Industrial Workers of America, AFL- CIO, by declining to meet with the selected ne- gotiating committee of that Union for the pur- pose of negotiating a collective-bargaining agreement relating to rates of pay, wages, hours, and other terms and conditions of employment of the employees in the appropriate unit de- scribed below because of the presence on that committee of any person who is not an employ- ee of ours or who is a member or official of another labor organization whom the Union has invited to attend the negotiations for the pur- pose of participating in the discussions or advis- ing and consulting with it. WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7 of the Act. WE WILL meet and bargain, upon request of the Union, with the selected bargaining commit- tee of the union, including any members or offi- cials of other labor organizations whom the Union has invited to attend the negotiations for the purpose of participating in the discussions and advising and consulting with it on matters related to the negotiation of a collective-bar- gaining agreement for the aforesaid unit. The appropriate bargaining unit is: All employees of Harley Davidson Motor Co., Inc., AMF, employed in all plants operated by it in Milwaukee County and counties bor- dering Milwaukee County, excluding foremen and assistant foremen who are fulltime super- visors, cooperative students, timekeepers and timestudy men, graduate engineers in training, salaried office employees, employees especially hired to protect company property, watchmen, toolroom and model shop employees, guards, and supervisors as defined in the Act. HARLEY DAVIDSON MOTOR CO, INC, AMF DECISION STATEMENT OF THE CASE ARTHUR LEFF, Administrative Law Judge: Upon a charge filed by the above-named Union on April 25, 1974, the General Counsel of the National Labor Relations Board, by the Regional Director of Region 30, issued a complaint, dated May 17, 1974, against the above-named Company, Respondent herein, alleging that Respondent by conduct hereinafter specified had engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the National Labor Relations Act As amended at the hearing, the complaint further alleged that a strike of Respondent's employees which began on May 31, 1974, was caused and prolonged by the alleged unfair labor practices. Respondent filed an answer in which it denied the alleged unfair labor practices and also alleged certain affirmative defenses to be referred to below A hearing was held at Milwaukee, Wisconsin, on June 6, 1974. Briefs were filed by the General Counsel, by the Charging Party, and by Respondent on June 27, 1974. 214 NLRB No. 62 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case and from my observa- tion of the witnesses, I make the following: tion is also disputed by the General Counsel and the Union. FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Wisconsin corporation and a subsidiary of American Machine and Foundry Company. Its plants, as well as its principal office, are located in and about Milwaukee, Wisconsin, where it is engaged in the manufac- ture of motorcycles, golfcarts, and related items. During the past year, a representative period, Respondent sold and shipped in interstate commerce goods valued in excess of $50,000 directly to points located outside the State of Wis- consin. During the same period, Respondent received in interstate commerce goods valued in excess of $50,000 di- rectly from points located outside the State of Wisconsin. Respondent admits that it is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. It is so found. II. THE LABOR ORGANIZATION INVOLVED Local 209, Allied Industrial Workers of America, AFL- CIO, herein called the Union and at times Local 209, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues The controversy in this case centers about Respondent's refusal to participate in contract negotiations with the Union unless the Union confined its negotiating team to its elected bargaining committee composed of employees of Respondent in the bargaining unit, plus one representative of its parent international. The complaint alleges in sub- stance that, by refusing to meet and bargain with the Union unless that condition was met, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. The complaint further alleges that a strike of the bargaining unit employees to protest Respondent's refusal to bargain save on the condition stat- ed was an unfair labor practice strike. Respondent asserts as a defense to the alleged unfair labor practices that the limitation on the composition of the Union's bargaining team which it insisted upon was one that was required by contract. It urges that its contract contention, with which the General Counsel and the Union take issue, should be submitted to arbitration and that the Board, applying its Collyer principle, should defer all issues in this case to such arbitration. Additionally, or alternatively, Respondent al- leges in substance that it was justified in refusing to deal with the negotiating committee the Union designated be- cause the Union's insistence on that committee and its strike which followed were unlawfully designed to force Respondent to engage in bargaining beyond the scope of the appropriate collective-bargaining unit. The last conten- B. Background Local 209 (the Union) now is, and for approximately the past 20 years has been, the certified and exclusive bargain- ing representative of some 1,600 of Respondent's employ- ees at its three Milwaukee plants.' Since 1955, Local 209 and Respondent have entered into a series of collective- bargaining contracts, the most recent of which was in ef- fect from July 1, 1972, until May 31, 1974. All of these contracts were negotiated on behalf of Local 209 by a com- mittee of five or six in-plant union officers, called the "Bar- gaining Committee," plus one International representative (Norbert Kane) of Allied Industrial Workers Union (AIW), Local 209's parent International. The Local 209 Bargaining Committee, one of the standing committees provided for in Local 209's bylaws, is composed of the Local's president, vice president, and four (formerly three) elected committeemen, all employees of Respondent. The Local's bylaws, in addition to empowering the Bargaining Committee to perform grievance-handling functions at up- per levels, provide that the Bargaining Committee "shall do all bargaining for this Union." Respondent, as noted above, is a subsidiary of American Machine and Foundry Company (AMF), a conglomerate corporation. The various subdivisions and subsidiaries of AMF contain numerous employee bargaining units repre- sented by various unions other than the Union here in- volved. Although contract negotiations with representa- tives of the bargaining units in the AMF chain are directly handled by local management on an individual unit basis, all such collective bargaining, where economic items are involved, is coordinated through the AMF corporate of- fice Local management is required in advance of negotia- tions to submit to the corporate office its recommended bargaining positions for approval, modification, or rejec- tion. The corporate office then establishes the parameters of the bargaining positions that local management is al- lowed to take in negotiations, and thereafter these may not be deviated from without express instruction from the cor- porate office. In October 1973, the AFL-CIO Industrial Union De- partment (IUD) established the IUD-AMF Coordinated Bargaining Committee The Committee is composed of representatives or delegates of some six or more interna- tional unions having locals that represent employee bar- gaining units at the various AMF-affiliated plants. The Committee was created with the objective of aiding the local unions to achieve their bargaining goals of common 1 The employee unit, admitted by Respondent and herein found to be appropriate for the purposes of collective bargaining within the meaning of Sec 9(h) of the Act, is more particularly defined as follows All employees of Respondent employed by it in all plants operated by it in Milwaukee County and counties bordering Milwaukee County. excluding foremen and assistant foremen who are full-time supervisors, cooperative students. timekeepers and itmestudy men, graduate engi- neers in training, salaried office employees, employees especially hired to protect company property, watchmen, toolroom and model shop employees, guards, and supervisors as defined in the Act HARLEY DAVIDSON MOTOR CO 435 interest by coordinating their negotiating etforts, providing them with expert assistance and advice at negotiating ses- sions, and also creating a mechanism for the exchange of information of mutual interest. The Committee decided, subject to the approval of affected locals, to adopt a pro- gram for coordinated bargaining during 1974. The pro- gram was limited to four areas that were considered as of nationwide importance to all AMF employee bargaining units-pensions, cost-of-living increments, hospital, surgi- cal, and medical insurance, and life insurance It was agreed at the initial IUD-AMF meeting that the president of each international union represented at the meeting should send an identical letter to the AMF's chief execu- tive officer requesting anoint meeting with AMF to discuss the issues in the four benefit areas mentioned above that it was anticipated would become part of the upcoming con- tract negotiations in all the bargaining units affected. It was further agreed that if AMF was not responsive to the request for a joint meeting an effort would be made to achieve coordinated bargaining by having IUD-AMF committeemen attend local negotiating sessions to assist the locals in their negotiations on the national program. It was also agreed at this and at subsequent IUD-AMF meetings that the role of IUD-AMF-designated represen- tatives at local negotiations would be limited to providing assistance in the four areas covered by the IUD-AMF na- tional program ; that IUD-AMF representatives on a local's bargaining committee were to have neither voting rights on the local committee nor veto power over any agreement the local union was willing to accept; and that, although the local was to report to the IUD before effect- ing a settlement of contract terms, any settlement it might reach was not to be contingent upon IUD-AMF approv- al-in that respect the local unions were to retain full au- tonomy. At a Local 209 membership meeting in November 1974, a full report was made to the membership of the IUD- AMF program and of the details of IUD-AMF affiliation, including the limitations mentioned above on IUD in- volvement in local negotiations. Following that report, the membership voted to have Local 209 participate in the IUD-AMF program and to permit IUD participation in its upcoming negotiations with Respondent On December 7, 1973, the president of AIW wrote the chairman of the board of AMF suggesting the desirability of AMF meeting with the AIW and other international unions representing employees in the AMF chain to dis- cuss issues in the four benefit areas covered by the IUD- AMF national program. Identical letters were sent at about the same time to the AMF board chairman by the interna- tional presidents of the other labor organizations that were participants in the IUD-AMF program In response to the AIW letter, F. T. Swaine, Respondent's director of indus- trial relations, advised the AIW president, in substance, that the AMF was unwilling to meet in the manner that had been suggested, and that negotiations would have to be conducted on a unit-by-unit basis as it had been in the past. Thereafter, no further request was ever directed by Local 209 or its parent international either to Respondent or AMF for contract negotiations that would extend in scope beyond unit lines. C. The Specific Events on Which the Complaint's Allegations Are Based On February 11, 1974, more than 3 months before Local 209's then current labor agreement was to expire, Norbert J. Kane, the AIW regional representative assigned to Local 209, informed Respondent by letter that Local 209 intend- ed to have an expanded bargaining committee present dur- ing the upcoming negotiations for a new contract. That committee, he advised Respondent, would consist of the Local's elected Bargaining Committee and, in addition, representatives of the IUD-AMF Committee who would be there "to advise and counsel Local Union 209's elected Bargaining Committee." Assuring Respondent that the ex- panded bargaining committee would represent only Local 209 in the negotiations, Kane asked Respondent to advise him promptly if it had any objections to the expanded bar- gaining committee so that the issue might be resolved be- fore the first meeting. Kane explained that he wished to avoid a confrontation on this issue such as had recently occurred between the Company and another union in ne- gotiations relating to another bargaining unit. Respondent's industrial relations director, Swain, re- sponded to Kane's letter under date of February 25. Re- spondent did indeed object to an expanded union bargain- ing committee, Swain made it clear and Respondent would expect the Union in the forthcoming negotiations to con- fine its bargaining team, as it had in past contract negotia- tions, to its elected Bargaining Committee plus one AIW regional representative. It was Respondent's position, Swain asserted in his letter, that the then current labor agreement between Respondent and Local 209 obligated Local 209 to conduct its contract negotiations only through its elected Bargaining Committee. Notwithstanding that re- striction, added Swain, Respondent "naturally" was willing to "continue the historical practice" of also permitting the participation of a single AIW regional representative in the negotiations. To support Respondent's position, Swain re- ferred to two provisions in the contract The first was sec- tion 6.14 of article VI, an article labeled "Seniority" which deals exclusively with that subject. As is apparent from its language, quoted in full in the marginal note,' that section on its face does no more than specify the Local 209 offi- cials, including among them the members of the Bargain- ing Committee, limited to six in number, who as employees are accorded supersentority rights under the contract. The other contractual provision referred to by Swain was para- graph 11.91 of article XI, labeled "General " That section simply recites, in substance, that all the agreements and understandings between the parties have been embodied in the written contract, and that there are no others. On March 11, 1974, Local 209 served formal notice of its "desire to terminate, negotiate, modify and/or amend" its contract with Respondent for the term expiring May 31, 2 "6 14 The members of the Executive Committee of the Union (not to exceed ten ( 10) in number), the members of the Bargaining Committee (not to exceed six (6) in number), and the stewards (not to exceed forty (40) in number), shall not lose employment or be transferred because of seniority rules At the close of their term of office their employment shall be based on their actual seniority " 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1971. Kane and Swain thereafter arranged to open negotia- tions for a new contract on the morning of April 22. Local 209 designated seven individuals to serve on its negotiating committee on the opening day of bargaining. Included on that committee were Kane , four of the six members of Local 209's elected Bargaining Committee, and two others-John Ciparro, the coordinator of the IUD-AMF Coordinated Bargaining Committee, and Rob- ert White, the director of coordinated bargaining for the International Union of Electrical Workers. Two members of Local 209's elected Bargaining Committee abstained at the suggestion of Kane from attending the opening negoti- ating session on April 22. This was done to obviate any objection by Respondent that Local 209 was using an ex- panded bargaining committee greater in size than the nego- tiating committees it had used in prior contract negotia- tions. Respondent's negotiating committee was composed, as in prior years, of local management officials , headed by Swain. At the start of the meeting on April 22, before negotia- tions could get underway, Swain wanted to know who the "strangers" were on the Union's side of the bargaining ta- ble. When Ciparro and White were identified, Swain ob- jected to their presence , stating that Respondent had previ- ously declared its position with regard to "outsiders" on the Union's bargaining committee . When Kane pointed out that the Union's committee was composed of the same number of individuals as in the past, Swain stated that it was Respondent's position that all members of the Union's committee, with the exception of Kane, had to be employ- ees of Respondent in the bargaining unit, and that this was the basis in which Respondent was objecting to the pres- ence of Ciparro and White on the Union's bargaining team. Kane then read a legal opinion from the Union's counsel, defending the Union's right to include so-called "outsiders" on its committee. But Swain , unmoved, de- clared that he was recessing the meeting to seek legal ad- vice from Respondent's counsel. As Swain prepared leave, White asked him whether he understood that White was there only to bargain for Local 209 with respect to the contract unit. "I understand," Swain replied , and he and the other members of Respondent's negotiating committee then walked out of the conference room. Respondent's negotiators did not return to the meeting place that day, although the union committee waited until the afternoon for them to do so. Late in the afternoon Kane called Swain , reaching him at the office of Respondent's attorney. Swain said he did not yet have an answer to the question on which he had sought legal coun- sel. He arranged with Kane , however, to reconvene the meeting the following morning. The next morning, April 23, the Union appeared at the conference room with an enlarged committee . Present for the Union that day were Kane, all six members of Local 209's elected bargaining committee, Ciparro and White, and four members or officials of other unions that were participants in the IUD-AMF collective-bargaining pro- gram. Swain opened this meeting, as he had done the day before, by asking Kane to identify the "strangers" on the Union's committee . When that was done, Swain reiterated Respondent's previously declared objection to the presence of "outsiders." Respondent , Swain said, was ready to bar- gain with the Union , but only if its bargaining committee, save for Kane, was composed exclusively of employees of Respondent? And with that, the company negotiators again walked out of the meeting. Thereafter, at least until the date of the hearing (June 6), there were no further negotiating meetings . On three occa- sions in April and May, Kane requested Respondent in writing to meet and bargain with the Union for the purpose of negotiating a new collective-bargaining agreement, each time assuring Respondent that the Union would confine its bargaining to the negotiation of a contract for the employ- ees in the bargaining unit represented by Local 209. Respondent's response to each of these requests , also stat- ed in letters it addressed to its employees , was that it was ready and willing to meet with the "contractually recog- nized bargaining representatives of its employees as [it] had done in past negotiations," but not with a Local 209 ex- panded bargaining committee on which "strangers" were present.4 The Union was unwilling to submit to the condi- tion imposed by Respondent for bargaining , asserting that its choice of negotiators was strictly an internal union mat- ter, not limited by any contractual provision, and one with which Respondent could not lawfully interfere. The result was a stalemate, which still remained unbroken at the time this case was heard. At a special Local 209 membership meeting held on May 19, 1974, a motion was made and carried to grant Local 209's executive board authority to call a strike based on Respondent's continued refusal to bargain with the Union On May 29, the executive board voted to call such a strike. That same day Kane telephoned Swain in a last-ditch at- tempt to persuade Respondent to enter into contract nego- tiations with Local 209. Swain replied that he was without authority to alter Respondent's previously declared posi- tion s The strike began at midnight on May 31. It was still in progress at the time of the hearing 3 Swain's testimony at the hearing reflects that Respondent's basic objec- tion to the Union's expanded bargaining committee was directed , not to the number of individuals serving on it, but to the nonemployee status of some of its members Q What would the reasons [be] that the corporation [ was] against meeting with the expanded committee-what were the reasons that were discussed'' A We wanted to continue bargaining with our employees and not with outsiders Q Was that the only reason' A Yes 4In a letter addressed to employees but not to the Union. Respondent also stated a willingness to submit to arbitration the question of whether it was correct in interpreting its contract with Local 209 as requiring the Local's bargaining committee to be made up exclusively of Respondent's employees Respondent did not , however, initiate any action to submit the matter to arbitration Whether it could have done so successfully is highly questionable in light of the narrow nature of the contract's arbitration provi- sions The contract, then still in force, contained no general provision mak- ing arbitrable any otherwise unresolved question relating to the interpreta- tion or application of the contract it provided for the submission to arbitra- tion of only those unresolved employee grievances which involved "a claim that the Employer had violated an express provision of this agreement " The contract gave the Union 15 days after the Employer 's final answer to such a grievance within which to submit it for arbitration 5 Swain's testimony at the hearing reflects that such authority would have to come from AMF's corporate headquarters HARLEY DAVIDSON MOTOR CO D. Consideration of Respondent's Defenses, A nalvsis, and Concluding Findings The basic issue in this case is whether Respondent's re- fusal to engage in contract negotiations with the Union because of the presence of "outsiders" on the Union's ne- gotiating committee constituted an unlawful refusal to bar- gain. As found above, the justification which Respondent initially advanced for its position was that the Union was required under its then existing labor agreement with Re- spondent to restrict the composition of its negotiating team to employees of Respondent who were members of the Union's elected bargaining committee This still is the pri- mary ground upon which Respondent relies as a defense to the unfair labor practice allegations of the complaint. Re- spondent, however, now asserts as a further defense that the Union, by including in its committee personnel from other union participants in the IUD-AMF coordinated bargaining program , was unlawfully attempting to force Respondent against its wishes to engage in bargaining be- yond the scope of the unit the Union represented , i e , on a multiunit basis As an additional ground for dismissing the complaint-one that is tied to its contract defense-Re- spondent urges that the issues of this case should be defer- red to arbitration under the Board 's Collyer 6 doctrine Setting aside for the moment Respondent 's contract and Collyer defenses, the applicable principles of law that must govern decision in this case are clear. It has long been settled that, as a corollary to other rights and obligations that are expressly granted and imposed by the Act,' each party of the collective -bargaining process has the right to choose whomever it wants to represent it in formal labor negotiations , and the other party has a correlative duty to negotiate with the appointed agents . True, that right has been held not to be an immutable one 8 But, as was observed by the court in General Electric Company v. N.L.R.B., 412 F.2d 512, 517 (C.A . 2, 1969), the "exceptions to the general rule that either side can choose its bargaining agents freely . . . have been rare and confined to situations so infected with ill will, usually personal , or conflict of interest, as to make good faith bargaining impractical." As was further observed by the court in that case , the statuto- ry policy favoring the free choice of bargaining representa- tives is an important one, and a "considerable burden," therefore, rests on a party who would justify a refusal to bargain because of the presence of undesired persons on the other party 's bargaining committee to establish that the participation of such persons in the negotiations would create a "clear and present danger to the collective-bar- gaining process." The right of a union to free choice in the selection of its contract negotiators has been held applicable in coordinat- ed bargaining situations of the kind present in this case. In cases involving factual circumstances substantially identi- cal to those in the case at hand, the Board with court sup- 6 Collyer Insulated Wire, 192 NLRB 837 (1971) 7 Sec 7, 8(a)(l) and (5), 8(b)(1)(A) and (3) 8 E g, N L R B v Kentucky Utilities Company, 182 12d 810 (C A 6, 1950), N L R B v international Ladies' Garment Worters t mon [State Belt Apparel Contractors[. 274 F 2d 376 (C A 3, 1960) 437 port has consistently ruled that a union bargaining agent is entitled to include members of other unions on its negotiat- ing committee, and that an employer is not lawfully enti- tled to refuse to deal with that committee so long as the committee seeks to bargain solely on behalf of the bargain- ing unit for which the union is the representative. General Electric Co., 173 NLRB 253 (1968), enfd. 412 F.2d 512 (C A. 2, 1969); Minnesota Mining & Manufacturing Compa- ny, 173 NLRB 275 (1968), enfd. 415 F.2d 174 (C A. 8,1969); American Radiator & Standard Sanitary Corpora- tion, 155 NLRB 736 (1965), enforcement denied on other grounds 381 F.2d 632 (C.A. 6, 1967); The Standard Oil Company, 137 NLRB 690 (1962), enfd. 322 F.2d 40 (C.A. 6, 1963) 9 As noted above, Respondent seeks to bring itself within the exception indicated in the cited cases, contending that in this case the Union's insistence on including "outsiders" in its expanded bargaining committee was aimed at-and if acceded to would have inevitably resulted in-requiring Respondent in its contract negotiations with the Union to engage in bargaining beyond the scope of the Local 209 bargaining unit. In light of the Union's express disclaimer of such a purpose, a "considerable burden" rested on Re- spondent to establish that, when it refused to meet and bargain with the Union's designated negotiating commit- tee, it had an adequate basis for concluding this was so. I find on all the evidence that Respondent has not carried that burden. To support its contention in that respect, Respondent, as reflected in its brief, relies on the following items in evi- dence. (1) the letters sent to the AMF's chairman of the board in December 1973 by AIW and other international unions suggesting the desirability of a multiunion meeting with AMF to discuss the benefit issues involved in the IUD-AMF national program; (2) a Local 209 newsletter, "The Unity News," distributed to Respondent on or about May 26, 1974 (more than a month after Respondent's ini- tial refusal to meet with the Local 209 committee), and (3) several of IUD's internal letters and memoranda which re- late to its coordinated bargaining efforts regarding AMF. Little, if any, significance can be attached to the propos- al made to AMF in December 1974 for a multiunion meet- ing in light of subsequent developments. When that pro- posal, which certainly was not impermissible in itself, was rejected by AMF, the Union took "no" for a final answer and never thereafter revived its request, but instead there- after focused on conducting its negotiations with Respon- dent on an individual unit basis, repeatedly assuring Re- spondent that the expanded bargaining committee it select- ed would confine its bargaining solely to the Local 209 unit. The issue of "Unity News" to which Respondent refers contains a brief generalized discussion of the reasons lead- ing to the establishment of the IUD-coordinated bargain- ' In each of the above-cited cases, except Standard Oil, the charging union was at the time of the employer's refusal to bargain a participant in an IUD-sponsored coordinated program, the strategy, tactics, and objectives of which appear to have been the same as those of the IUD-sponsored coordi- nated bargaining program in this case In Standard Oil, the coordinated bargaining was limited to locals of a single international and was not IUD- sponsored, but otherwise appears to have involved the same general type of union cooperation as in the other cases 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing program, the nature of that program, and its goals. The type of coordinated bargaining that is there described is the same kind of interunion cooperation and exchange of information which the Board and the courts in the above- cited cases have found not reason enough to justify curtail- ing a bargaining agent's exercise of its normal right freely to choose it own negotiators. I find nothing in the "Unity News" discussion of coordinated bargaining that is neces- sarily inconsistent with, or that refutes, the Union's stated purpose to confine bargaining to the Local 209 unit.10 Nor is that stated purpose refuted by the internal IUD letters and memoranda which Respondent placed in evi- dence. Respondent has abstracted from those documents several sentences, at best of an ambiguous nature even when read in isolation, on which it would support an infer- ence that Local 209, as well as all other IUD-AMF affiliat- ed unions, ceded to the coordinated bargaining committee decisional control over any settlement that might be reached in the four benefit areas in the IUD-AMF's na- tional program, thereby in effect, though not in form, fore- closing separate unit bargaining and requiring coalition bargaining. Any such suggestion that might otherwise be gleaned from the ambiguous statements on which Respon- dent relies is, however, clearly overcome by all the docu- mentary evidence, as well as the credited testimony of Keith Kirchner, Local 209's delegate to the IUD-AMF. The record as a whole, I find, clearly establishes that the Union, notwithstanding its commitment to consult with the committee, retained the decisional freedom to enter into any agreement in its own unit that satisfied its desires, re- gardless of the position of other unions or of the commit- tee. It may be that Respondent genuinely apprehended, not- withstanding the Union's express disclaimer, that the Union's expanded bargaining committee would direct its energies toward coalition bargaining. But this did not ex- cuse Respondent's refusal to meet with the committee. Here, as in the other cases cited above, Respondent's refus- al was premature. The following language from the Board's decision in General Electric, supra at 254, is precisely appo- site here: ... the fact [is] that Respondent left the negotiating table before negotiations began, and, therefore, before it had an opportunity to determine whether the [un- ion] committee had, as it professed, come to negotiate an agreement only for the [unit representative]. As noted above, the Union . . . had disclaimed any in- tent to engage in coalition bargaining. Under these circumstances, as Judge Frankel pointed out, 10 Respondent in its brief stresses that a purpose of coordinated bargain- ing, as described in "The Unity News," is to "reestablish union bargaining power on a company-wide level " Companywide bargaining power is not however, synonomous with companywide bargaining There is, of course, nothing improper in unions cooperating with each other to enhance their individual bargaining power As was stated by the court in the General Electric case , supra at 519 , " It would be nonsense to say that [the union's] purpose [in selecting a mixed bargaining committee ] was not to increase its bargaining strength, but that goal is a normal one for unions or employers " What the [union] was bent in doing could only be de- termined ... by doing what respondent chose not to do-by staying and bargaining and seeing whether the [union] had lied when it said it had come to negotiate only for its own agreement. Having found that Respondent was not otherwise law- fully warranted in refusing to meet with the Union's ex- panded bargaining committee that included "outsiders," I turn to a consideration of Respondent's claim that the Union was contractually obligated in the negotiations for a new labor agreement to restrict the composition of its ne- gotiating team to Local 209's elected bargaining commit- tee. Respondent rests that claim basically on the provisions of section 6.14 of the contract's "Seniority" article-quoted in full in footnote 2 above-a claim which it says is but- tressed by "historical practice" and by the provisions in the Union's bylaws defining the functions of its bargaining committee.I I Respondent's interpretation of section 6.14 as a limitation on the Union's choice of contract negotiators appears to me so patently unsupportable as to approach absurdity. All that section purports to do on its face is to include members of the Union's bargaining committee within the group of the Union's committeemen and stew- ards who are to be accorded supersemority and to specify the number of those in that category. It does not purport in any way to deal with the question of whom the Union may select as its representatives for contract bargaining. Re- spondent adduced no evidence to indicate that that section was ever intended to have the meaning Respondent would ascribe to it. The evidence in the record on that point is all to the contrary. Kane, the AIW representative who has been negotiating contracts with Respondent on behalf of Local 209 for upwards of 20 years, testified credibly and without contradiction that the only discussions concerning that clause that had ever come up in past contract negotia- tions related to the number of persons to be covered by that clause; and that nothing had ever been said that would suggest an intent to have that clause read as a limitation on the union selection of contract negotiators. The construc- tion Respondent would give that clause would operate as a waiver by the Union of its statutory right to select whom- ever it wishes for the purpose of collective bargaining. Such a waiver, the law is clear, must be cast in clear and unmis- takable language. 12 Under that standard, or, for that mat- ter, under any other standard, Respondent's reading of sec- tion 6.14, 1 find, cannot be sustained. Nor is Respondent aided in its position by its arguments based on "historical practice." If Respondent were correct in its contract interpretation, then the participation of an AIW international representative in contract negotiations 11 Respondent in its brief also refers to some seven sections of the con- tract, besides sec 6 14 which mention the bargaining committee Five of them---secs 2 14 2 41 2 51, 2 61 and 4 58(f)-relate to the role of the bar- gaining committee in grievance procedures The other two--secs 3 51 and 7 12-relate to certain notices that must be given the bargaining committee where work hours are to he changed or layoffs are to occur Respondent's brief does not explain their relevance, but it is obvious from a reading of them that they are even less in point than sec 6 14 '2 See e g, The Timken Roller Bearing Co v N L R B, 325 F 2d 746 (C A 6, 1963) HARLEY DAVIDSON MOTOR CO would have been impermissible. Yet the record shows that over the course of many years International Representative Kane actively participated in contract negotiations, with- out objection from Respondent and without an attempt to amend the contract to conform to practice In any event, it is clear that the Union's practice in the past of limiting the composition of its bargaining committee , except for Kane, to employees of Respondent did not confer on Respondent a prescriptive right, equal in status to a contractual right, to have that practice continue. Respondent's argument based on the Union's bylaws stands on no firmer footing. Apart from the fact that Local 209's membership body, which had control over the Local's bylaws, approved in this instance a deviation from the bylaws with respect to the negotiations here involved, the law is well settled, as stated in the Board's decision in American Radiator, supra at 744, that Respondent has no standing and no privilege to probe into the internal arrangements of a union or to con- cern itself with whether or not the Union conforms its actions with self-imposed procedural requirements in the designation of negotiators. For an employer must deal with spokesmen or negotiators put forward by the Union without regard to whether or not they are selected in keeping with the Union s rules. . Left for disposition, then, is Respondent's contention that its contract claim raises a question of contract inter- pretation calling for invocation of the Board's Collyer poli- cy and requiring deferral to arbitration of all issues in this case. I reject that contention as without merit In Collyer, supra at 841, the Board, quoting from its earli- er decision in Jos. Schhtz Brewing Company, 175 NLRB 141 (1969), stated the following as the conditions under which it would consider deferral to arbitration appropri- ate: where . . the contract clearly provide,, for grievance and arbitration machinery, where the unilateral action taken is not designed to undermine the Union and is not patently erroneous but rather is based on a sub- stantial claim of contract privilege, and it appears that the arbitral interpretation of the contract will resolve both the unfair labor practice is,,ue and the contract interpretation issue in a manner compatible with the purposes of the Act.. . These conditions, I find, are not satisfied in this case in various respects. First: It is most doubtful, for reasons stat- ed in footnote 4, above, that the matter in question is cog- nizable as an arbitrable dispute under the provisions of the contract which was in effect at the time of Respondent's initial refusal to bargain That contract, as noted, expressly limited arbitration to unresolved grievances involving "a claim that the Employer had violated an express provision of the contract." The matter in question does not appear to involve such a claim . Moreover. even if the propriety of Respondent's refusal, prior to May 31, 1974, to bargain with the Union's expanded committee was subject to arbi- tration under the contract then in force, it is difficult to see 439 how Respondent's continued refusal after that date would still be governed by a contract no longer in force. Second Respondent's asserted contract justification for refusing to negotiate with a union committee containing "outsiders" is based, not on a "substantial" claim of contract privilege, but, rather, as found above, on a claim that is "patently erroneous." Third: This case involves basically a statutory dispute-the right of a union to select its own bargaining agents-that goes to the heart of the Act's purposes and policies. It is one, therefore, that appropriately should be determined by the Board. Fourth: An arbitral interpreta- tion of the contract would not fully resolve the unfair labor practice issues in this case. Thus, in the improbable event that an arbitrator were to find that the contract controlled the Union's selection of its contract negotiating committee, there would still remain for disposition the question, not within the decisional competence of an arbitrator, whether such a contractual restriction is valid under the Act 13 And if, on the other hand, the arbitrator were to find that the contract did not restrict the Union as contended by Re- spondent, there would still remain the issue, herein decid- ed, but which would lie beyond the competence of an arbi- trator to decide, whether Respondent was justified in its refusal to meet with the committee for the other reasons it claims. Moreover, the determination of whether the strike which began on May 31, 1974, was, as alleged in the com- plaint, an unfair labor practice strike is one that only the Board can make In sum, I find that the several defenses proffered by Re- spondent are each without merit, and that Respondent's refusal on and after April 22, 1974, to meet and bargain with the bargaining committee selected by the Union to conduct contract negotiations with Respondent was, as al- leged in the complaint, violative of Section 8(a)(5) and (1) of the Act. I further find, also as alleged in the complaint, that the strike of Respondent's employees which began at midnight on May 31, 1974, and which was still in progress at the time of the hearing, was caused and prolonged by Respondent's unfair labor practices CONCLUSION OF LAW By refusing on and after April 22, 1974, to engage in negotiations with the Union for a collective-bargaining contract if the Union included on its bargaining committee persons who were not employees of Respondent or who were members or officials of other labor organizations, Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act. u In Oliver Corporation, 74 NLRB 483 (1947), the Board held Such a contractual restriction invalid However, in a more recent case Ratine Die Coaling Co, Inc, 192 NLRB 529, 530, fn 6 (1971 ), the Board having reached decision on another ground , deemed it "unnecessary to decide whether [such ] a limitation would be repugnant to the purposes of the Act and, therefore unenforceable " So far as I am aware, the Board since Racine has not passed on that question 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, it will be recommended that Respondent be ordered to cease and desist therefrom and to take certain affirma- tive action, specified in the recommended Order below, de- signed to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusion of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 14 Harley Davidson Motor Co. , Inc., AMF, Milwaukee, Wisconsin, its officers, agents, successors, and assigns, shall' 1. Cease and desist from: (a) Refusing to bargain with Local 209, Allied Industrial Workers of America, AFL-CIO, by declining to meet with the selected negotiating committee of that Union for the purpose of negotiating a collective -bargaining agreement relating to rates of pay, wages, hours, and other terms and conditions of employment of the employees in the appro- priate unit described in footnote 1, above, because of the presence of any person who is not an employee of Respon- dent or who is a member or official of another labor orga- nization whom the Union has invited or designated to at- tend the negotiations for the purpose of participating in the discussions and advising or consulting with the Union. 14 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 (b) In any like or related manner, interfering with the efforts of the above-named Union to bargain collectively on behalf of the employees in the bargaining unit it repre- sents. 2. Take the following affirmative action found necessary to effectuate the purposes of the Act: (a) Meet and bargain, upon request of the above Union, with the selected bargaining committee of the Union, in- cluding any members or officials of other labor organiza- tions whom the Union has invited to attend the negotia- tions for the purpose of participating in the discussions and advising and consulting with the Union on matters related to the negotiation of a collective-bargaining agreement for the aforesaid unit. (b) Post at the plants operated by it in Milwaukee Coun- ty, Wisconsin, and counties bordering Milwaukee County, at which the Union is the exclusive representative of its employees, copies of the attached notice marked "Appen- dix "15 Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 30, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 15 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board"