Gibbs & Cox, Inc.

GIBBS & COX Gibbs & Cox, Inc. and Marine Technicians Guild. Cases 2-CA-17515 and 2-CA-17588 24 June 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS, JOHANSEN, BABSON, AND STEPHENS On 29 January 1982 Administrative Law Judge Raymond P. Green issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. i The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge' s rulings, findings,2 and conclusions and to adopt the recommended Order as modified.3 The judge found, and we agree, that the Re- spondent violated Section 8(a)(1) and (5) of the Act by withdrawing recognition from the Union about the Arlington, Virginia segment of the contractual bargaining unit, by insisting to impasse that the bar- gaining unit exclude Arlington employees, and by unilaterally granting wage increases and other ben- efits to Arlington employees. The facts are not in dispute. In 1946 the Board certified the Union as the exclusive collective-bar- gaining representative of the "technical" employees of the Respondent's naval architectural and marine engineering operation. At the time, the Respond- ent's sole location was New York, New York. Thereafter, the Respondent operated various field offices outside New York to service particular clients. Employees assigned to the field offices were treated as part of the New York bargaining unit. Similarly, when the Respondent opened a field office in Hyattsville, Maryland, in 1972-this time assigning a permanent staff to serve the longer term commitment anticipated at this location-the parties agreed that Hyattsville technical employees were part of a bargaining unit of technicals cov- ered by the New York contract executed that year. Between January 1972 and August 1976, the Hy- i The Respondent has requested oral argument The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties 8 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 8 We shall modify the judge's recommended Order to require the Re- spondent, on request, to reinstate wages, benefits, and working conditions that were in effect prior to the Respondent's unlawful unilateral changes provided that other wages, benefits, and working conditions are not re- duced We also shall issue a new notice accordingly 953 attsville employees, who performed work for the Naval Ships Engineering Center, an office of the U.S. Navy, were covered by that and a successive agreement. In 1976 the Respondent opened an Arlington, Virginia office, the first office to be designated a division separate from New York. The purpose of the Arlington division was to expand the conceptu- al design work it had performed for its Navy client in Hyattsville and ultimately to add non-Navy firms to its client base. The Respondent appointed a division head and assistant division head, transferred 7 employees from Hyattsville and 6 from New York, and hired an additional 12 employees. The Respondent rec- ognized the Union as the bargaining representative of the employees in Arlington on the basis of a card check that showed that a majority of the Ar- lington employees desired union representation. The existing collective-bargaining agreement was applied to them. In the spring of 1977, the parties negotiated a new collective-bargaining agreement that was to remain in effect until 22 August 1980. During ne- gotiations, proposals addressing specifically the working conditions of Arlington employees were submitted by both parties and some provisions of the expiring contract were modified to reflect agreement on these matters. All terms and condi- tions of employment of the resultant contract were applied to both New York and Arlington employ- ees. In 1978 the Respondent established another divi- sion at Newport News, Virginia. There too the Company recognized the Union as the exclusive collective-bargaining representative of the "techni- cal" employees, and the terms and conditions of the 1977-1980 agreement were applied to them. In late 1979 the Newport News employees became dissatisfied with the Union. In June 1980 another labor organization filed a representation petition, asserting that the employees in the New- port News division constituted a separate appropri- ate unit. The Union did not appear at the represen- tation hearing. Instead, it expressed its position in a letter indicating that it was prepared to continue representing the Newport News employees as part of an overall unit, but that it would leave the deter- mination of the unit question to the Board. The Re- gional Director for Region 5 concluded that the Newport News employees constituted a separate unit and directed an election that the petitioning union won. In dicta, the Regional Director indicat- ed that the Arlington employees constituted a sepa- rate appropriate unit. No request for review was filed to the Regional Director's decision. 280 NLRB No. 110 954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the same period, some Arlington employ- ees also began expressing dissatisfaction with the Union. The dissatisfaction stemmed from both spe- cific problems and from a perceived lack of respon- siveness to the Arlington employees' needs by the Union's officials located in New York. Both New York and Arlington management became aware of the dissension by personal and telephone conversa- tions with Arlington employees. By 1 August 1980, the date negotiations commenced for a new con- tract, management was also aware that 5 of the 24 unit employees in Arlington had revoked dues- checkoff authorizations. Thirteen other employees had not joined the Union. Thus, only six Arlington employees were members of the Union as of 1 August. At the same time, there were 193 unit em- ployees in New York. At that first negotiating session, the Respondent stated it would not bargain with the Union on behalf of the employees in the Arlington division. In later correspondence with the Union and the employees, the Respondent justified its refusal on an assertion that the National Labor Relations Board had found the Arlington division to be a separate unit and its conclusion that a majority of the Arlington employees did not wish to be repre- sented by the Union. On 25 August 1980, the Re- spondent announced and implemented wage in- creases and other benefits for the Arlington em- ployees. The judge examined the parties' conduct bearing on the issue of unit scope-voluntary recognition of the Union based on a demonstration of majority support on the opening of the Arlington office; ap- plication of the then-governing, collective-bargain- ing agreement to Arlington employees; negotiation of a new 1977-1980 contract applying uniformly to New York and Arlington offices; and a continued 4-year history of collective bargaining on a multilo- cation basis. From this evidence, the judge con- cluded that, from September 1976 and at all times thereafter, the intent of the parties was to include both Arlington and New York employees in one overall bargaining unit . We agree with the judge that this unit was one voluntarily created and main- tained by the parties right up to the onset of nego- tiations in 1980 and that it is an appropriate unit for bargaining.4 We therefore affirm the judge's appli- cation of the Board's "merger doctrine," under which the Board determines whether the parties have agreed to merge separately certified or recog- 4 A different result obtains when the parties mutually acknowledge that such a relationship is not workable See Crown Zellerbach Corp, 246 NLRB 202 (1979), Clohecy Collision, Inc, 176 NLRB 616 (1969) nized units into one overall unit.5 Accordingly, we find the expressed disgruntlement of 18 employees in a bargaining unit of 217 provides the Respond- ent with insufficient objective considerations for doubting the Union's continuing majority status. Our dissenting colleagues propose that, for unit determination purposes, the Board enter a time capsule and return to when employees were first assigned to the Arlington office. By their approach, provided the Respondent has required a card check in a unit that would have been appropriate at that time, it would be privileged to withdraw recogni- tion from the unit vis-a-vis that segment of employ- ees. Reappraising the unit as they would have deemed it appropriate had the Board been called on to make an initial unit determination in 1976, the dissenters consider factors of geographic sepa- rateness, administrative autonomy, and lack of interchange to justify a separate Arlington unit. As the Board has long recognized, the above factors are fundamental to whether there is a suffi- cient community of interest among employees at separate locations in the first instance. In initial unit determinations, a community of interest of employ- ees at a single location based on these and other factors supports the presumptive appropriateness of a single-location unit. By this presumption, the Act gives careful deference to the interests and con- cerns of individual employees to choose or reject their representatives so that those decisions are best tailored to the peculiar conditions of their work- place. Similarly, in the face of a timely challenge, the Board will not accrete employees in a newly created presumptively appropriate unit into a larger unit if those employees have not had an op- portunity to express their sentiments as to represen- tation.6 Factors supporting a shared community of inter- est at a single location are, however, of lesser co- gency where a history of meaningful bargaining has developed. See, e.g., Standard Brands, 75 NLRB 394 (1947); West Virginia Pulp & Paper Co., 53 NLRB 814 (1943). In such circumstances, great- er latitude should be accorded the collective rights of employees to pursue and preserve the pattern of representation of their choosing. Thus, to charac- terize the unit from the vantage of any period of time but the one presently under consideration is to disturb the reasonable balance the Board seeks to S See, e.g, White-Westinghouse Corp, 229 NLRB 667 (1977 ), General Electric Co, 180 NLRB 1094 (1970) Although Member Stephens agrees with both the result and the basic analysis in this opinion , he does not regard this as a case of unit merger , because the Arlington employees were not certified as a separate unit nor, in his view, were they expressly recognized as a distinct group for bargaining purposes 6 See Melbet Jewelry Co, 180 NLRB 107, 109-110 (1969) GIBBS & COX achieve between the aims of assuring freedom of employees' choice and fostering established bar- gaining relationships. Facts establishing the bar- gaining relationship at the time the Respondent withdrew recognition are precisely those that the dissent urges be ignored: negotiation of a bargain- ing agreement on behalf of employees of both of- fices and application of its terms and conditions of employment, as well as those of a prior agreement, to Arlington and New York alike. These facts bear significantly on the nature of the unit under consid- eration as they determine to what extent bargaining on a multilocation basis has been stabilized by agreement. Only from the dissent's flawed premise that the unit must be redefined as one that was at one time "appropriate for the purpose of selecting a bargain- ing representative" can it follow that this bargain- ing order impairs employees' full exercise of rights guaranteed under the Act. To the contrary, requir- ing that the Respondent continue to recognize the Union on the same basis it has previously recog- nized and bargained guarantees employees in the overall unit the rights secured by Section 9(a) of the Act that "[r]epresentatives designated or select- ed . . . by the majority of the employees in a unit ... shall be the exclusive representative of all em- ployees in such unit . . . ." Certainly, the Act ad- dresses employees' Section 7 rights to refrain from collective action in addition to their right to benefit by it. However, under the majority-rule principles on which the Act is founded,7 the Board is re- quired on an almost daily basis to render decisions subordinating to various degrees the rights of some subgroupings of employees to those of a majority." Examples in representation procedure abound, among them the contract-bar rule, the 1-year certi- fication rule, the requirement that units requested in decertification petitions be coterminous with ex- isting certified or recognized units,9 and denial of separate decertification elections in most instances 7 See Chemical Workers Local I P. Pittsburgh Plate Glass Co, 404 U.S 157, 176 fn. 15 (1971). 8 In this regard, we note that, contrary to the dissent, the record does not support a finding that employees at the Arlington office constitute a "functionally distinct minority group ." As found by the judge, the Ar- lington office evolved out of the Hyattsville field office and was com- posed largely of transfers from the New York and Hyattsville offices For 2 years, Arlington employees worked exclusively for the client with which the Respondent had been under contract at the Hyattsville office, and that client continued to provide 50 percent of the Arlington office business at the time of hearing Although Arlington employees ' work dif- fered in some respects from the work performed in Hyattsville, they re- mained similar classifications of employees performing similar work See generally Kalamazoo Paper Box Corp, 136 NLRB 134, 137 (1962). 9 Campbell Soup Co., 111 NLRB 234 (1955) 955 for professionals seeking severance from an overall mixed unit of professionals and nonprofessionals.10 In addition to undermining the democratic prin- ciples underlying the Act, the approach proposed in the dissent is impractical from the perspective of promoting industrial stability. By its broad sweep, it appears to extend carte blanche to one party to a collective-bargaining relationship, the employer, to manipulate the scope of a contractual unit. Absent an election, unit appropriateness involving multiple locations would turn largely on circumstances of whether the employer had demanded a card check each time it assigned employees to a new facility and was able to influence representational choices in each location. Regardless of whether a broader bargaining relationship emerges later, the employer would any time thereafter be privileged to rely on evidence of diminished union support on a loca- tion-by-location basis effectively to fragment the unit unilaterally. In the professed pursuit of em- ployee rights, the employer would be able to un- dermine the collective strength of employees by withdrawing its consent to a contractual unit based on evidence that falls short of demonstrating disaf- fection in the overall unit. We consider such a result to be in derogation of the Board's responsi- bility under the Act to render in each instance a determination of an appropriate unit" and a result that contravenes the statutory objective of main- taining industrial stability. As stated by the Su- preme Court, "[t]he underlying purpose of this stat- ute is industrial peace. To allow employers to rely on employees' rights in refusing to bargain with the formally designated union is not conducive to that end, it is inimical to it." Brooks v. NLRB, 348 U.S. 96, 103 (1954).12 Contrary to our dissenting colleagues, we are not indifferent to the rights of employees in a single lo- cation to avoid being swept, against their will, into a union-represented multilocation unit.' 3 To the 10 See Westinghouse Electric Corp, 115 NLRB 530, 532-533 (1956); Great Falls Employers Council, 114 NLRB 370, 371 (1955) But see Utah Power & Light Co, 258 NLRB 1059 (1981) 11 See Pittsuurgh Plate Glass, supra at 173, Mallinckrodt Chemical Works, 162 NLRB 387, 402 (1966) 12 For reasons stated by the judge, we also reject the Respondent's contention that this bargaining order "establishes " a unit of professional and nonprofessional employees contrary to the provisions of Sec 9(b) is Indeed , as set out above, the Arlington employees manifested their support of the Union through a showing of authorization cards It was also abundantly clear that they would be joining the existing unit, since the Hyattsville office, whose functions were taken over by the Arlington office, had been included with the New York office under a single collec- tive-bargaining agreement That bargaining agreement was applied to these employees immediately upon their manifesting their support for the Union, and so far as the record shows, no employees protested this result either then or when a new collective-bargaining agreement was negotiat- ed for the 1977-1980 term 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD extent our dissenting colleagues suggest that the Arlington employees have no alternative other than to withdraw from the union-represented mul- tilocation unit or to suffer mistreatment or neglect at the hands of an "unresponsive bargaining repre- sentative," they overlook the duty of fair represen- tation that the Act imposes upon an exclusive bar- gaining representative to serve and represent the interests of all members of the unit. This duty ex- tends to collective-bargaining negotiations as well as contract administration and grievance handling. Ford Motor Co. v. Huffman, 345 U.S. 330 (1953). If, for example, the Union gives the Arlington em- ployees less assiduous representation at the bargain- ing table or in grievance handling because of their expressed lack of support for the Union, then the employees can secure their rights in these matters by filing a Section 301 suit in Federal court or an 8(b)(1)(A) charge with the Board. See, e.g., Team- sters Local 860 (Emporium), 236 NLRB 844 (1978), affd. 652 F.2d 1022 (D.C. Cir. 198 1).14 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Gibbs & Cox, Inc., New York, New York, and Arlington, Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Insert the following after paragraph 2(a) and reletter the subsequent paragraphs. "(b) On request, reinstate those wages, benefits, and working conditions that were in effect prior to the Respondent's unlawful unilateral changes pro- vided that wages, benefits, and other working con- ditions are not reduced. "(c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order." 2. Substitute the attached notice for that of the administrative law judge. 14 We also note that, contrary to the implication of the dissent, multi- location bargaining units do not necessarily endure forever under Board precedent, regardless of changing circumstances When changes in the organizational structure or operations of an employer render a single unit inappropriate , "compelling circumstances" may thereby exist for disre- garding the bargaining history on the single-unit basis Rock-Tenn Co, 274 NLRB 772 (1985); Crown Zellerbach Corp, 246 NLRB 202, 204 (1979), Capehart-Farnsworth Co., 111 NLRB 800, 802 (1955) See also Co- lumbia Gas Transmission Corp., 213 NLRB 111, 112 (1974) (then Chair- man Miller concurring). CHAIRMAN DOTSON and MEMBER DENNIS, dissent- ing. Contrary to our colleagues, we would find that the Respondent was privileged to withdraw recog- nition from the Union because it had a good-faith doubt, based on objective considerations, as to the Union's continuing majority status in an appropri- ate unit consisting of the employees located in Ar- lington, Virginia. Our colleagues' insistence upon submerging this small group of employees in the much larger New York unit effectively precludes the Arlington employees from ever changing or re- jecting their bargaining representative. Not only is this result unconscionable, but also it conflicts with Board and Supreme Court precedent protecting the full exercise of employees' statutory rights. 1. FACTUAL BACKGROUND In 1946 the Board certified the Union as the ex- clusive collective-bargaining representative of the Respondent's "technical" employees. At that time, the Respondent's sole location was in New York, New York. Thereafter, the Respondent operated various field offices outside New York to service particular clients, including a field office opened in 1972 in Hyattsville, Maryland. Employees assigned to the field offices were treated as part of the New York bargaining unit. In 1976 the Respondent decided to create a new and separate division located in Arlington, Virgin- ia, and to close the Hyattsville field office. As the judge found, the restructuring was a significant change in the Company's operations and reflected a desire to expand and diversify its business. A di- vision head and assistant division head were ap- pointed, and the new office was staffed with 13 transferees (7 from Hyattsville and 6 from New York) and 12 new hires. The Respondent recog- nized the Union as the bargaining representative of the employees in Arlington on the basis of a card check that showed that a majority of the Arlington employees desired union representation. The exist- ing collective-bargaining agreement was thereafter applied to them. In the spring of 1977 the parties negotiated a new collective-bargaining agreement that was to remain in effect until 22 August 1980. All the terms and conditions of employment of the agreement were applied to both the New York and Arlington employees. In 1978 the Respondent established another divi- sion at Newport News, Virginia. Here, too, the Company recognized the Union as the exclusive collective-bargaining representative of the "techni- GIBBS & COX cal" employees, and the terms and conditions of the 1977-1980 agreement were applied to them. In late 1979 the Newport News employees became dissatisfied with the Union. In June 1980 another labor organization filed a representation petition, asserting that the employees in the New- port News division constituted a separate appropri- ate unit. The Union did not appear at the represen- tation hearing. Instead, it expressed its positions in a letter indicating that it was prepared to continue representing the Newport News employees as part of an overall unit, but that it would leave the deter- mination of the unit question to the Board. The Re- gional Director for Region 5 concluded that the Newport News employees constituted a separate unit and directed an election that the petitioning union won. In dicta, the Regional Director indicat- ed ti:at the Arlington employees constituted a sepa- rate appropriate unit. During the same time period, the Arlington em- ployees also began expressing dissatisfaction with the Union. The dissatisfaction stemmed from both specific problems and from a perceived lack of re- sponsiveness to the Arlington employees' needs by the Union's officials located in New York. Robert Erlich, the New York office vice president who was in charge of labor relations, had many conver- sations with employees about such topics, including several meetings with the Arlington staff in De- cember 1979 and direct phone calls to him from unit employees. Because of the physical arrange- ment of the Arlington office, local management was also aware of and often included in the myriad conversations the employees had about their dissat- isfaction with the Union. When Arlington Vice President Fulton made his daily rounds, he was in- cluded in many of these conversations. Unit em- ployee Kevin Moak testified that, prior to August 1980, he told several supervisors in Arlington that he and the other employees did not wish to be rep- resented by the Union. In February or March 1980, Lou Chinol, an Arlington unit employee and the Union's director, told Fulton that the employees no longer wanted the Union to represent them, and that Chinol would no longer be the Union's repre- sentative. Fulton conveyed the conversation to Erlich. As of 1 August 1980 there were approximately 193 unit employees located in New York and 24 in Arlington. Of the 24 employees in Arlington, 13 had never joined the Union and 5 had revoked their dues-checkoff authorizations.' Thus, only six i The Union's president Ronald Carlson testified that the revocation of a dues-checkoff authorization is equivalent to a resignation from union membership 957 Arlington employees were members of the Union as of 1 August. The record is clear that both New York and Arlington management were well aware of the revocations and openly discussed them with the unit employees. In the summer of 1980 the Union gave notice of its desire to negotiate a new contract . On 1 August 1980 the parties held their first meeting. At the meeting and in later correspondence to the Union and the employees, the Respondent stated that it would not bargain with the Union on behalf of the employees in the Arlington division because the National Labor Relations Board had found that it was a separate unit and because a majority of the Arlington employees did not wish to be represent- ed by the Union. On 25 August 1980 the Respond- ent announced and implemented wage increases and other benefits for the Arlington employees. II. THE ADMINISTRATIVE LAW JUDGE'S DECISION ADOPTED BY THE MAJORITY Based on his review of the bargaining history, the judge found that "from the time recognition was accorded to the [Union] on behalf of the Ar- lington Division employees in September 1976 the intent of the parties, as expressed by their conduct, was and continued to be to include these employ- ees in the overall bargaining unit with the New York employees." In light of this finding and the Board's general reluctance to disturb a unit estab- lished by collective bargaining, the judge conclud- ed that "the only appropriate unit herein is one consisting of the New York and Arlington Division employees." Because the Arlington employees were an inte- gral part of a single unit with the New York em- ployees, the judge reasoned that expressions of dis- satisfaction with the Union by the small group of Arlington employees did not provide the Respond- ent with sufficient objective considerations for doubting the Union's continuing majority status in the overall unit. Accordingly, the judge concluded that the Respondent violated Section 8(a)(5) by in- sisting to impasse upon the exclusion of the Arling- ton employees from the bargaining unit, by with- drawing recognition from the Union as the repre- sentative of the Arlington employees, and by uni- laterally granting the Arlington employees wage increases and other benefits. III. ANALYSIS The judge correctly recognized that the critical issue presented is whether the Arlington employees constitute a separate appropriate unit. If that ques- tion is answered in the affirmative, the complaint must be dismissed because the Respondent had suf- 958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ficient objective considerations for doubting the Union's majority status in the Arlington unit. As discussed above, the record is replete with evi- dence that, prior to the 1980 negotiations, the Ar- lington employees informed management that they no longer wanted the Union to represent them. Indeed, the Union's director conceded as much to management.2 Turning to the unit question, it is important to recall that soon after the Arlington office opened the Respondent voluntarily recognized the Union as the employees' bargaining representative after it demonstrated that it enjoyed majority status among the Arlington employees. The record establishes that at the time of recognition the Arlington divi- sion constituted a separate appropriate unit.3 It was geographically separate from New York; it was functionally distinct and administratively autono- mous, with substantial authority vested in the divi- sion vice president; and there was no temporary interchange of employees between New York and Arlington. If the Arlington employees constituted a separate appropriate unit for the purpose of selecting a bar- gaining representative, the question arises why those employees are not also a separate appropriate unit for the purpose of rejecting a bargaining repre- sentative. The answer, according to the judge and our colleagues, is that the parties (i.e., the Employ- er and the Union) intended to include the Arling- ton employees in one overall unit with the New York employees. Our colleagues' decision represents an applica- tion of the Board's so-called merger doctrine. See, e.g., Westinghouse Electric Corp., 227 NLRB 1932 (1977); General Electric Co., 180 NLRB 1094 (1970); W. T Grant Co., 179 NLRB 670 (1969). Under the merger doctrine, the Board examines the parties' bargaining history to determine whether their intent was to "obliterat[e]" separate appropri- ate units by "merg[ing] [them] into [one overall] unit." General Electric, 180 NLRB at 1095. Where the record establishes that the parties agreed to merge separately certified or recognized units, a Board election can be conducted only in the merged unit.4 2 See, e g, Sofco. Inc, 268 NLRB 159 (1983); Upper Mississippi Towing Corp, 246 NLRB 262 (1979). 9 Although the General Counsel argued to the judge that the Arling- ton employees constituted an accretion to the New York unit, the judge made no such finding, and no party has excepted to the judge's failure to adopt the General Counsel's accretion theory 4 Westinghouse, supra, is a particularly graphic illustration of the merger doctrine In that case, the Board dismissed a petition seeking to decertify the union as the representative of the employees employed at the employer's Charlotte, North Carolina plant Only 1 year before the filing of the petition, the Board had found that the Charolette employees constituted an appropriate unit when it certified the union as their bar- gaining agent. Nonetheless, the Board concluded that the petitioned-for In defining the appropriate unit in other cases, however, the Board has recognized that its defer- ence to bargaining history should not be absolute. In West Virginia Pulp & Paper Co., 120 NLRB 1281, 1284 (1958), the Board stated that a unit es- tablished by collective bargaining will not be re- spected if it is "repugnant to Board policy or so constituted as to hamper employees in fully exercis- ing rights guaranteed by the Act." In Great Atlan- tic & Pacific Tea Co., 153 NLRB 1549, 1550 (1965), cited by the judge, the Board phrased the test in terms of whether an exception to the Board's usual practice is required by "the dictates of the Act or other compelling circumstances."5 In the instant case, the parties' bargaining history should not be honored because the parties have created a unit that "hamper[s] employees in fully exercising rights guaranteed by the Act." In 1976 a small group of 25 employees in Arlington desired union representation. Three years later, they became dissatisfied with the quality of representa- tion they received and wanted to be unrepresented once again. The "dictates of the Act," specifically Section 7, protect their right to change their mind and "refrain from" union activity. The unit the par- ties created, however, effectively prevents the Ar- lington employees from ever exercising that statu- tory right because it binds them to a group of em- ployees eight times their size, located hundreds of miles away, that does not suffer from their problem of an unresponsive bargaining representative. The parties' unit thus relegates the Arlington employees to perpetual minority status within the larger group. To find a unit so constituted to be the only appropriate one is to ignore the Supreme Court's admonition that the Board "exercise care that the rights of employees under Section 7 of the Act ... are duly respected," and that the Board "pre- vent a functionally distinct minority group of em- ployees from being submerged in an overly large unit." Chemical Workers Local 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157, 172-173 (1971). In sum, this case presents a compelling argument for disre- garding the parties' bargaining history and holding that the Arlington division unit, which was appro- priate for the purpose of selecting a bargaining rep- resentative, remains appropriate for the purpose of rejecting that representative. The same result is reached if one analyzes this case from the standpoint of waiver. In agreeing to unit was no longer appropriate because the bargaining history established that the Charolette unit had been merged into a single nationwide unit consisting of all of the employer's plants Accordingly, the only way the Charlotte employees could decertify the union would be to do so on a nationwide basis S Accord Columbia Broadcasting System, 214 NLRB 637, 643 (1974) GIBBS & COX combine the Arlington and New York groups into one unit, the Union effectively waived the Section 7 right of the Arlington employees to displace their bargaining representative . In NLRB v. Magnavox Co. of Tennessee, 415 U.S. 322, 325 (1974), howev- er, the Supreme Court stated that while a union is free to waive employee rights "in the economic area," this is not true where the employees' right "to exercise their choice of a bargaining representa- tive is involved-whether to have no bargaining representative, or to retain the present one, or to obtain a new one." Because this case involves the Section 7 right of employees to refrain from having a bargaining representative, Magnavox instructs that the union has no authority to waive it. 959 that fragment would otherwise have been appropri- ate. Applying these principles to the facts presented here, we find that the Arlington employees consti- tuted, an appropriate unit in 1976 when collective representation was sought and recognition was ex- tended. That unit remained appropriate in 1980 when collective representation was no longer de- sired and recognition was withdrawn. Accordingly, because the Respondent had objective consider- ations for doubting the Union's majority status in an appropriate unit, we would dismiss the com- plaint. APPENDIX IV. CONCLUSION Our colleagues seek but one goal in this case: stable bargaining relationships. To obtain it they stand ready wholly to ignore these employees' Sec- tion 7 right of free choice. "When those goals con- flict, the Board's job is to strike a sensible balance between them." Spencer v. NLRB, 712 F.2d 539, 566 (D.C. Cir. 1983). The result the Board reaches here and in other merger cases such as Westing- house, supra, is not "sensible." This Board is not balancing anything in applying its merger doctrine because it accords absolutely no weight to the em- ployees' Section 7 right to refrain from collective representation. The Act speaks specifically of em- ployees' Section 7 right to refrain from collective action. By contrast, "stable bargaining relation- ships" is a general statutory policy, and that term itself appears nowhere in the Act. Our colleagues ignore the will of Congress when they denigrate specific statutory rights in favor of general consid- erations of policy. For all the foregoing reasons, we will not adhere to the merger doctrine in determining the appropri- ate unit in cases involving the Section 7 right of employees to reject or change their bargaining rep- resentative. In our view, the following formulation represents a reasonable accommodation between the conflicting goals of employee free choice and bargaining stability: Absent unusual circumstances, any unit that was appropriate for the purpose of se- lecting a bargaining representative remains appro- priate for the purpose of rejecting that representa- tive or obtaining a new one. The appropriateness of that unit cannot be extinguished merely by a mutual intent on the part of an employer and a union to conduct collective bargaining on the basis of some other unit. The unit alleged to be appropri- ate at the present time, however, must have been the one in which recognition was originally grant- ed, and not merely a fragment of that unit, even if NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT withdraw recognition and refuse to bargain in good faith with Marine Technicians Guild, as the exclusive collective-bargaining repre- sentative of our employees located in our Arling- ton, Virginia division who are part of the appropri- ate unit set forth below. WE WILL NOT bargain to impasse with the Guild on the condition that the etablished bargaining unit be modified to exclude our employees located in our Arlington division. WE WILL NOT unilaterally grant wage increases or other benefits to our employees without first bargaining in good faith with the Guild. WE WILL NOT in any like or related manner refuse to bargain in good faith with the Guild or interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain in good faith with the Guild as the exclusive bargaining representative of our employees in the appropriate unit set forth below, with respect to wages, rates of pay, hours 960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed written agreement . The appropriate unit is: All technical employees (including but not limited to such classifications as draftsmen, senior designers, junior designers, designer aides, learners and ship arrangement special- ists), and all professional employees having white badge status (including but not limited to naval architects, marine engineers, electrical engineers, electronic engineers, ocean engi- neers, H.V.A.C. engineers, mechanical engi- neers, civil engineers, structural engineers and sedimentologists), employed by Gibbs & Cox Inc. at its New York, New York place of busi- ness and at its Arlington, Virginia Divsion; ex- cluding all office clerical employees, managers and executive employees, guards and supervi- sors as defined in Section 2(5) of the Act. WE WILL, on request, reinstate those wages, ben- efits, and working conditions that were in effect prior to our unlawful unilateral changes provided that wages, benefits, and other working conditions are not reduced. GIBBS & COX, INC. James Wasserman, Esq., for the General Counsel. Hill B. Wellford Jr., Esq., and Ann Gordon Greaver, Esq. (Hunton & Williams), of Richmond, Virginia, for the Respondent. Stephen Klausner, Esq., of Sommerville, New Jersey, for the Charging Party. DECISION STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge. This case was tried before me on October 13, 14, 15, 20, 21, and 26, 1981. The charge in Case 2-CA-17515 was filed by the Union on September 5, 1980, and the charge in Case 2-CA-17588 was filed on October 10, 1980. An order consolidating cases, consolidated complaint and notice of hearing was issued by the Regional Director for Region 2 on December 31, 1980. In substance, it is alleged that Gibbs & Cox has withdrawn recognition from the Marine Technicians Guild regarding those em- ployees represented by it who are located in Arlington, Virginia.' It also is alleged that on August 5, 1980, the Respondent unilaterally granted wage increases and other benefits to the aforesaid employees, and that Re- spondent insisted on excluding the Arlington employees i The Arlington division is at times also referred to as the Washington division as both parties use these descriptions interchangeably from the unit as a condition of reaching agreement with the Guild for a new contract. 2 It is the Respondent's position that the employees lo- cated in Arlington, Virginia, constitute a separate appro- priate bargaining unit and that it had an objective basis to assert a good-faith doubt regarding the Guild's con- tinuing majority status in that unit. Additionally, the Re- spondent argues that the unit in Arlington is composed of professional and nonprofessional employees and be- cause the professional employees never had an opportu- nity to vote for separate representation, the original rec- ognition was inappropriate under the provisions of Sec- tion 9(b)(1) of the Act. The General Counsel argues that the Arlington group of employees was merged into an overall bargaining unit with the existing New York City unit of employees at least since 1976. Accordingly, the General Counsel as- serts that even if the employees in Arlington had ex- pressed their desire to be without union representation, that could not have yielded the basis of good-faith doubt because those employees were only a small part of a much larger unit. Concerning the issue of professional employees, the General Counsel contends that to the extent that the Arlington office employed professional employees, those types of professionals have historically been a part of the bargaining unit, and therefore the strictures of Section 9(b)(1) of the Act are not applica- ble.a On the entire record in this case, including my obser- vation of the demeanor of the witnesses, and after due consideration of the briefs filed, I make the following FINDINGS OF FACT 1. JURISDICTION It is conceded that Gibbs & Cox, Inc. is a New York corporation engaged in the business of marine designing and naval architecture on a contract basis. It also is con- 2 After the trial opened , a settlement was made in relation to the alle- gations of par 10 of the complaint as amended That partial settlement was approved by me and therefore that allegation has been withdrawn s Sec 9(b)(1) of the Act states, "That the Board shall not ( 1) decide that any unit is appropriate for such purposes if such unit includes both professional employees and employees who are not professional employ- ees unless a majority of such professional employees vote for inclusion in such unit " The definition of a professional employee is set forth in Sec. 2(12) of the Act as follows. The term "professional employee" means- (a) any employee engaged in work (i) predominantly intellectual and vaned in character as opposed to routine mental , manual, me- chanical, or physical work; (u) involving the consistent exercise of discretion and judgment in its performance, (in) of such a character that the output produced or the result accomplished cannot be stand- ardized in relation to a given period of time, (iv) requiring knowl- edge of an advanced type in a field of science or learning customari- ly acquired by a prolonged course of specialized intellectual instruc- tion and study in an institution of higher learning or a hospital, as distinguished from a general academic education or from an appren- ticeship or from training in the performance of routine mental, manual, or physical processes, or (b) apy employee, who (i) has completed the courses of specialized intellectual instruction and study described in clause (iv) of para- graph (a), and (ii) is performing related work under the supervision of professional person to qualify himself to become a professional employee as defined in paragraph (a) GIBBS & COX 961 ceded that annually the Respondent performs services valued in excess of $50,000 directly to firms located out- side the State of New York. Therefore, it is concluded that the Respondent is an employer engaged in interstate commerce within the meaning of Section 2(2), (6), and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED It is agreed and I find that the Marine Technicians Guild is a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE OPERATIVE FACTS Gibbs & Cox was founded in 1931, and its primary functions are to provide engineering and design services in relation to the conception, planning, and construction of naval structures . Although a major aspect of its busi- ness relates to the design of ships, principally for the United States Navy, it also does such work for commer- cial customers and foreign governments . It also is en- gaged in the design of various types of ocean platforms such as oil rigs. In performing its work , the Company utilizes technical employees such as draftsmen and de- signers (i.e., advanced draftsmen), whose functions are to translate architectural and engineering specifications into blueprints or other types of drawings . Additionally, the Company employs a large number of professional em- ployees such as naval architects and engineers in a number of different specialties.4 It also appears that be- cause of the type of services performed , employees gen- erally work on particular projects (for example a concep- tual design of an aircraft carrier) and therefore a custom type of service is provided rather than a standardized product. By and large, projects are performed by teams which are headed up by a project leader and may in- volve a variety of professional and nonprofessional skills. On November 27, 1946 , following a secret-ballot elec- tion conducted by the National Labor Relations Board, a Certification of Representative was issued to the Marine Technicians Guild. Accordingly , that Union was certi- fied as the exclusive collective-bargaining representative of the Respondent's employees in the following unit: All drafting employees (excluding engineers, assist- ant engineers, scientific assistants, supervisors and assistant supervisors), technical employees (exclud- ing supervisors, engineers , assistant engineers and material man A), and model makers (excluding fore- men) of the Employer, New York, New York, ex- cluding executive , managerial and supervisory em- ployees.5 At the time of the certification , the Company was only located in New York City. In the years following 1946 , successive collective-bar- gaining agreements were executed by the Respondent 4 Such as marine engineers , structural engineers, electrical engineers, electronic engineers, etc 5 The unit was established pursuant to a Stipulation for Certification Upon Consent Election That is, in 1946 the parties agreed to the unit definition and no hearing was held to define the unit and the Guild . It appears that, notwithstanding the terms of the above-noted certification, by the early 1950s some nonmanagerial, nonsupervisory engineering employees were encompassed within the unit either by express or tacit agreement of the parties. In 1967, the Union petitioned for a clarification of the unit, asserting, inter alia, that certain professional em- ployees had been promoted out of the unit. The job clas- sifications which the Union sought to be included within the certified unit were specialists , associate, assistant, and junior engineers as well as some full engineers. On No- vember 15, 1967, the Board (168 NLRB 220) dismissed the petition, holding that the professional employees the Union sought to be included in the unit had never been represented by the Guild and that to include them in the unit would be contrary to the provisions of Section 9(b)(1) of the Act. At the same time, the Board did rec- ognize that the unit as it then existed included both pro- fessional and nonprofessional employees . Unfortunately, I do not have the benefit of the record in that case to give a clear idea which professional employees were included in the unit at that time. Nevertheless, based on the present record, including the testimony of Richard Ehrlich, a vice president, and R. P. Fulton, the manager of the Arlington division (both of whom have been employed by the Company for a considerable amount of time and who have risen through the ranks), it appears that since at least 1972 all professional employees , such as naval architects and en- gineers, have been encompassed wihtin the bargaining unit and have been covered by the applicable contract terms, until they have been promoted to managerial or supervisory positions . That is, their testimony indicates to me that although most professional employees are and have been designated as managerial/supervisory employ- ees, those who are not have been treated as part of the nonmanagerial, technical staff covered by the labor con- tracts. Thus, in the parlance used by the parties, blue badge employees are management and/or supervisory employees, whereas white badge employees are not. In reality, therefore, the dividing line between bargaining unit employees and nonbargaining unit employees has not depended on whether an individual was an engineer, but on whether that individual had been promoted to blue badge status and therefore was considered to be managerial or supervisory . Indeed, in all the collective- bargaining agreements from 1972 to the most recent con- tract the title "Design Engineer" has been listed as one of the job classifications encompassed by the agreements, except to the extent that such persons may be executive, managerial, or supervisory employees. In fact, there does not appear to be a specific job category called "design engineer," and given the testimony of Ehrlich and Fulton, above, and the fact that the Company 's business is principally related to design, it would seem that the term design engineer as it appears in the contracts does not refer to a specific engineering discipline, but was in- 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tended to encompass all engineering personnel who were neither executives, managers, nor supervisors.6 It appears that the Respondent has, from time to time, opened and maintained field offices outside New York. The function of these field offices was to provide imme- diate engineering or technical services to clients located outside the State of New York, and they were generally maintained only for the life of a client's contract. Em- ployees assigned to these field offices continued to be covered by the New York collective-bargaining agree- ment. In 1972 a field office was established in Hyatts- ville, Maryland, to provide services under a contract with a bureau of the Navy called the Naval Ships Engi- neering Center (NAVSEC). It appears that this contract was somewhat open ended in scope and pursuant to its terms the Respondent worked on a variety of projects. Also, as the contract was of a fairly long duration, the Respondent situated a permanent staff in Hyattsville. This location was chosen because of its proximity to the naval facility which was the Respondent's customer. The parties agreed that the nonmanagerial technical employ- ees who were employed in the Hyattsville office were part of a bargaining unit encompassed by the New York collective-bargaining agreement then extant. That is, it was agreed that this group of employees located in Hy- attsville on a permanent basis did not constitute a sepa- rate and distinct collective-bargaining unit. Encompassed within the group of employees employed at Hyattsville were persons having naval architecture and engineering degrees.' In the spring of 1976, the Company decided to create a Washington division to be located in Arlington, Virgin- ia. Previously, the Company was structured without geo- graphic divisions, and all divisions were based in New York. This restructure therefore represented a significant change in the Company's structure and reflected a desire to have the Washington division encompass a greater re- sponsibility in seeking and servicing customers. 8 The 6 Art. I of the collective-bargaining agreements executed in 1972, 1974, and 1977 states. This agreement shall apply to employees classified in the "technical" classification schedule listed in Appendix "A" of this agreement, except executive, managerial , and supervisory employees as designat- ed by the Employer, employees borrowed from other firms and em- ployees hired for summer work. The respective Appendices "A" for each agreement lists senior design engineers, staff design engineers, associate and assistant design engineers, designers, designer aides, and learners 7 A naval architect is a person having a bachelor of science degree The discipline concerns the study of the mechanics necessary to ensure, among other things, that a surface vessel will float . It appears that certain colleges and universities , such as Michigan, will confer a single degree in naval architecture and marine engineering As opposed to naval architec- ture, marine engineering relates to the design of the power plant to drive a vessel A number of persons employed by the Respondent have this combined degree and tend to specialize in one area or the other after they become employed This is perhaps analogous to attorneys who, after obtaining their degrees, tend to specialize in discrete areas of the law 9 As of July 1976, the organizational structure was changed to provide for five divisions These were the hull division, the machinery division, the electrical division, the finance and administration division, and the Washington division The Washington division was organized to have a hull department and a machinery department purpose of creating this new division, as explained by Fulton, was to seek to expand certain high-level concep- tual design work for the Navy and also to seek other non-Navy clients. Insofar as work for the Navy was con- cerned, it was anticipated that because an increasing number of that service's engineering employees were leaving due to pay considerations, coupled with a hiring freeze, an opportunity existed to perform additional and qualitatively more significant work as a subcontractor. The selection of the office location was motivated be- cause the naval office, that was the client for the Hyatts- ville operation, was scheduled to be merged and consoli- dated with another naval office and to be located in Crystal City, Virginia, which is in close proximity to Ar- lington. On May 24, 1976, the Respondent issued a bulletin to the Hyattsville employees entitled "Company Reorgani- zation." This read as follows: 1. In consideration of the need for an expansion of our marketing effort, and the forecast of in- creased availability of tasks in the Washington area during the next several years, the following organi- zational changes are effective Tuesday, June 1, 1976. 2. Mr. P. H. Hadley, Jr., Vice President, will devote full time to our marketing effort. It is intend- ed that he spend part of his time in each of our of- fices. 3. Our Washington, D.C. office is hereby given Division status, with charter to increase the staff consistent with the anticipated expanding market. Advice and assistance will be available from the New York Office. 4. Mr. R. P. Fulton will direct our Washington, D.C. operation, and is appointed Division Head. Mr. R. J. Scott is appointed Assistant Division Head. 5. Your help in meeting our objectives will be ap- preciated. In connection with the creation of the Arlington divi- sion, it was intended to close the Hyattsville office and to relocate to Arlington as soon as possible. However, because space was not immediately available, the actual physical move did not take place until September 1976. At the same time, the employees at Hyattsville were all given the option of transferring to the new division. Of approximately 15 employees at Hyattsville (in nonmana- gerial technical classifications), 7 elected to transfer to the Arlington division. As of September 1976, there were 25 nonmanagerial technical employees in the newly cre- ated Arlington division, of which 7 were transferees from Hyattsville and 6 were transferees from New York.9 The remainder were newly hired employees. Until late 1977 NAVSEC was the Arlington division's 9 Of the seven people who transfered from Hyattsville , two were engi- neers and one was a naval architect Of the six people who transferred from New York, two were engineers At the time the Arlington office opened, there were approximately 173 bargaining unit employees sta- tioned in New York City I GIBBS & COX sole client, and although the division was thereafter able to obtain work from other clients NAVSEC has contin- ued to be the largest account, generating about 50 per- cent of the workload. The parties agree that sometime in September 1976 the Respondent recognized the Guild as the bargaining rep- resentative of the nonmanagerial "technical" employees in Arlington and that the existing collective-bargaining agreement was thereafter applied to them. It appears that recognition was accorded based on a card check, which showed that a majority of the Arlington employees des- ignated the Guild as their collective-bargaining repre- sentative. During the spring and summer of 1977, the Guild and the Respondent negotiated a new collective-bargaining agreement that, by its terms, was to expire on August 22, 1980. Although this contract does not explicitly state that the unit should encompass both the New York and the Arlington employees, it is conceded by the Respondent that no separate contract was negotiated on behalf of the latter group and that all the terms and conditions of em- ployment of this agreement were applied to them. t 0 Moreover, there is other evidence that indicates the par- ties, during those negotiations, treated the employees at both locations as constituting one unit for bargaining purposes." For instance, during the negotiations, the Company proposed that the union-security clause of the past contract be modified so as not to apply in "Right to Work States." As the only employees in such a State were the Arlington employees, the Company's intent was obviously to modify the contract to reflect their situa- tion. Also, certain provisions of the 1974 to 1977 con- tract relating to travel were modified so that it was clear that the Arlington employees would derive travel bene- fits. 12 Although it may be that neither the Guild nor the 10 The Company asserts that the union-security clause of the 1977- 1980 contract was not applied to the Arlington employees Although this is strictly correct, the reason was because Virginia is a "Right to Work State" and the Union determined that it could not legally enforce this provision regarding these employees At the same time, the Company concedes that it deducted union dues from the pay of the Arlington em- ployees who signed dues-checkoff authorization for the Guild II Apart from the fact that the Arlington office was given divisional status, the most compelling fact in favor of a conclusion that it should be a separate bargaining unit is geography In this respect, Arlington is lo- cated more than 200 miles from New York City Also, apart from its ini- tial staffing, there does not appear to have been any interchange of em- ployees between Arlington and New York where each group is separate- ly supervised In addition, the evidence indicates that recruiting , hiring, promotion, ment increase, discharge, and discipline decisions are essen- tially made at the local level, although approval of those decisions ulti- mately is given in New York 12 Thus, art XIII-3(a) and -4(a) of the 1974-1977 contract provided Time spent in traveling on Company assignment does not include time spent in traveling from the staff member's home to the usual departure site in the New York area, e g, railroad station or airport terminal, or, on the return trip, from such site to the staff member's home [Emphasis added ] The counterpart provisions in the 1977-1980 contract, at art XIII-3, deleted reference to New York and read as follows Time spent in traveling on assignment by the Employer does not include time spent in traveling between the staff members home and the usual place of departure and/or arrival, (e g railroad station, air- port terminal, etc) Travel time does include travel between the office and the usual place of departure and/or arrival Also, art XiII-4(e) of the 1974-1977 contract read- 963 Company spent much time, if any, in discussing the situa- tion of the Arlington employees in the 1977 negotiations, it is my opinion that both parties intended and under- stood that whatever agreement was reached, it would be applied automatically to those employees without any separate negotiations on their behalf. In short, it is my opinion that in 1977, the parties negotiated on the premise that the Arlington and New York employees constituted a single bargaining unit in the same fashion as when the Hyattsville field office was in existence. t a In 1978, the Respondent established another division at Newport News, Virginia. Here, too, the Guild was re- congized by the Company as the exclusive collective- bargaining representative of the "technical" employees and the terms and conditions of the 1977-1980 agreement was applied to them. In the summer of 1979, employees at Arlington began expressing their dissatisfaction with the Guild. Apparent- ly one of the issues giving rise to this dissatisfaction re- lated to an assessment imposed by the Guild on persons who neither were paying union dues nor agency fees, the assessment being designed to offset additional expenses incurred for major medical insurance. t 4 In this respect, some of the union members at Arlington felt that the as- sessment against nonmembers was not fair. Also, there appears to have generated resentment against the Guild because of a feeling among some of the Arlington em- ployees that they could be earning more money and better benefits without a union contract. Finally, there appears to have been a general malaise due to a per- ceived lack of responsiveness by the Guild's officials who were located in New York. As a result, during a period from the summer of 1979 through the summer of While absent from New York on such trips, employees will be sub- ject to the terms and conditions of this agreement. [Emphasis added.] Its correlative in the 1977- 1980 contract, art XIII-9, provided- While absent from their usual place of work on such trips, bar- gaining unit employees will be subject to the terms and conditions of this Agreement Further, art XIII-8(k) of the 1977 contract stated The Employer and the Guild hereby agree to the following ar- rangements regarding reimbursement for expenses in connection with out-of-town-assignments of bargaining unit employees- (k) For local transportation requirements l At the Washington, D C area office, an intermediate size rented car will be available for each five (5) employees so assigned This includes all Gibbs & Cox Inc, employees Gasoline and parking ex- pense used for travel required for business shall also be reimbursed 2 In New York City, subways and/or buses are to be used Sec XIII-8(k)2 only makes sense if it is read to refer to Arlington em- ployees traveling to New York Is The testimony of Caesar Guazzo , to the effect that the Guild did not intend to bargain on behalf of the Arlington employees, is not cred- ited Guazzo, who formerly was the Guild 's attorney and who participat- ed in the 1977 negotiations, testified that the Guild did not bargain on behalf of the Arlington employees and also that the Guild was never rec- ognized as the bargaining representative of the employees at Hyattsville or Arlington As those latter assertions are contrary to the stipulations in evidence, it is clear to me that Guazzo's recollection leaves a good deal to be desired 14 Pursuant to the collective-bargaining agreement, the Company paid a certain amount of money to cover the premiums for a mjaor medical insurance policy However, when the cost of the premium rose, the agreed-upon contribution by the Company was insufficient and the Union decided to pay the difference from its general revenues which were de- rived from dues and agency fee payments 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1980 many employees at Arlington, who initially had joined the Guild, began to revoke their dues-checkoff au- thorizations.1 5 Supervisory personnel at Arlington were aware of this growing dissatisfaction through discussions with the employees. Also, the Company was aware of the checkoff revocations. During the same period of time, dissatisfaction with Guild representation also began to grow among the em- ployees at the Newport News division. On June 17, 1980, a representation petition, in Case 5-RC-11252, was filed by the Marine Designers Association with Region 5 of the Board wherein it sought an election for the New- port News technical employees. In relation to the representation petition in Case 5- RC-11252, the Petitioner and the Company asserted that the Newport News division constituted a separate appro- priate bargaining unit and therefore an election limited to the employees at that location was proper. The Guild did not appear at a hearing held in that case, although it did express its position by a letter dated June 17, 1980, as follows: Confirming our telephone conversation, please be advised that the Marine Technicians Guild take no formal position in the representation Petition that has been filed with your office. As I indicated to you on the telephone, for ap- proximately the past two or three years the Marine Technicians Guild and Gibbs & Cox have had col- lective bargaining at its Arlington and Newport News, Virginia locations. The collective bargaining arose as a result of an organizational campaign by the Guild and a request by technical employees at the Arlington and Newport News, Virginia loca- tions to become members of and be represented by the Marine Technicians Guild. A demand for recon- gition was made and granted by the company. Dues were withheld from all Virginia employees who ex- ecuted dues checkoff cards and remitted to the Guild for the past two years. Further, the collective bargaining agreement that was extant in New York, was carried over and in full force and effect in the Virginia locations. All parties, the Guild, the company and the employees in Virginia clearly and unambiguously understood that the terms and conditions of employment exist- ing prior to the Newport location opening would be in full force and effect in Newport. Further, it must be pointed out that pursuant to applicable law, both the company and the Guild have notified Federal Mediation and Conciliation Services, New York State Board of Mediation and the Virginia Board of Mediation, advising them of the expiration of the contract and of the fact that the parties intended to negotiate a new contract for all locations. 15 According to Ronald Carlson , the Guild's president, the revocation of a dues-checkoff authorization is equivalent to a resignation from union membership As indicated above, if the NLRB feels that there is not one unit, then the Guild will not oppose an election. As noted above, a hearing was conducted by Region 5 in connection with the aforesaid representation petition. However, to describe that proceeding as an evidentiary hearing would be charitable at best, because the attor- neys for the Company and the Petitioner stated their po- sitions on the record and merely had their respective witnesses testify that they agreed with their attorney's statements.I6 In any event, on August 5, 1980, the Re- gional Director for Region 5 issued a Decision and Di- rection of Election in which he concluded that the New- port News division constituted a separate appropriate unit. Also, by way of dicta, he indicated that the Arling- ton division was a separate unit. In pertinent part, the Regional Director stated: The Employer is engaged in marine design on a contract basis. It began operations in 1929 at its then sole location in New York. In 1946 the Inter- venor was certified by the Board in a unit [ofl tech- nical employees. The Employer and Intervenor have since 1947 enjoyed a collective-bargaining re- lationship, with the most recent contract covering the period August 1977 to August 1980. In late 1978, the Employer opened locations in both Ar- lington and Newport News, Virginia, the latter lo- cation being the subject of the instant petition. The Employer apparently unilaterally applied the terms of the New York contract to all employees at these two new locations including honoring dues check- off requests. In addition, as provided under the then New York unit contract, the Intervenor' s insurance program was applied to those for whom the Em- ployer made monthly remittance, apparently all the employees within the covered classifications for both locations. While there is some testimony in the record that the Intervenor organized these two lo- cations, there is no evidence that these two loca- tions were merged with the New York unit. What- ever arrangement did occur between the Employer and the Intervenor was never reduced to writing. Petitioner and the Employer both contend that a unit limited to Newport News, Virginia is appropri- ate. These parties stipulated to the scope of the unit which includes sixty (60) to eighty (80) employees. The Intervenor, although notified of the instant hearing, failed to make an appearance, claiming that it had insufficient funds. In a letter to the Region, the Intervenor indicated that it would not oppose a finding of the Regional that the Newport News, Virginia location is an appropriate unit. The record supports a finding that the employees of the New- 11 This is stated simply as a fact and not by way of criticism of the way Region 5 conducted the hearing It is obvious from reviewing the transcript of that proceeding that both the Company and the Petitioner were of a single mind to establish the Newport News division as a sepa- rate unit for the purposes of holding an election Also, as the Guild did not appear in that proceeding there was no one present to contest that position or to present contrary evidence GIBBS & COX 965 port News, Virginia, facility constitute an appropri- ate unit inasmuch as said facility is separate and dis- tinct from the other locations in the formulation and implementation of labor relations, it performs its own hiring and firing , and there is no employee interchange. Accordingly , an election is directed in a unit limited to the Employer's employees at New- port News, Virginia, as described in the unit set forth above. Thereafter, a secret-ballot election was held among the Newport News division employees and on September 11, 1980, the Marine Designers Association was certified as the collective-bargaining representative for those em- ployees. In the meantime, the Guild had given notice of its desire to negotiate a new contract , and the first meeting with the Company was held on August 1, 1980. As of that date there were about 193 bargaining unit employees located in New York City and 24 such employees in Ar- lington, Virginia . Of the employees who were employed in Arlington, 13 had never joined the Guild and 5 had revoked their dues-checkoff authorizations and were not paying dues to the Union. Thus, at Arlington, only six unit employees were members of the Guild as of August 1. From the first meeting held on August 1, 1980, the Company asserted that it would not bargain with the Guild on behalf of the employees located in Arlington. On August 25, the Company sent a letter to its New York employees which stated, inter alia: As you are no doubt aware, the Guild's Negotiat- ing Committee and the Company's Committee have been engaged in collective bargaining negotiations for the past several weeks. Unfortunately, the nego- tiations have now come to an impasse with no agreement on the terms of a new contract. This notice will summarize the position of the Company and will explain what we believe to be the major areas of dispute. One of the primary areas of disagreement is over the Guild's insistence that the New York contract cover our Virginia facilities. We have explained to the Guild that we cannot legally agree to such a re- quest. A large majority of the Virginia employees have resigned from the Guild. The Newport News employees petitioned the NLRB for a determination to establish that the Guild does not represent them. The NLRB has determined that the Virginia Divi- sions are separate bargaining units which are enti- tled to their own choice of representation. An NLRB election had been scheduled for Newport News on September 3rd, to determine whether the employees of that Division want to be represented by the Guild, their own association, or no union. Also, on August 25 the Company sent a letter to its Arlington employees as follows: Some of you have expressed confusion as to how the ongoing NLRB proceedings in Newport News and the collective bargaining negotiations in New York affect you. This notice will answer the ques- tions that have been raised. Our attorneys have advised us that the Newport News and Arlington Divisions are each separate bargaining units from the New York unit. The NLRB has agreed with this view and in response to a petition filed by our Newport News employees, has ruled that an election should be held in New- port News to determine whether the Newport News employees want to be represented by the Marine Designer's association, the Guild or neither Union. An election is scheduled for this purpose in Newport News on September 3, 1980. In the meantime collective-bargaining negotia- tions are going on in New York with the Guild. Be- cause the great majority of employees in both the Newport News and Arlington locations have indi- cated they do not want the Guild to represent them, the New York negotiations cover the New York employees only. In the past we have always followed a policy of trying to treat employees the same whether they choose to join a union or not . We intend to contin- ue this practice . Virginia is a right to work State and no employee has to join a union in order to work. We believe in this policy and we sincerely feel that our Virginia employees neither need nor want a Union. We believe that by working together we can work out any problems that we face to our mutual satisfaction. We hope to build a working atmos- phere of cooperation and trust which we believe is essential to the success of our Virginia operations. We are concerned that a Union will impede these efforts and will not be in the best interest of the company or employees. For these reasons, we are asking our Newport News employees to choose "neither Union" when they vote on September 3. At the same time, we are asking our Arlington employees to give us an opportunity to demonstrate that you don't need a union to represent you. It is our intention to pay employees in our non -union fa- cilities wages and benefits which are comparable to those at our union facilities . Employees in our non- union facilities are covered by the salaried employ- ees Major Medical Plan and eligibile for other sala- ried benefits. There is no obligation to pay dues, agency fees or an administrative fee to the Guild or anyone else. If you have a problem that needs atten- tion, you have the present right to directly ap- proach the company to work out a solution that is responsible to your needs. You don't need to pay a third party to do your talking for you. We will respect the right our Arlington employ- ees to choose a bargaining representative if you should later decide that you want one. We sincerely believe, however, that a union has nothing con- structive to offer you. Similarly, on October 15, 1980 , another letter was sent by the Company to its employees which stated the fol- lowing: 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gibbs & Cox Inc. proposes the following im- provements in benefits and modifications to the pre- vious Collective Bargaining Agreement dated August 22, 1977, which expired on August 22, 1980. (a) LANGUAGE MODIFICATIONS (1) Article 1-1. This Agreement shall apply to all regular full time employees at the Gibbs & Cox, Inc. facility located in New York City, employed in the Technical Divisions; Hulls, Machinery, and Electronics, Weapons & Electrical, classified in the "Technical" classification schedule listed in Appen- dix A of this Agreement, except executive , manage- rial, supervisory employees designated by the Em- ployer, contract staff members, employees bor- rowed from other firms, and employees hired for summer work. COMPANY POSITION This clause has been modified to exclude the Washington Division. Our attorneys have advised us that the Washington Division is not represented by the Guild based on the recent NLRB decision, and that the Company does not, therefore , have the right to agree to collective bargaining with the Guild for the Washington Division . The Guild has brought this issue to the NLRB for determination. Should the NLRB direct the Company to negotiate a Collective Bargaining Agreement for the Wash- ington Division, the Company will comply . There- fore, neither the Guild not the Company has com- promised its respective position and the issue should not prevent the conclusion of a Collective Bargain- ing Agreement for the bargaining unit in New York. With respect to the Arlington division employees, on August 25 the Company announced and implemented wage increases and other benefits. This was done during negotiations with the Guild and was carried out consist- ent with the Respondent's assertion that it had no duty to bargain with the Guild on behalf of this group of em- ployees.17 IV. CONCLUDED FINDINGS In my opinion, the initial issue in this case is whether the group of employees located in Arlington, Virginia, constituted a separate unit from the group of employees located in New York City. If the Arlington employees did constitute a separate unit , the next question would then be whether the Company had an objective basis for asserting a good-faith doubt about the Union's continuing majority status among the employees in that unit. Thus, if it is concluded that the Arlington employees constitut- ed a separate and distinct unit and if the Company had a good-faith doubt about the Union's majority status based on objective considerations, the Respondent's withdraw- al of recognition to that unit would be lawful and the complaint must be dismissed.18 On the other hand, if the 17 On October 24, 1980, the Company implemented, with respect to its New York employees, the wage and benefit terms of its last offer to the Guild 18 As a general matter, once a union is lawfully recognized as the rep- resentative of a unit of employees, whether by voluntary recognition or employees at Arlington did not constitute a separate unit, but rather were an integral part of a single unit with the New York employees, the Respondent's withdrawal of recognition concerning them would be unlawful inas- much as this small group's expression of dissatisfaction with the Guild would be insufficient to raise an objec- tively based good-faith doubt about the Union's continu- ing majority support within the entire unit. As will be re- called, as of August 1, 1980, the Arlington group consist- ed of 24 employees whereas the New York group con- sisted of approximately 193 employees. Concerning the question of whether the Arlington em- ployees constituted a separate collective-bargaining unit, it must be remembered that this issue is raised in the con- text of a prior bargaining history. Accordingly, I am not called on to decide if that division could have constitut- ed a separate bargaining unit when it originally was cre- ated in 1976. Thus, although it may be that if the Board had been called on to determine the scope of the bar- gaining unit in 1976 or 1977, it might have decided that the Arlington division constituted a unit separate and apart from the New York unit,19 a contrary result would likely be reached at this time if the subsequent bargaining history establishes that the parties treated that division and the New York employees as a single and unified bar- gaining unit. In this respect, the Board has repeatedly held that it "will not disturb an established bargainig re- lationship unless required to do so by the dictates of the Act or other compelling circumstances. 1120 As previously noted, the Arlington division evolved out of the preexisting Hyattsville field office, which the parties had treated as part of the New York bargaining unit. Thus, although the new office was given divisional status, employed a greater number of employees, and was established to capture additional business, its princi- pal client remained NAVSEC. Also, although it may fairly be said that the work done at Arlington may have differed in some respects from the work done by the Hy- attsville employees, the difference was one of degree, not one of kind, and similar classifications of employees doing similar work were employed at both locations as well as in New York. Moreover, when the Arlington di- vision opened its office, a majority of its employees were transferees from Hyattsville and New York. As noted above, soon after the Arlington office opened, the Company voluntarily recognized the Guild as the bargaining representative of those employees based on a demonstration of majority status through Board certification, there exists a rebutable presumption that the Union continues to enjoy majority support That presumption, however, can be rebutted if the employer can demonstrate that it had objective consider- ations on which to base a good-faith doubt about the Union's continuing majority support National Gypsum Co, 220 NLRB 551 (1975). 19 On the other hand, the Board might have decided that the Arling- ton office was merely a relocation of the Hyattsville office As the Hy- attsville office was admittedly part of the New York bargaining unit, the Board therefore might have concluded that the Arlington division occu- pied the same status. 20 Great Atlantic if Pacific Tea Co, 153 NLRB 1549, 1550 (1965). See also Columbia Broadcasting System, 214 NLRB 637, 642, 643 (1974), Cah- fornia Nevada Gold Tours, 207 NLRB 495 (1973); General Electric Co, 180 NLRB 1094, 1095 (1970), Firestone Tire if Rubber Co., 103 NLRB 1749 (1953) Cf Crown Zellerbach Corp, 246 NLRB 202, 204 (1979). GIBBS & COX cards signed by employees authorizing the Guild to rep- resent them.21 This record also shows that instead of sit- ting down to negotiate a separate agreement for these employees, the parties simply applied all the terms and conditions of the New York collective-bargaining agree- ment to them. Thus, from the outset it is patently obvi- ous that in terms of collective bargaining the Company and the Guild created the Arlington division employees in exactly the same manner as they had treated the Hy- attsville employees; namely, as part of the New York bargaining unit. The evidence regarding the 1977 to 1980 labor agree- ment merely reconfirms the above conclusion as it is clear to me that the intent of the parties, whether ex- pressly stated, was to negotiate a contract in New York that would be, and in fact was, uniformly applied to the New York and Arlington employees. Indeed, it is my opinion that the first and only time that the Company ever expressed the opinion that the units were separate was when it became known that the employees at the Arlington division and the Newport News divsion (the later division having been created during the life of the 1977 to 1980 agreement) might be interested in ousting the Guild as their representative. I therefore conclude that from the time recognition was accorded to the Guild on behalf of the Arlington division employees in September 1976 the intent of the parties, as expressed by their conduct, was and continued to be to include these employees in the overall bargaining unit with the New York employees. Given my conclusion about the intent of the parties, and in view of the existence of a 4-year history of bar- gaining on a multilocation basis, it is my opinion that the only appropriate unit herein is one consisting of the New York and Arlington division employees.22 The cases cited by the Respondent do not convince me that a contrary result is required. In Crown Zellerbach Corp., supra, the facts, which were somewhat complicat- ed, may be summarized as follows. Between 1945 and the mid-1950s the production and maintenance employ- ees at the company's North Portland, Oregon plant had been represented in a separate unit by a local affiliate of the United Food and Commercial Workers International Union. In the mid-1950s, bargaining commenced on a multiplant basis, and from 1972 to 1977 the International and its Local 387 bargained jointly with the employer in a multiplant unit consisting of the North Portland plant and a plant located 970 miles away in Los Angeles, Cali- 21 The Respondent 's assertion that in 1976 some of the Arlington em- ployees were coerced into signing cards for the Guild is rejected In view of the fact that the Company recognized the Guild in 1976 based on a demonstration of majority standing, and as no charge was ever filed within the 10(b) statute of limitations period challenging the recognition, the belated assertion more than 5 years later can have no legal efficacy Hod Carriers (Roman Stone Construction), 153 NLRB 659 fn 3 (1965). 22 As an election was conducted among the employees at the Newport News division, which resulted in the ouster of the Guild as the bargain- ing representative and the certification of the Marine Designers Associa- tion, the bargaining unit represented by the Guild must exclude the em- ployees located at Newport News However, it is my opinion that the Regional Director's Decision and Direction of Election in Case 5-RC- 11252 insofar as it infers that the Arlington division employees also con- stituted a separate bargaining unit is dicta, and therefore is not binding on me 967 fornia. In July 1977, a rival labor organization, the West- ern Pulp and Paper Workers (the Paper Workers) filed a representation petition seeking an election among the production and maintenance employees at the North Portland plant. While the incumbent unions agreed to the appropriateness of the petitioned-for unit, the compa- ny asserted that the only appropriate unit consisted of the North Portland and the Los Angeles plants. At that time, the Regional Director agreed with the company's position based on the past bargaining history. On review, the Board affirmed the Regional Director's findings and an election was ordered in the two-plant unit which was won by the Paper Workers. Subsequently, in March 1979, the previously incumbent International union, along with another of its affiliates, filed a representation petition seeking an election among the employees at the Los Angeles plant. This time, the employer, in agree- ment with the petitioners, asserted that the Los Angeles plant could be severed from the two-plant unit. Howev- er, the Paper Workers, which now was the intervenor, reversed its previous position and argued that the only appropriate unit was the two-plant unit . Once again, the Regional Director held that the two-plant unit was the only appropriate unit. The Board, however, reversed the Regional Director, and although stating that it ordinarily would not disturb an established bargaining relationship, absent compelling circumstances, it ordered an election at the Los Angeles plant. In pertinent part the Board stated: We note that in the prior case, absent the history of bargaining in the multiplant unit, the Board clearly would have found the petitioned-for unit appropri- ate as all other factors relevant to the determination of this issue supported the presumptive appropriate- ness of the single-plant unit. Based on the circumstances present herein, we now find that "compelling circumstances" do exist for disregarding the bargaining history in the multi- plant unit. In so doing, we note that all the parties to the historical bargaining relationship, upon which we based our decision in the earlier case, presently seek to establish a separate unit at the Los Angeles plant. Al- though the Intervenor desired to preserve the inter- grity of the certified unit, we note that the Interve- nor sought to represent only the North Portland employees in the prior case. Furthermore, a ques- tion has been raised at this time whether the em- ployees at the Los Angeles plant continue to sup- port representation by the Intervenor in the two- plant unit. [Emphasis added]. The Respondent also relies heavily on Sears, Roebuck & Co., 253 NLRB 211 (1980). In that case, the petitioner, who was an individual employee, filed a decertification petition, seeking to decertify the union as the represents- - tive of employees at the company's Lincoln Park store. The Regional Director concluded, however, that in 1977 the Company and the Union had agreed to a multistore contract covering Lincoln Park and a store located at 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Highland Park. On review, the Board reversed the Re- gional Director and directed an election at Lincoln Park. In so doing, the Board found that the record did not contain "unmistakable evidence that the parties mutually agreed to extinguish the separateness of the previously recognized or certified unit." In that regard, the Board noted that the 1977 contract did not purport to create a single multistore unit, but rather that the contract itself listed each store as being a separate unit. Accordingly, as distinguished from the present case, the Board concluded in that case that the parties intended to maintain separate units.2 3 The Respondent also contends that a bargaining order issued to the Guild on behalf of the Arlington division employees would be inappropriate because a sizable pro- portion of the employees there are professionals within the meaning of Section 2(12) of the Act. Apparently, the assertion made is that if the Board were to grant such a bargaining order it would thereby "establish" a unit of professional and nonprofessional employees, contrary to the provisions of Section 9(b)(1) of the Act. This conten- tion is rejected. Although the Board will not, because of Section 9(b)(1), initially establish a unit of professional and non- professional employees without the former being given an opportunity to vote on inclusion in such a unit, such combined units are not unlawful per se. In this respect, the Board has not invalidated, as inappropriate, histori- cally established contract units combining both classes of employees when "the unit was voluntarily created by the parties and maintained by them for many years without challenge." Retail Clerks Local 324 (Vincent Drugs No. 3), 144 NLRB 1247, 1254 (1963).24 In the present case it is clear that from the outset the employees at Arlington who were covered by the collec- tive-bargaining agreement included both professional em- ployees (such as engineers and naval architects) as well as nonprofessional technical employees. In fact, it is clear to me that before 1968, and at all times since at least 1972, the collective-bargaining unit has, by mutual con- sent, included both classes of employees. Indeed as noted above, it is concluded that going as far back as 1972, and probably beyond, all "white badge" professional employ- ees who had not been designated by the Company as managerial, supervisory, or executive employees (i.e., "blue badge") have been included in the bargaining unit with the technical employees. I therefore conclude that 23 Similarly distinguishable is Utility Workers Local 11 (Ohio Power), 203 NLRB 230 (1973) In that case the Board held that the union violated Sec 8(b)(3) of the Act by seeking to compel the employer to merge into a single unit several units which had been separately certified or recog- nized. Obviously, as the union was seeking to merge the units, there had been no prior agreement to do so by the parties In my opinion the facts above are substantially different from those in the present case for it is my opinion that from its inception Gibbs & Cox and the Guild intended to incorporate the Arlington employees within the New York unit as had been the case when employees were located at Hyattsville Also distinguishable, in my opinion , are Westinghouse Electric Corp v NLRB, 506 F.2d 668 (4th Cir 1974), and Pilot Freight Carriers, 208 NLRB 853 (1974) Neither of those two cases involved a situation in which the groups of employees were represented as part of a single mul- tilocation unit by virtue of a past bargaining history and agreement of the parties 24 Cf. St. Luke's Hosptial Center, 221 NLRB 1314, 1315 (1976). there has existed a combined professional, nonprofessinal bargaining unit, which has been maintained for many years after having been "voluntarily created by the par- ties." Accordingly, neither I nor the Board is being called on to initially establish a unit contrary to the pro- visions of Section 9(b)(1) of the Act, but only to recog- nize what the parties have established themselves.25 Having concluded that the only appropriate unit herein is one combining the New York and Arlington employees, it necessarily follows that the expressions of dissatisfaction of Guild representation by the much small- er group can hardly give rise to an objectively based good-faith doubt about the Union's presumed continuing majority status. Accordingly, I conclude that when the Respondent withdrew recognition from the Guild, vis-a- vis, the Arlington employees on August 1, 1980, it there- by violated Section 8(a)(1) and (5) of the Act. Similarly, by insisting to impasse that the existing bar- gaining unit exclude the Arlington employees, the Re- spondent also violated Section 8(a)(1) and (5) of the Act.26 Finally, I conclude that when the Respondent, on August 25, 1980, unilaterally granted wage increases and other benefits to its Arlington employees, it further vio- lated Section 8(a)(1) and (5) of the Act. In the latter re- spect these wage increases were granted during a time when negotiations were in progress, and to the extent that it might be argued that an impasse had been reached, that impasse had been created by the unlawful insistence by the Company that any new agreement ex- clude from its coverage the Arlington employees. There- fore, in such circumstances the unilateral granting of benefits by the Company constituted a breach of its bar- gaining obligation to the Guild and a violation of the Act.2 7 V. THE REMEDY Having found that the Respondent has engaged in var- ious unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. In relation to the recommended bargaining order, it is evident from the record that the original unit as set forth in the 1946 certification has been substantially modified by mutual agreement over the years. Based on the record, it appears that the bargaining unit as of August 1, 1980, was as follows: All technical employees (including but not limited to such classifications as draftsmen, senior designers, junior designers, designer aides, learners and ship 25 Notwithstanding my conclusion that the combined unit of profes- sional and nonprofessional employees is appropriate in these circum- stances, that conclusion would not preclude the professional employees of the Company who are part of the two-location unit from filing a peti- tion with the Board, seeking either to decertify the Union as their repre- sentative or seeking separate representation Utah Power & Light Co, 258 NLRB 1059 (1981) 26 NLRB v Borg-Warner Corp, 356 US 342 (1958), National Fresh Fruit & Vegetable Co, 2,27 NLRB 2014 (1977), enfd denied 565 F 2d 1331 (5th Cir 1978), NLRB v Teamsters Local 427, 559 F 2d 1204 (9th Cir 1977) 27 NLRB v Katz, 369 U S 736 (1962), Electri-Flex Co, 570 F 2d 1327 (7th Cir 1978) Cf Continental Nut Co, 195 NLRB 841 (1972) GIBBS & COX arrangement specialists), and all professional em- ployees having white badge status (including, but not limited to naval architects, marine engineers, electrical engineers, electronic engineers, ocean en- gineers, hearing-ventilation-air conditioning (H.V.A.C.) engineers, mechanical engineers, civil engineers, structural engineers, and sedimentolo- gists), employed by Gibbs & Cox Inc. at its New York, New York place of business and at its Arling- ton, Virginia Division, excluding all office clerical employees, managerial and executive employees, guards and supervisors as defined in Section 2(5) of the Act. On the foregoing, and based on the entire record herein, I make the following CONCLUSIONS OF LAW 1. Respondent Gibbs & Cox, Inc. is and has been at all times material herein an employer engaged in commerce wihtin the meaning of Section 2(2), (6), and (7) of the Act. 2. The Marine Technicians Guild is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. The unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(a) of the Act is as set forth in the remedy section of this decision. 4. At all times material herein, the Guild has been the exclusive representative of the employees in the aforesaid unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By withdrawing recognition on August 1, 1980, from the Guild as the bargaining representative of the Respondent's unit employees located in its Arlington di- vision, the Respondent has failed and refused to bargain in good faith in violation of Section 8(a)(1) and (5) of the Act. 6. By bargaining to impasse with the Guild on the con- dition that the Arlington division employees be excluded from the mutually established collective-bargaining unit, the Respondent, since August 1, 1980, has failed and re- fused to bargain in good faith in violation of Section 8(a)(1) and (5) of the Act. 7. By unilaterally granting to its Arlington division employees wage increases and other benefits on August 25, 1980, without first bargaining in good faith, the Re- spondent has violated Section 8(a)(1) and (5) of the Act. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed28 ORDER The Respondent, Gibbs & Cox, Inc., Arlington, Vir- ginia, its officers, agents, successors, and assigns, shall 28 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 969 1. Cease and desist from (a) Withdrawing recognition and refusing to bargain in good faith with the Marine Technicians Guild (the Guild) as the exclusive collective-bargaining representa- tive of its employees located in its Arlington division who are part of the appropriate unit. (b) Bargaining to impasse with the Guild on the condi- tion that the established bargainig unit be modified to ex- clude the Respondent's employees located in its Arling- ton division. (c) Unilaterally granting wage increases or other bene- fits to its employees without first bargaining in good faith with the Guild, provided that nothing contained herein shall require the Respondent to rescind any wage increase or benefit which it has previously granted. (d) In any like or related manner refusing to bargain in good faith with the Guild or interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain in good faith with the Guild as the exclusive bargaining representative of the employees in the appropriate unit set forth below, with respect to wages, rates of pay, hours of employment, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed, written agreement. The appropriate unit is: All technical employees (including but not limited to such classifications as draftsmen, senior designers, junior designers, designer aides, learners and ship arrangement specialists), and all professional em- ployees having white badge status (including but not limited to naval architects, marine engineers, electrical engineers, electronic engineers, ocean en- gineers, hearing-ventilation-air conditioning (H.V.A.C.) engineers, mechanical engineers, civil engineers, structural engineers and sedimentolo- gists), employed by Gibbs & Cox Inc. at its New York, New York place of business and at its Arling- ton, Virginia Division; excluding all office clerical employees, managerial and executive employees, guards and supervisors as defined in Section 2(5) of the Act. (b) Post at its New York City and Arlington, Virginia facilities copies of the attached notice marked "Appen- dix."29 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- 29 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al 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 " 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tomarily posted. Reasonable steps shall be taken by the (c) Notify the Regional Director in writing within 20 Respondent to ensure that the notices are not altered, de- days from the date of this Order what steps the Re- faced, or covered by any other material. spondent has taken to comply.