Roy Robinson Chevrolet

828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Roy Robinson, Inc. d/b/a Roy Robinson Chevrolet and International Association of Machinists and Aerospace Workers, Focal Lodge 1224, AFL-CIO. Case 19-CA-7164 March 16, 1977 DECISION AND ORDER On June 3, 1975, Administrative Law Judge George Christensen issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. The National Labor Relations Board has reviewed the rulings of the Administrative Law Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Administrative Law Judge's Decision, the exceptions, the brief, and the entire record in the case and finds merit in Respon- dent's exceptions. Accordingly, the Board adopts the Administrative Law Judge's findings, but not his conclusions or recommendations. The complaint alleged that Respondent had violat- ed Section 8(a)(5) and (1) of the Act by closing its body shop and discharging certain named employees without prior notice to and bargaining with Interna- tional Association of Machinists and Aerospace Workers, Local Lodge 1224, AFL-CIO, the Union herein, the collective-bargaining representative of the unit employees. In defense, Respondent asserted, inter alia, that the issue in dispute should be referred to arbitration pursuant to the Board's decision in Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971). The Administrative Law Judge rejected the request for referral and proceeded to find that Respondent had violated Section 8(a)(5) and (1) by its conduct. We find that the Administra- tive Law Judge erred in refusing to refer the dispute involved in this case to the grievance-arbitration provisions of the parties' collective-bargaining agree- ment. We shall therefore dismiss the complaint. Respondent is a Chevrolet dealer. In connection therewith it operated, prior to June 19, 1975, a service department for mechanical repairs and a body shop. The Union is the collective-bargaining representative of the mechanics and body shop men. On June 17, 1975, following a strike, Respondent and the Union signed a collective-bargaining agreement effective to April 30, 1977. Article 3 of the agreement provides that the "Employer shall have the exclusive right to hire, suspend and discharge his employees." Article ' Norfolk, Portsmouth Wholesale Beer Distributors Association 196 NLRB 1150, 1151 (1972) (Member Fanning dissenting). See also United Steelwork- ers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583 (1960): 19 is headed "Conflict of Employment-Off Hours Work-Sub-Contracting." However, the subsection under this heading professes to deal only with a situation where an employee works "off hours in his home or garage or elsewhere." Article 23 contains a three-step grievance procedure culminating in arbi- tration. It is applicable to "Any complaint arising among the employees in the shop over the interpreta- tion of this Agreement relative to hours, wages, overtime, working conditions, discrimination, classi- fications or other terms of this Agreement...." The Administrative Law Judge refused to refer this dispute to arbitration on the following grounds: (1) The time limits prescribed in the contract for the filing of grievances thereunder has expired; (2) it is doubtful that the issues in this proceeding are capable of full resolution under the terms of the agreement; (3) it is difficult to perceive how the alleged discrimi- natees could word a grievance for submission to arbitrators; (4) the arbitration proceeding on the merits would not encompass the issue present in this case; and (5) an arbitration proceeding on the merits of the dispute "might very well result in a dismissal of the grievance, while a contrary result would result under the Act." We find no merit in any of these objections to the deferral procedure under Collyer. As to (1), Respon- dent in its briefs to the Administrative Law Judge and to the Board has stated categorically that it is willing to waive the time limitations contained in the contract grievance-arbitration procedures in order to process the present dispute through that procedure. As to (2), the issue of arbitrability "should itself be submitted to the arbitrator, as has become the near universal practice under collective bargaining."' As to (3), we fail to see any particular difficulty in framing the issue to be decided by the arbitrators, that is, whether under the terms of agreement the Employer was given the right unilaterally to discon- tinue its body shop and terminate the employees for the reasons assigned by the Employer. As to (4), if the arbitrators should decide that the contract terms did give the Employer such right, then the Employer's conduct would also perforce have been lawful under the Act. If the arbitrators should decide that the Employer had no such contract right, they will presumably order the Employer to make the termi- nated employees whole (the body shop operation has since been reestablished and terminated body shop employees reemployed). This remedy would be substantially identical with that which the Board An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage. 228 NLRB No. 103 ROY ROBINSON CHEVROLET 829 might order. In any event, the award of the arbitra- tors would be subject to examination by the Board if it fails to conform to the Spielberg standard5.2 As to (5), if the Administrative Law Judge's reasoning were accepted, deferral to arbitration would be an exercise in futility.3 Inasmuch as the Chairman and Member Walther have not previously expressed an opinion as to Collyer, an examination of the present status of that decision is in order. "The validity of the Collyer doctrine is no longer seriously in doubt." So recently said the U.S. Court of Appeals for the Second Circuit.4 This is but the latest court expression of approval of Collyer. 5 Not a single court of appeals has disapproved that doctrine since its enunciation in 1971, notwithstanding the repeated dissents of Members Fanning and Jenkins. The Supreme Court has also endorsed the doctrine. In William E. Arnold Co. v. Carpenters District Council of Jacksonville and Vicinity, 417 U.S. 12 (1974), a state court had refused to enjoin a strike in violation of a no-strike clause in a collective-bargaining contract upon the ground that the union's conduct was also arguably an unfair labor practice and therefore the state court had no jurisdiction. The Supreme Court reversed, relying heavily on the Board's decision in Collyer. The Court said (417 U.S. at 16,18): Indeed, Board policy is to refrain from exercis- ing jurisdiction in respect of disputed conduct arguably both an unfair labor practice and a contract violation when, as in this case, the parties have voluntarily established by contract a binding settlement procedure. . . . The Board said in Collyer, "an industrial relations dispute may involve conduct which, at least arguably, may contravene both the collective agreement and our statute. When the parties have contractually committed themselves as to mutually agreeable procedures for resolving their disputes during the period of the contract, we are of the view that those procedures should be afforded full opportu- nity to function. . . . We believe it to be consis- tent with the fundamental objectives of Federal law to require the parties . . . to honor their contractual obligations rather than, by casting [their] dispute in statutory terms, to ignore their agreed-upon procedures." Id. at 843. The Board's position harmonizes with Congress' articulated con- 2 Spielberg Manufacturing Company, 112 NLRB 1080 (1955). 3 In Spielberg Manufacturing Company, id at 1082, the Board said that an arbitration award is not at odds with the statute because the Board would not necessarily have decided the issue in dispute as did the arbitrators. See also Howard Electric Co., 166 NLRB 338, 341 (1967); Lodges 700, 743, 1746, International Association of Machinists and Aerospace Workers, AFL-CIO [United Aircraft Corporation] v. N.L.R.B., 525 F.2d 237,246(C.A.2,1975). 4 Lodge 700 IAM [United Aircraft Corp.] v. N.L.R B, 525 F.2d at 239. 5 See The Columbus Printing Pressmen & Assistants' Union No 252, cern that, "[f]inal adjustment by a method agreed upon by the parties is ... the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective- bargaining agreement.... " The Board's practice and policy of declining to exercise its concurrent jurisdiction over arguably unfair labor practices which also violate provisions of collective-bargaining agreements for voluntary ad- justment of disputes, highlight the congressional purpose that § 301 suits in state and federal courts should be the primary means for `promoting collec- tive bargaining that [ends] with agreements not to strike." [Emphasis supplied.] In view of the massive judicial approval of Collyer by the courts, including approval by the highest court in the land, Collyer must be accepted as law binding upon the Board under American legal tradition, notwithstanding the fact that some individual Board members may not agree with it. Board members may disagree with its application, but at this point in time they are not free, we believe, to treat the doctrine as a nullity. We note that the complaint does not allege that Respondent discontinued its body shop operation for discriminatory reasons. The only issue is as to whether the discontinuance was violative of Section 8(a)(5) because Respondent failed to bargain with the Union before closing the body shop and terminating the employees. Respondent on the other hand con- tends that the collective-bargaining contract in effect between the parties justified its unilateral conduct. There is here, therefore, an issue of contract interpre- tation as well as violation of Section 8(a)(5) of the Act. The parties have established a grievance proce- dure culminating in arbitration for resolution of issues of contract interpretation. Resolution of that issue will also resolve the unfair labor practice issue. We believe that, in accordance with Collyer, the purposes of the Act will best be discharged by deferring the issue in dispute to the grievance-arbitra- tion procedure which the parties themselves have created.6 The dissent is in large part a rehash of arguments previously made to prove with respect to Collyer that white is black or perhaps gray. We have answered Subordinate to IP & GCU (The B. W. Page Corporation), 219 NLRB 268 (1975), for the list of other court opinions approving Collyer. 6 Bethlehem Steel Corporation (Shipbuilding Department), 197 NLRB 837 (1972) (Member Jenkins dissenting); J. Weingarten, Inc., 202 NLRB 446 (1973) (Members Fanning and Jenkins dissenting ); Columbus and Southern Ohio Electric Company, 205 NLRB 187 (1973) (Members Fanning and Jenkins dissenting); United States Postal Service, 207 NLRB 398 (1973) (Member Jenkins dissenting); Coppus Engineering Corporation, 195 NLRB 595 (1972) (Member Jenkins dissenting). 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD most of those arguments relating to court acceptance of the Collyer decision in other cases. See The Columbus Printing Pressmen & Assistants' Union No. 252 (R. W. Page Corporation), 219 NLRB 268 (1975); Electronic Reproduction Service Corporation, et al., 213 NLRB 758 (1974). However, the dissent contains a number of other erroneous characterizations of court and Board decisions which require correction. Thus, the dissent asserts that in Local Union No. 715, International Brotherhood of Electrical Workers, AFL- CIO [Malrite of Wisconsin] v. N. L. R. B., 494 F.2d 1136 (C.A.D.C., 1974), the court did not fully support the Collyer majority position. Malrite involved the Spielberg doctrine and not Collyer. The court upheld deferral to arbitration awards except with respect to alleged unlawful conduct which occurred after is- suance of the arbitration awards . It was of course erroneous, as the Board subsequently acknowledged, to apply Spielberg to events which occurred after the arbitration hearing. Electronic Reproduction Service Corporation, Service at, 762. There is nothing in the court's decision to indicate any kind of disapproval of Collyer. In T.I.M.E.-DC, Inc. v. N.L.R.B., 504 F.2d 294 (C.A. 5, 1974), the court upheld the Board's decision not to defer to arbitration because the employer and the union were hostile to the employ- ees' interests . See Kansas Meat Packers, a Division of Aristo Foods, Inc., 198 NLRB 543 (1972). Not only did the court not indicate disapproval of Collyer, it specifically endorsed the doctrine of that case. It said. Spielberg and Collyer represent a part of the NLRB's continuing effort to facilitate the prompt and expert settlement of labor disputes in a peaceful manner by the parties involved, without resort to the sometimes ponderous apparatus of federal intervention. [504 F.2d at 302.] In N.L. R.B. v. Cincinnati Local 271, Lithographers & Photoengravers International Union, AFL-CIO [U.S. Playing Card Company], 495 F.2d 763 (C.A. 6, 1974), the court upheld the Board's refusal to defer under Collyer because there was no contractual provision dealing with the subject of the dispute. In enforcing the Board's order, the court said "that while it might have been better to defer the issues therein to arbitration, the Board's failure to do so does not amount to an abuse of discretion . . . ." Thus the court clearly indicated approval of the deferral practice. The attempt of the dissenters to construe Oak Cliff- Golman Baking Company, 207 NLRB 1063 (1973), as a retraction of Collyer is a distortion of the decision in that case. In the first place, the decision was by a panel of Chairman Miller and Members Fanning and Jenkins, the latter two of course having been the dissenters in Collyer. Member Penello did not partici- pate in the case because his chief counsel, formerly an Administrative Law Judge, was the one who decided the case. Member Kennedy did not participate. All the panel members voted not to defer. Members Fanning and Jenkins so voted because of their dissent in Collyer. Chairman Miller voted against deferral for a different reason. He stated: [D]eferral is inappropriate in this case because there is no claim, and indeed no room for any finding, that the contract's terms even arguably authorized the action taken by Respondent here. Obviously therefore, unlike Collyer, the question of whether Respondent's action was in violation of its statutory obligation does not turn on any underlying dispute over the meaning of the contract's terms. Chairman Miller would not, therefore, find that determination of the violation issue in this case on its merits conflicts with the policy enunciated in Collyer. Oak Cliff-Golman did not involve a factual situation similar to that in this case and in no sense can it be construed as a modification of the majority's position in Collyer. As to the dissenters' argument that there is no contract provision which could even arguably give color to Respondent's conduct, we disagree. The Supreme Court said in United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 582-583, that an order to arbitrate a particular grievance should not be denied "unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage." We believe that the dispute here falls within that standard and is therefore properly refera- ble to the parties' arbitration procedure. Finally, the dissenters have frightened themselves with alarmist phrases-"contractual chaos," "indus- trial conflict," and "impede and slow our decisional process"-which they say will result from the deferral of this and similar cases to arbitration. We do not share in their fear. We had thought that the national policy favors the settlement of labor disputes through arbitration. Can the national policy as expressed in the Labor Management Relations Act? and Supreme 7 Sec 203(d) of the LMRA provides declared to be the desirable method for settlement of grievance disputes ansme over the application or interpretation of an existing collective- Final adjustment by a method agreed upon by the parties is hereby barganung agreement. ROY ROBINSON CHEVROLET 831 Court decisions8 be wrong and the dissenters right? We do not believe so. We shall therefore dismiss the complaint subject to the qualification contained in the order as indicated below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations 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 further consideration upon a proper showing that either (a) the dispute has not, with reasonable promptness after the issuance of this Decision, been either resolved by amicable settlement in the grievance procedure or submitted promptly to arbitration ; or (b) the grievance or arbitration proce- dures have not been fair and regular or have reached a result which is repugnant to the Act. CHAIRMAN MURPHY, concurring: I agree with my colleagues, Members Penello and Walther, that the Board clearly has the discretionary authority under the Act to defer disputes arising under the parties' collective-bargaining agreement to the grievance and arbitration machinery established by such agreement and should do so in this case. My reasons for so finding are essentially those set forth by the Board majority in Collyer Insulated Wire, 192 NLRB 837 (1971). Thus, I believe that issues involv- ing purely the interpretation of the rights and obligations of the parties under a collective-bargain- ing agreement are particularly suited to the arbitral process although these issues may also give rise to a charge under Section 8(a)(5) or 8 (b)(3) of the Act. On the other hand, I would not exercise our discretion to defer to arbitration issues alleging violations of Section 8(a)(1) and (3) or Section 8(b)(1)(A) and (2) of the Act. My reasons for treating these sections of the Act differently from Section 8(a)(5) and 8(b)(3) are more fully set forth in my s United Steelworkers ofAmerica v American Manufacturing Co, 363 U.S. 564 (1960), United Steelworkers ofAmerica v. Warrior & Gulf Navigation Co, 363 U.S. 574 (1960), United Steelworkers of America v Enterprise Wheel & Car Corp., 363 U.S 593 (1960) In Gateway Coal Co v. United Mine Workers of America, eta!, 414 U.S. 368, 377 (1974), the Supreme Court said The federal policy favoring arbitration of labor disputes is firmly grounded in congressional command . Section 203(d) of the Labor Management Relations Act, 29 U.S.C. § 173(d), states in part, Final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement. 9 228 NLRB No. 102 concurring opinion in General American Transporta- tion Corporation, 9 issued this date.'° The instant case, in my view, falls squarely into the area of contract interpretation and should be de- ferred under the Collyer principles. The complaint alleged a violation of Section 8(a)(5) of the Act by Respondent's unilateral decision to eliminate its body shop operation without first notifying and/or bar- gaining with the Union which represents certain of Respondent's employees, including the body shop employees." Although three body shop employees were discharged as a result of Respondent's unilateral decision and action, no independent violation of Section 8(a)(3) or (1) of the Act was alleged in the complaint or found by the Administrative Law Judge. It would appear, therefore, that the decision to eliminate the body shop operation, as contended by Respondent, was based solely upon economic consid- erations and not upon hostility or animus toward the Union or the employees' protected concerted activi- ties. In this posture, it seems to me, -the issue of whether Respondent had a right under the contract to take the action it undertook is clearly one of contract interpre- tation which an arbitrator is peculiarly competent to resolve. The Administrative Law Judge erred, in my judg- ment, in declining to defer the matter to the parties' contractual grievance machinery. He reasoned that the primary issue posed by the complaint-i.e., whether Respondent by closing its body shop and discharging its three body shop employees without prior notice to, and bargaining with, the Union violated Section 8(a)(5) of the Act-was not suscepti- ble to the contract's grievance provision because (1) it would be difficult for the alleged discriminatees to phrase the issue under the agreement, and (2) Respondent might defend on the grounds that the grievance was not filed within the time limitations provided in the contract; I disagree with the Adminis- trative Law Judge's assessment in this regard. It is true, of course, that an arbitrator is not competent to decide whether an employer's conduct violates Sec- 10 I note that my dissenting colleagues herein spend a great portion of their dissent attacking my rationale in General American Transportation Corporation, supra. Although my concurrence therein speaks for itself, I would like to point out that the dissenters in the instant case joined my concurrence in General American to form a majority. i r Both the majority and the dissent cite The Columbus Printing Pressmen & Assistants' Union No 252, Subordinate to IP & GCU (The R W Page Corporation), 219 NLRB 268 (1975), enfd. 93 LRRM 3055, 79 LC $ 11,782 (1976), but for different reasons With all due respect to the Fifth Circuit, I reaffirm my belief in interest arbitration as the collective-bargaining tool of the future, noting that the Sixth Circuit, in Chattanooga Mailers Union, Local No 92 v. The Chattanooga News-Free Press Company, 524 F.2d 1305, 1315 (1975), held, in another context, that "The enforcement of an interest arbitration clause is within the scope and purpose of our national labor policy.. 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion 8(a)(5) of the Act. The issue to be deferred in this case, however, is not whether a violation of Section 8(a)(5) occurred, but whether Respondent had a right under the contract to eliminate the body shop and, consequently, to discharge the body shop employees. With respect to the Company's possible defense that a grievance at this time would be untimely under the contract, I note that Respondent's brief assures the Board as well as the parties that Respondent does not intend to raise such a defense and, in fact, has waived it. If, however, Respondent raises timeliness as a defense to a grievance, the Board should then entertain the substantive allegations of the complaint under the principles stated in Spielberg Manufacturing Company, 112 NLRB 1080 (1955). For I firmly believe, as was stated in Collyer, supra, that when we defer the parties' contract disputes to their grievance and arbitration procedures we must retain limited jurisdiction over the matter for the purpose of considering, upon an appropriate and timely motion, whether (a) the dispute has been amicably settled or submitted promptly to arbitration, or (b) the griev- ance or arbitration procedure has been fair and regular and has reached a result which is not repugnant to the Act. For all of the foregoing reasons, I would defer this dispute to the parties' contractual grievance and arbitration machinery, retaining jurisdiction over the matter only for the limited purpose stated above. MEMBERS FANNING and JENKINS, dissenting: Contrary to the majority views, we would decide the allegations of 8(a)(5) and (1) violations on their merits. For the reasons fully set forth in our separate dissents in Collyer Insulated Wire, supra, and our dissents in related cases,12 we have legal and policy misgivings in requiring the parties involved to have such matters determined by an arbitrator instead of this Board, despite the availability of arbitration provisions in the contract. However, even if we were inclined to accept the majority positions, we regard the instant case as an inappropriate vehicle for the application of such views. Neither the facts, nor the legal precedents, nor administrative efficiency supports the majority's approach. The issues here are straightforward and the facts uncomplicated. The record shows that Respondent, shortly after the commencement of operations, en- tered into a collective-bargaining agreement with the Union covering its mechanics and body shop and related employees. Originally the agreement was 12 See, e.g., Joseph T Ryerson & Sons, Inc., 199 NLRB 461, 464 (1972); Great Coastal Express, Inc, 196 NLRB 871, 872 (1972); Brotherhood of Teamsters & Auto Truck Drivers Local No. 70, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers ofAmerica [National Biscuit Company], 198 NLRB 552, 554 (1972), Peerless Pressed Metal Corporation, between the Union and an association of automobile dealers of which Respondent was a member. Respon- dent and the association members operate businesses which in most respects are similar. In the spring of 1971, Respondent and the Union agreed to enter into an individual contract rather than as associationwide contract and negotiated a contract for a term extending from May 1, 1971, through April 30, 1974. The contract provided for recognition of the Union as the exclusive collective- bargaining representative for its shop employees, including the body shop. When negotiations for a new contract were unsuc- cessful after the 1971-74 agreement expired, all nine of the employees in the appropriate unit went on strike, and Respondent's premises were picketed on June 14 and 15, 1974. Credited testimony further shows that on June 15 one of the picketing employees, Lyle Prather, a body shop employee and a member of the Union's negoti- ating committee, was approached by Respondent's president, Roy Robinson, at the picket line. Robinson complained to Prather regarding certain conduct in which Prather engaged while picketing. When Prath- er indicated that he would continue to use the tactics complained of, Robinson told him that he was going to close down the body shop and lease out the operation to a nonunion operator. Respondent did not deny that the above incident occurred. Nevertheless, on June 17, President Robinson met with employee Prather and another union representa- tive and negotiated a new collective-bargaining agreement which extended the expiration date of the preceding contract to April 30, 1977, retaining most of the terms and conditions of the recently expired contract, except for some increases in wages and fringe benefits. Upon the execution of the new contract, the picketing ended and the striking em- ployees returned to work. Under the new contract, the body shop remained intact. Of significance is that at no time during the June 17 negotiations was the subject of subcontracting or the cessation of any of Respondent's body shop work discussed or mentioned. Nor is there any showing that the Union at the June 17 bargaining session or at any other time waived its right to bargain on the subject of subcontracting body shop work. In the late afternoon of June 19, less than 2 days after the contract was negotiated, Respondent called the three employees employed in the body shop into a meeting, and for the first time announced, without 198 NLRB 561, 562 (1972); Southwestern Bell Telephone Company, 198 NLRB 569, 570 (1972); Columbus and Southern Ohio Electric Company, 205 NLRB 187, 188 (1973); Granite City Steel Company, Subsidiary of National Steel Corporation, 211 NLRB 880 (1974). ROY ROBINSON CHEVROLET prior notification to the Union, that it was closing the body shop that day and terminating their employ- ment. Thereafter, Respondent leased out to a non- union body repair company the area of its premises where the body shop was located, and contracted with the company to complete the body work in the shop, and continued thereafter to contract with that company to perform the major portion of body work on its automobiles. The subcontracting operation continued for a period of about 4 months. On November 1, after negotiations with the Union, Respondent discontinued its subcontracting and resumed operations of the body shop in the same manner as previously and recalled the three terminat- ed employees to work at the wages set forth under the existing contract. The above uncontroverted facts in our view indicat- ed a blatant and irresponsible disregard by Respon- dent for the collective-bargaining process. The major- ity, nevertheless, finds that the "purposes of the Act will best be discharged by deferring to the grievance- arbitration procedures which the parties themselves have created." From this pronouncement the majori- ty concludes that the doctrine enunciated in Collyer should be applied, since the contract and its meaning were at the center of the dispute and "resolution of that issue will also resolve the unfair labor practice issue." Not only do the facts militate against the above approach, but the general principles applicable to the issues involved here have been unquestionably ac- cepted and firmly established by this Board and the courts. It is undisputed, of course, that the Board has the authority to interpret contractual provisions, where necessary, to resolve unfair labor practice allega- tions.13 Here, however, contrary to the majority, the contract does not require any Solomon-like interpre- tation since there is no contract provision which could even arguably be interpreted to license Respon- dent's unilateral conduct. Their reliance on Warrior & Gulf Navigation Co., supra, confirms our conclusion that they are not relying on any specific provision of the contract, but, as pointed out below, merely on the fact that the collective-bargaining contract contains a standard grievance-arbitration provision. Article 3, on which the majority relies, covers "HIRING, SUSPENSION AND DISCHARGE." While section 3.01 under this article (not art. 3 as stated by the majority) does provide that the "Em- ployer shall have the exclusive right to hire, suspend, 13 N.L.R.B. v. C& C Plywood Corporation, 385 U S. 421(1967). See also International Union of Operating Engineers, Local 701, AFL-CIO (Oregon - Columbra Chapter, The Associated General Contractors ofAmerica, Inc.), 216 NLRB 233, 234 (1975); Cincinnati Local271, Lithographers and Photoengrav- ers International Union, AFL-CIO (The United States Playing Card Compa- 833 and discharge his employees," section 3.02 limits this right by specifically setting forth the five areas which constitute "just cause" for suspension or discharge: drunkenness, theft or deliberate destruction of prop- erty, insubordination, failure to report for work, and gross negligence. Section 3.02 further requires that "any discharge or suspension" shall be by written notice, signed by the Employer or service manager, and delivered or mailed to the employee and the Union. Sections 3.04 and 3.05 describe the employ- ees' rights to a grievance procedure. Article 23 (not art. 22 as stated in art. 3) describes the three-step grievance and arbitration procedure. The right of Respondent to subcontract or any waiver by the Union respecting Respondent's right to do so is nowhere mentioned, nor is there any language from which such management rights could be inferred. Article 19 of the contract is entitled "CONFLICT OF EMPLOYMENT-OFF HOURS WORK--SUBCONTRACTING," but, as the majori- ty points out, this deals only with a situation where an employee works "off hours in his home or garage or elsewhere," not with the Employer's right to engage in subcontracting. Thus it is plain that there is no contract provision relating to Respondent's closure of the body shop portion of this established unit, and that Respondent violated the Act in closing the body shop and subcontracting the work without bargaining with the Union. To leave this issue to arbitration means that the arbitrator, in applying the usual standards, will conclude (correctly) that nothing in the contract prevents Respondent from doing what it did, and thus there has been no breach of the contract. The case will then either sink from sight with a violation of the Act ignored by this Board, or it will return here many months and dollars later for a decision on the merits which might as well be rendered now. It is the statute and not the contract which creates Respon- dent's obligation to bargain here,14 and this objection to deferral is hardly answered by the assertion of Members Penello and Walther that the only issue is whether "the arbitration clause is not susceptible of an interpretation that covered the asserted dispute." Arbitration clauses have no independent life or substance of their own, but are only authority to interpret other clauses in the contract-and there are no other clauses in this contract touching the matter, as they apparently concede by their inability to identify one. ny), 204 NLRB 418 (1973), enfd 495 F.2d 763 (C.A. 6, 1974); Osage Manufacturing Company, 173 NLRB 458,461-462 (1968). 14 Of course, the Union may in bargaining accept subcontracting in whole, in part, or not at all, with or without concessions in return-but bargaining with the Union is required. 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nor are we persuaded by the Chairman's distinc- tion between "individual" rights under Section 8(a)(1) and (3) and "collective" or "group" or "union" rights under Section 8(a)(5), leading her not to defer in the former cases and to defer in the latter. It is possible that an 8(aX5) violation involving "course of conduct," "surface bargaining," or refusal to recognize or meet with the union may be consid- ered a "collective" or "union" right more than an "individual" one, but this type of case is never a candidate for deferral, since a contract (almost by definition) does not exist for an arbitrator to inter- pret. The 8(a)(5) cases which are considered for deferral are those in which the employer unilaterally takes some action contrary to, or not authorized by, the collective-bargaining agreement which affects some of its employees adversely in their terms and conditions of employment. The rights of the employ- ees to protection against such action is individual as well as collective, and it is not necessary that a violation extend to more than one employee for it to be cognizable under the statute. The discharge of the three body shop employees here was as "individual" in its impact on them and its breach of their rights as if they had been discharged for union activity in violation of Section 8(aX3). The "individual vs. collective" distinction is not strengthened by arguing that 8(aX5) violations which are deferred arise out of the contract made by the "group" (union) with the employer. Discharges under Section 8(a)(3) have at least equal "collective" character, for violations occur only when the purpose is to encourage or discourage "union" (i.e., "group") support or activity. Indeed, the fact that the entire statute is directed toward protecting the right to engage in, or refrain from, "concerted" activities eliminates any substance in the attempted distinction. Finally, we would note that the speedy and economical resolution of 8(a)(5) cases on which the Collyer majority principally grounded their decision has not occurred. The AFL-CIO "American Federa- tionist" for November 1976 estimated the union's share of arbitration costs at $2,290 per case, and the total time consumed at 7-1/2 months. An employer's costs would be about the same. The AFL-CIO conclusion was that arbitration "is taking on the appearance of a courtroom procedure" and "begin- ning to discourage industrial justice for two very basic reasons : cost and delay." The Board and General Counsel have spent dozens of pages, barrels of ink, and thousands of dollars logging the route to determine when Collyer would be applied and when not. It would be cheaper, fairer to the parties, faster, and more consistent, as well as assuring the statutory remedy for breaches of the statute, if we simply abandoned Collyer and decided the alleged violations presented to us, as this Board was charged by Congress to do. As for the legal foundations of the majority position, the pronouncement that "the validity of the Collyer doctrine is no longer seriously in doubt" and "not a single court of appeals has disapproved that doctrine since its enunciation" similarly appears to be an overstatement. As we have previously pointed out,15 the District of Columbia Circuit Court which the majority relies on for major support has recently had second thoughts on the Board's pro forma deferring to arbitration without regard to statutory considerations. The court in Banyard v. N.LRB., 505 F.2d 342 (1974), remand- ed the case to the Board for the determination as to whether the employees in question had been discrimi- natorily discharged. In Banyar4 the court cautioned that deferral is appropriately applied only where the resolution of the contractual issue is congruous with the resolution of the statutory unfair labor practice issue. In agreement with our dissent in that case, the court admonished the Board that its abstention went beyond deferral and approached abdication. In Local Union No. 2188, International Brotherhood of Electrical Workers, AFL- CIO [Western Electric Company] v. N.L.R.B., 494 F.2d 1087 (C.A.D.C., 1974), cert. denied 419 U.S. 835 (1974), that court had previously expressed this same view. Similarly, in Local Union 715, International Brotherhood of lectrical Workers, AFL-CIO [Malrite of Wisconsin] v. N.LR.B., 494 F.2d 1136 (C.A.D.C., 1974), also relied on by the majority for judicial support, the court did not fully support the Collyer majority position and held that the Board's deferral with respect to charges involving certain individual bargaining with employees by the employer was "erroneous" in that by such action "full remedial relief' would not be provided since the issue had never been presented to the arbitrator. The issue was accordingly remanded to the Board for a determina- tion on the merits. As to other circuit courts of appeals, in both T.I.M. E.-DC, Inc. v. N. L R B., 504 F.2d 294 (C.A. 5, 1974), and in N.L.R.B. v. Cincinnati Local 271, Lithographers & Photoengravers International Union, AFL-CIO [United States Playing Card Company], 495 F.2d 763 (C.A. 6, 1974), contrary to the assertion in the majority's opinion, the courts upheld the Board's refusal not to defer. In Cincinnati Local 271, the Sixth Circuit agreed with the Board that there was no contractual provision for the arbitrator to inter- pret. iS See Member Jenkins' concumng opinion in The Columbus Printing Pressmen & Assistants' Union No. 252, Subordinate to JP& GCU(The R W. Page Corporation), 219 NLRB 269 (1975). ROY ROBINSON CHEVROLET 835 In Nabisco, Inc. v. N.L.R.B., 479 F.2d 770 (C.A. 2, 1973); Enterprise Publishing Company v. N.L.R.B., 493 F.2d 1024 (C.A. 1, 1974); and in Provision House Workers Union Local 274, AFL-CIO [Urban Patman, Inc.,] v. N.L.R.B., 493 F.2d 1249 (C.A. 9, 1974), cert. denied 419 U.S. 828,16 the courts all emphasized that the meaning and the interpretation of relevant contract clauses were the gravemen of the dispute, a factual situation not present here. In Oak Cliff-Golman Banking Company, 207 NLRB 1063 (1973), where the factual situation and the course of the employer's conduct were similar to those in this case, with the employer there unilaterally repudiating the contractual wage scale instead of, as here, wiping out the jobs in a part of the enterprise, Chairman Miller joined us in agreeing with the Administrative Law Judge that deferral would abdi- cate the Board's statutory function and that the issues should be decided on the merits. There our other two colleagues, who with Chairman Miller formed the original Collyer majority, apparently agreed with that result and remained silent. The Fifth Circuit Court of Appeals enforced the Board's decision without dis- cussion.17 Nor do we find any substance to the majority's contention that "the Supreme Court has endorsed the [Collyer] doctrine," citing the Supreme Court deci- sion in Arnold Co., supra. We have several times discussed in detail why we consider Arnold inappo- site.18 In doing so, we have pointed out that Arnold was a Section 301 suit involving a jurisdictional dispute rather than an unfair labor practice proceed- ing, and in such cases we have never opposed arbitration and have so stated in our decisions in this area. The reason, we have emphasized, is that in a jurisdictional dispute deferral is mandatory under the statute we administer when there is an agreed-upon method of settlement of such dispute. Indeed, the inclusion of this provision requiring deferral of jurisdictional disputes is strong evidence that Con- gress did not contemplate deferral of other types of violations. The majority's long quotations from Arnold are taken out of context. The first paragraph (417 U.S. at 16) is dicta and was not necessary for the determina- tion of the issues involved. The Court was merely summarizing Board policy, policy, which we might add, we have consistently opposed. The concluding paragraph (417 U.S. at 18), italicized for emphasis, is part of the Court's discussion under the heading "Jurisdictional Disputes," referring to Section 8(b)(4)(i)(D) and Section 10(k) of the Act and is the core of the Supreme Court's decision. Clearly, Section 301 and jurisdictional disputes, not Collyer, were the focus of the Court's discussion. As we have previously stated in the foregoing dissents in this area, we regard the reasoning of the Supreme Court in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), refusing to defer in a Title VII equal employment action, and in Amalgamated Association of Street, Electric Railway & Motor Coach Employees of America v. Lockridge, 403 U.S. 274 (1971), refusing to defer to a state court an alleged breach of contract which involved an arguable violation of Section 8 of the Act, as more analogous and persuasive than Arnold for supporting the conclu- sion that the Supreme Court does not approve deferral to arbitration such as is involved here. In our view, we have in this case the facts to fit the classic type of 8(a)(5) violation expressly proscribed by the Supreme Court. Contrary to the majority, there need be no showing that the discontinuance of Respondent's body shop was for discriminatory purposes. The general principles of law applicable to the issues involved here are well established. Unilat- eral changes in conditions of employment violate Section 8(a)(5), as defined in Section 8(d), even in the absence of an independent showing of overall subjec- tive bad faith.19 Respondent not only was obligated to bargain with the Union concerning the terms and the conditions of employment of the employees in the appropriate unit, but also was obligated not to change established working conditions without consultation with the Union, particularly here where there is no showing that Respondent's right to subcontract body shop work was ever discussed with, much less waived by, the Union. Board cases, in which our colleagues on the majority have joined us, have consistently fol- lowed this precedent with the approval of circuit courts of appeals in cases too numerous to require citations. 18 The Ninth Circuit Court of Appeals, in Provision House Workers, supra, in line with the caution of the District of Columbia Circuit Court, stated that "the Board cannot abdicate its statutory responsibilities by inappropriate deferrals to arbitration." (493 F.2d at 1249.) Nor do we think that the majority should take comfort in the fact that the Supreme Court denied certiorari in Provision House Workers and Local Union 2188, supra See Columbus Printing Pressmen & Assistants' Union No. 252 (R W. Page Corp.), 219 NLRB 268, cited in fn. 5 of the majority's decision. It is hornbook law that the grant or denial of certiorari does not signify approval or disapproval by the Supreme Court. We are gratified that the majority in their answer to our dissent have now qualified their statement in Columbus Printing Pressmen ti Assistants' Union No. 252, supra, that "six different courts of appeals have thus approved the majority view expressed in Collyer." It is clear that the courts in question have, as they point out, set forth limitations, reservations, and even disapproval of their application of the Collyer doctrine. 17 505 F.2d 1302 (C.A. 5, 1974), cert. denied 423 U.S. 826 (1975). Is See, e.g., Southwestern Bell Telephone Company, 212 NLRB 396, 397 (1974); Electronic Reproduction Service Corporation, 213 NLRB 758, 768-69 (1974); United Aircraft Corporation (Pratt & Whitney Division; Hamilton Standard Division), 213 NLRB 150, 153 (1974); Columbus Printing Pressmen, supra; Morrison-Knudsen Company, Inc., 213 NLRB 280,287-288 (1974). 19 See N.LRB. v. Benne Katz d/b/a Williamsburg Steel Products Co., 369 U.S. 736, 747 (1962); N.LRB. v. C & C Plywood Corporation, 385 U.S. 421 (1967), reversing 351 F.2d 224 (C.A. 9, 1965); NLR.B. v. Acme Industrial Products, Inc., 385 U.S. 432 (1967). 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreover, Respondent's unilateral actions specifi- cally are prohibited by even a literal reading of the Supreme Court's decision in Fibreboard Paper Pro- ducts Corp v. N. L. R. B., 379 U. S. 203 (1964). The conduct here involved was not an elemental manage- ment decision but, as in Fibreboard, a unilateral decision, without prior notice to the Union, which did not alter Respondent's basic operation . The body work was still performed in the same location with different people . No capital investment was contem- plated or sale involved and the effect was to replace existing employees with those of an independent nonunion contractor. To have required Respondent to bargain about the subcontracting of the work of the body shop, or its effects, at the bargaining session on June 17, 1974, when it apparently had already made the decision to subcontract, would not have significantly abridged Respondent's freedom to man- age its automobile dealership. Nor would such bargaining have affected the entrepreneurial control of the business.20 So well settled are these principles, and so farfetched would be any interpretation by an arbitrator that this contract permitted the subcon- tracting of the body shop operation, that an award supporting the subcontracting would be repulsive to the Act and contrary to Spielberg Manufacturing Co., 112 NLRB 1080 (1955). 20 Cf. General Motors Corporation, GMC Truck A Coach Division, 191 NLRB 951 ( 1971) (Chairman Miller, Members Jenkins and Kennedy; Members Fanning and Brown dissenting), enfd. sib nom. International Union, United Automobile; Aerospace B Agricultural Implement Workers of America, Local 864 v. N.LR.B., 470 F.2d 422 (C.A.D.C., 1972). See also Walter Pape, Inc., 205 NLRB 719 (1973). 21 As to whether the Collyer deferral doctrine provides a quicker and fairer resolution of disputes than can be provided by this Board or tends to better promote industrial peace and stability is, alter more than 5 years of its application, questionable. So far as we know, no objective studies of the effect of the majority's deferral policy have been made and any conclusions as to its efficacy are purely speculative. We do know that in certain cases it has had a detrimental result. A glaring example is Columbia Typographical Union No 101, International Typographical Union of North America, AFL-CIO (Byron S. Adams Printing. Inc.), 207 NLRB 850 (1973). In that case, the Board majority (Chairman Miller and Member Kennedy) deferred to the contractual grievance-arbitra- tion machinery an alleged 8(bXI)(B) violation involving the fining and expulsion of a foreman-member for performing his supervisory functions. The charge was filed on January 10, 197Z and amended on March 21, 1972. In dissenting, Member Jenkins noted that not only were the facts undisputed and the applicable law clear, as in the instant case, but that respondent had been involved in the same conduct twice before. (Columbia Typographical Union No. 101 (The Washington Post Company), 207 NLRB 831, and 207 NLRB 841, in which Members Fanning and Jenkins emphasized in their dissents that such deferral was not likely to be effective on the basis of the collective-bargaining history.) In 1974, the charging party moved for reconsideration by the Board to vacate the decision to defer and to decide the case on its merits because the union had not chosen to invoke the grievance or arbitration procedures. The majority denied the motion, with Member Jenkins again dissenting, charac- terizing the majority's actions as "an ill-advised policy and a nonfeasance of [the Board's I duties as the Agency charged with administering and enforcing this statute." (214 NLRB 27.) Finally, in 1975 the Board agreed that since the union had not taken the case to the "arbitral forum" that the complaint should be reinstated and the issues involved decided on their merits. In effect the decision was merely to adopt the Administrative Law Judge's rulings, findings, and conclusions that Thus, we find that neither the factual issues nor the applicable law supports the majority's decision to apply Collyer. We are convinced that the automatic application of the deferral doctrine which our col- leagues are here applying, even though there is no genuine issue of contract interpretation, will lead to contractual chaos, will tend to encourage unneces- sary industrial conflict, and will impede and slow our decisional process.21 This case is ripe for decision. Arbitration will serve no purpose except to cause further proceedings before this Board if the award sustains Respondent's misconduct, and the arbitrator will in any event be unable to enter a "cease-and-desist" award. The reasons for expeditious handling by this Board rather than deferring the matter to an outside tribunal are compelling. The effect of the majority decision would appear to extend Collyer so broadly as to preclude any remedy under the Act we administer where the parties with established collective-bargaining rela- tionships act unilaterally, regardless of the contents of the contract or the conduct involved, merely because the collective-bargaining contract provides for arbi- tration.22 For the above reasons, we would decide the allegations in the complaint and proceed to the merits of the case. the union had violated the Act, a decision Members Fanning and Jenkins would have made 2 years earlier. (219 NLRB 88.) In 1977, the case is now before the United States Court of Appeals for the District of Columbia (No. 75-1970) on a petition for review and cross- application for enforcement on the issue as to whether the Board abused its discretion by reasserting jurisdiction after the union failed to proceed with "reasonable promptness" to arbitration. Thus, more than 4 years after the charge was filed, litigation is far from over and the use of the Board's (and the courts) manpower and resources have been enormous. 22 We note that Sec. 203(d) of the LMRA, which the majority relies on to support its approach, appears in Title II of the Act dealing with the Federal Mediation and Conciliation Service ; the majority has omitted the qualifying sentence which follows the sentence quoted: "she [Federal Mediation and Conciliation I Service is directed to make its conciliation services available in the settlement of such grievance disputes only as a last resort in exceptional cases. " Nor do we find any language in the Supreme Court cases cited in fn. 8, supra (the Steelworkers trilogy) that the Board should abdicate its statutory functions. More relevant, we believe, is Sec. 10(a) which appears in Title I containing the sections of the Act we administer: The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 8) affecting commerce. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise.... Members Penello and Walther rely on Gateway Coal Co. v. United Mine Workers, supra, to support their deferral of statutory violations to the arbitral process. We consider this reliance misplaced . Gateway did not involve any asserted violation of the sections of the Act which we administer , but was an action brought under Sec. 301 of Title III of the Act. Moreover, Gateway involved the special subject matter of"safety disputes." The passage cited by our colleagues was merely the Court's reaffirmation of the view expressed in the Steelworkers trilogy, as is clear from the sentence and paragraphs which follow. The issue here is not whether arbitration is a desirable method for settling labor disputes, but whether, as noted above , the Board should abdicate its statutory functions to the arbitral process . Gateway does not address that issue. ROY ROBINSON CHEVROLET 837 DECISION STATEMENT OF THE CASE and the Union was a labor organization as those terms are defined in Section 2(2), (5), (6), and (7) of the Act. GEORGE CHRISTENSEN, Administrative Law Judge: On February 26, 1975, I conducted a hearing at Seattle, Washington, to try issues raised by a complaint issued on December 31 , 1974, 1 on the basis of a charge and an amended charge filed by the International Association of Machinists and Aerospace Workers, Local Lodge 1224, AFL_CIO,2 on June 26 and July 26, respectively. The complaint alleged that Roy Robinson, Inc. d/b/a Roy Robinson Chevrolet3 violated Section 8(axl) and (5) of the National Labor Relations Act, as amended (hereafter called the Act), by contracting out its body shop work and discharging its bodymen without prior notice to or bargain- ing with the Union. The Company denied the appropriateness of the unit represented by the Union, denied the commission of the acts alleged in the complaint, and denied any violation of the Act. As affirmative defenses, the Company stated that: (1) the issues are and should be deferred to the grievance- arbitration provisions of the currently effective collective- bargaining agreement between the Company and the Union; (2) the Company had no duty to bargain with the Union regarding the closing of its body shop and the discharge of its body shop employees; (3) if the Company had such a duty, it fulfilled that duty; and (4) backpay is an inappropriate remedy in this case. The issues created by the pleadings are: 1. Whether the Board should defer to the grievance- arbitration provisions of the company-union contract; 2. The appropriateness of the unit and the Union's representative status therein at times appropriate; 3. Whether the Company contracted out its body shop work and discharged its body shop employees; 4. Whether the Company contracted out its body shop work and discharged its body shop employees without prior notice to or bargaining with the Union; 5. Whether, in the event the above acts are found to have occurred, the Company thereby violated the Act; 6. If the Company did violate the Act, whether backpay should be directed. The parties appeared by counsel at the hearing and were afforded full opportunity to produce evidence, examine and cross-examine witnesses, argue, and file briefs. Briefs have been received from the General Counsel and the Company. Based upon my review of the entire record , observation of the witnesses, perusal of the briefs and research, I enter the following: FINDINGS OF FACT I. JURISDICTION AND LABOR ORGANIZATION The complaint alleged, the Company admitted, and I find that the Company at times pertinent was an employer engaged in commerce, in a business affecting commerce, ' Read 1974 after all subsequent date references omitting the year. 2 Hereafter called the Union. ' Hereafter called the Company. 4 An admitted supervisor and agent of the Company acting on its behalf at all times pertinent. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts The Company was formed in 1968 by Roy Robinson, its president,4 to operate a Chevrolet dealership in Marysville, Washington, a small town near Seattle. Shortly after commencement of operations, the Company entered into a collective-bargaining agreement with the Union covering its mechanics and body shop, and related employees. Originally those employees were covered by a collective- bargaining agreement between the Union and an associa- tion of automobile dealers of which the Company was a member; in 1971, however, the Company and the Union entered into an individual contract for a term extending from May 1, 1971, through April 30,1974. In that contract, the Company continued to recognize the Union as the sole and exclusive collective-bargaining representative of its employees classified as journeyman mechanic, journeyman bodyman and painter, journeyman parts man, specialist (polishers, lubrication men, new- and used-car cleanup and get-ready men, etc.) and apprentice, excluding automobile salesmen, janitors, office employees, guards, and supervi- sors, as defined in the Act. Pursuant to the revision and termination provision of that contract, the Union served timely notice on the Company of its desire to amend the 1971-74 agreement. Negotiations commencing after the service of the aforesaid notice occurred through the expiration date of the contract to Friday, June 14, when the Union called a strike. At the time the strike commenced, the Company em- ployed four mechanics, three bodymen, one partsman, and one specialist (lubrication man) under coverage of the company-union contract. All nine of the aforesaid employ- ees joined in the strike and picketed the Company's premises on Friday, June 14, and Saturday, June 15. On the latter date, one of the picketing employees-Lyle Prather, a bodyman5-was approached by Robinson at the picket line. Robinson complained to Prather over reports he had received (from his salesmen) that Prather was advising prospective customers who stopped to inquire concerning the strike to take their business to a competitor. Prather replied that he gave Robinson his best efforts as an employee, but when Robinson refused to sign a contracts he had declared war on the employees and he (Prather) would use any means he had to divert work away from the Company. Robinson replied in that case he was going to close down his body shop operation and lease out the body shop to a nonunion operator. Prather told him if he did that he had better bring in some tough ones, to which Robinson responded that he would bring in some who were tough enough to handle anything Prather could give them.? On the following Monday, June 17, Robinson met with Prather and another union representative and he and the 5 Prather was also a member of the Union's negotiating committee. 6 The other dealers whose employees were represented by the Union in the area signed contracts ; the only dealer the Union struck to secure a contract was Robinson Chevrolet. 4 The above findings are based upon Prather's uncontradicted testimony. 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union representatives executed a document wherein it was agreed that all the terms of the preceding contract would be continued in effect unchanged for a period extending from the expiration date of the preceding contract to April 30, 1977, except for upward adjustments (spelled out in the document) in wage rates, dental plan payments, health and welfare payments, and pension plan payments. Upon execution of that document all the striking employees returned to work. On the following day, Tuesday, June 18, Robinson called a special meeting of the Company's board of directors to discuss his proposal to shut down the body shop operations and contract out all body work. On the next day (Wednesday, June 19) at approximately 4 p.m., Robinson called the bodymen together (Prather, Russell Divers, and Eugene Berg), informed them he was closing the body shop that day and terminating their employment, and instructed them to pick up their final paychecks 2 days later-on Friday, June 21 . He rejected their offer to complete the work then in the body shop. As he had threatened, Robinson then leased out that portion of the Company's premises where the body shop was located to a nonunion body repair organization and contracted with that organization to complete the body work in the shop. With some exceptions, he continued contracting thereafter with that organization to perform body work on autos brought to the Company for that type of repair until November 1, when, after negotiations with the Union, the Company resumed operations of the body shop and recalled Prather, Divers, and Berg to work therein at the rates of pay, wages, hours, and conditions set out in the 1974-77 agreement. While Robinson testified he contemplated closing the body shop for a considerable time prior to doing so and discussed this with the Union, the only evidence supporting the former is his unsupported testimony and a document prepared subsequent to June 19 purporting to show his body shop was not profitable between January 1-June 19, and the only evidence supporting the latter consisted of Robin- son's testimony-corroborated by union negotiators-that he complained of the high cost of the Union's wage and related money proposals vis-a-vis his nonunion competitors in the course of the negotiations preceding execution of the 1974-77 agreement. B. Analysis and Conclusions 1. The arbitration issue The Company contends the issues involved in this proceeding are susceptible of determination under the grievance-arbitration provisions of the 1974-77 agreement between the Company and the Union and the Board should defer to those provisions for resolution of this dispute. Article 3 of the agreement provides that "the employer shall have the exclusive right to hire, suspend and discharge his employees," sets forth five grounds for immediate suspension or discharge (drunkenness, theft or deliberate destruction of property, insubordination, failure to report for work, and gross negligence), and provides that any discharged employee who believes his discharge is unjust may file a grievance, provided the grievance is filed within 5 working days from the date of the discharge (or shall be waived). While there is an article in the contract with the heading, inter alia, "Sub-contracting" (article 19), that article is limited to language barring employees from working during their own time at the same type of work they perform for the Company. Article 23 of the ageement provides that any employee complaint over the Company's interpretation or application of the agreement shall be referable to the shop committee within 3 days after cause for the complaint arises and, in the event the parties to the agreement are unable to resolve it within several specified grievance steps, that the grievance may then be referred to an arbitration committee whose decision thereon "shall be within the scope of the agree- ment and not change or depart from any of its terms or conditions." The time limits prescribed in the contract for the filing of grievances thereunder have expired . Even if this were not so, it appears doubtful that the issues in this proceeding are capable of full resolution under the terms of the agreement. The primary issue here is whether the Company violated the Act by laying off its body shop employees and contracting out its work without giving prior notice to the Union of its intention to do so and giving the Union an opportunity to discuss alternatives to avoid that action or failing to convince the Company to abandon its plant, [to obtain) severance pay, continued employee coverage under the hospital, medical, dental, and pension plans to which the Company contributed, or other measures to alleviate the economic impact upon the affected employees. It is difficult to visualize how the alleged discriminatees in this case could word a grievance which would present to an arbitration committee appointed under the agreement the issue just framed; they might allege that their discharge was unjust within the meaning of article 3 or that contracting out their work and laying them off violated the spirit and intent of the recognition and seniority provisions of the agreement, to be met with the defenses that their grievances were untimely, that the first paragraph of article 3 gives the Company the unilateral right to discharge its employees at will, and that in the absence of specific, limiting language the Company has the right to contract out its work as and when it chooses. An arbitration proceeding on the issues raised by the foregoing (were it even to reach the merits of the dispute, in view of the timeliness issue) would not encompass the primary issue before me (as heretofore stated); it is also clear that an arbitration proceeding on the merits of the dispute might very well result in a dismissal of the grievance, while a contrary result would result under the Act. It would ill-suit the public interest imbedded in the Act to defer to proceedings before a private tribunal which would result in a denial of rights the Act was designed to protect. Since the public law-the National Labor Relations Act, as amended-overrules and supersedes any private con- 8 Under the terms of the Company's franchise agreement with General Motors, it was obligated to maintain a service department for mechanical repairs but it was not required to do body work. ROY ROBINSON CHEVROLET 839 tract and a grievance-arbitration proceeding under the company-union agreement over these discharges would not encompass all the issues arising under the pertinent provisions of that Act, I find and conclude that it would not effectuate the purposes of the Act to defer to the grievance- arbitration provisions of the company-union contract in this matter. 2. The unit and the Union's representative status Under both the 1971-74 and the 1974-77 company-union agreements, the Company recognized the Union as the exclusive collective-bargaining representative of a unit of its employees consisting of journeymen-mechanics, journey- men body and paint men, journeymen partsmen, and journeymen specialists (the lubrication man), excluding salesmen, guards, and supervisors as defined in the Act. All nine of the Company's employees in those classifications and covered by those agreements participated in the June 14-17 strike. On the basis of the foregoing, I find and conclude that a unit of the Company's employees consisting of journeymen mechanics, journeymen body and paint men, journeymen partsmen, and journeymen specialists (the lubrication man), excluding automobile salesmen , guards, and supervi- sors as defined in the Act, constitutes an appropriate unit for collective-bargaining purposes under the Act. I further find and conclude that at all times pertinent the Union represented a majority of the Company's employees within that unit. 3. The contracting-out and discharge issues I have entered findings heretofore that on June 19 the Company discharged its three body shop employees and subsequently contracted with a nonunion operator to lease its body shop and to perform its body shop work at the Company's premises. I have also entered findings hereto- fore that the discharge notice was served by the Company on the employees without advance warning or notice to the Union or the employees. I have also entered findings that Robinson, in the course of the negotiations which preceded execution of the 1974-77 contract, complained that the cost of the Union's money demands placed him in a bad competitive position. I find and conclude that such complaints do not rise to the status of notice to the Union of the Company's intention to contract out the Company's body shop work and discharge its body shop employees. I therefore further find and conclude that the Company discharged its body shop employees contracted with a nonunion operator to lease the Company's body shop and perform the work they had formerly performed without prior notice to the Union or bargaining with the Union concerning its decision to so act or the economic conse- quences on its body shop employees of that action. 4. The violation The Board has consistently held that when an employer, as here, carries out its threat to fire some of its employees, discontinue that part of its operations those employees performed, and, instead, have those operations performed on its premises by another employer, without advance notice to the Union or bargaining with the Union concern- ing that decision and its economic effects upon the employees, it constitutes a violation of Section 8(a)(5) and (1) of the Act. Fibreboard Paper Products Corp. v. N.LRB., 379 U.S. 203 (1964). That is just what the Company did here. I therefore find and conclude that, by discharging Prather, Divers, and Berg on June 19 and contracting with another employer to assume operation of its body shop and perform the work formerly performed by those three employees at the Company's premises, without prior notice to the Union or bargaining with the Union concerning such decision and/or the economic effects of that decision upon those employees, the Company violated Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. At all times pertinent the Company was an employer engaged in commerce in a business affecting commerce and the Union was a labor organization, as those terms are defined in Section 2(2), (5), (6), and (7) of the Act. 2. At all times pertinent Robinson was a supervisor and agent of the Company acting on its behalf. 3. A unit consisting of the Company's employees classified as journeymen mechanics, journeymen body and paint men, journeymen partsmen, and journeymen special- ists (including the lubrication man), excluding automobile salesmen, guards, and supervisors as defined in the Act, constitutes a unit appropriate for collective-bargaining purposes under the Act. 4. At all times pertinent the Union represented a majority of the Company's employees within the aforesaid unit. 5. It would not effectuate the purposes of the Act to defer to the grievance-arbitration provisions of the compa- ny-union contract for resolution of the issues involved in this case. 6. The Company violated Section 8(aX5) and (1) of the Act by discharging its body shop employees and contract- ing with another employer to assume the operation of its body shop with that employer's employees without prior notice to the Union or bargaining with the Union concern- ing that decision and/or the economic consequences of that decision on the affected employees. 7. The aforesaid unfair labor practice affects commerce. THE REMEDY Having found that the Company engaged in unfair labor practices in violation of Section 8(a)(1) and (5) ofthe Act, I shall recommend that the Company be directed to cease and desist therefrom and to take affirmative action de- signed to effectuate the purposes of the Act. It shall be recommended that the Company be ordered to cease and desist from discharging unit employees and contracting out the work they normally perform without prior notice to the Union and bargaining with the Union concerning both such decision and its economic effect upon affected employees. 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It shall also be recommended that the Company make Prather, Divers, and Berg whole for any wage losses they suffered by payment to them of the money they would have earned from the date of their discharges to the date they were reinstated, less any net earnings they may have received in the period, plus payment of any benefits under the contract they lost during such period. Their lost wages 9 I reject the Company's contention that backpay should not be ordered under the circumstances of this case ; it is clear the discharges were at least in part retaliation against the employees for engaging in a strike ; it effectuates shall be computed in accordance with the formula pre- scribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest at 6 percent per annum computed in accor- dance with the formula prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962).9 [Recommended Order omitted from publication.] the purposes of the Act to require a wrongdoer to make wronged persons whole for the economic losses they suffered by virtue of such unlawful action. 1