Hanford Atomic Metal Trades Council, Afl-Cio

418 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Hanford Atomic Metal Trades Council, AFL-CIO and Rockwell International Corporation Case 19-CB-5601 October 24 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On February 24 1987 Administrative Law Judge Richard D Taplitz issued the attached deci lion The General Counsel filed exceptions and a supporting memorandum The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and supporting memorandum and has decided to affirm the judge s rulings findings and conclusions and to adopt the recommended Order ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis missed James C Sand Esq for the General Counsel David E Williams Esq (Critchlow & Williams) of Rich land Washington for the Respondent Robert S Gruhn Esq of Richland Washington for the Charging Party DECISION STATEMENT OF THE CASE RICHARD D TAPLITZ Administrative Law Judge This case was tried in Kennewick Washington on De cember 4 1986 The complaint dated September 24 1986 which was based on a charge filed by Rockwell International Corporation (Rockwell) on September 4 1985 alleges that Hanford Atomic Metal Trades Court cil AFL-CIO (HAMTC or the Union) violated Section 8(b)(3) of the National Labor Relations Act Issue The primary issue is whether HAMTC refused to meet its bargaining obligation with Rockwell under Section 8(d) and (b)(3) of the Act by demanding arbitration on a grievance relating to work assignments and by counter claiming to compel arbitration of that grievance in a case before the United States District Court for the Eastern District of Washington The General Counsel argues that the grievance was clearly not meritorious and that HAMTC s actions to obtain arbitration constituted an at tempt to force a midterm modification of the collective bargaining agreement without Rockwell s consent HAMTC argues that there is a legitimate contract inter pretation question which should be resolved by arbitra tion All parties were given full opportunity to participate to introduce relevant evidence to examine and cross ex amine witnesses to argue orally and to file briefs The Geneial Counsel filed a brief HAMTC filed an answer ing brief and the General Counsel filed a reply brief All have been carefully considered On the entire record of the case and from my observa tion of the witnesses and their demeanor I make the fol lowing FINDINGS OF FACT I JURISDICTION Rockwell a Delaware corporation with an office and place of business in Richland Washington manages the Hanford nuclear reservation (Hanford plant) for the United States Department of Energy (DOE) During the year immediately preceding issuance of complaint Rock well sold and shipped goods or provided services from its facilities in Washington to the U S Government of a value in excess of $50 000 During the same period of time Respondent purchased and caused to be transferred and delivered to its facilities in Washington goods and services valued in excess of $50 000 directly from sources outside Washington or from suppliers within Washington which in turn obtained such goods and materials directly from outside Washington Rockwell is an employer en gaged in commerce within the meaning of Section 2(6) and (7) of the Act HAMTC is a labor organization within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A The Sequence of Events 1 Background The DOE operates the Hanford facility through five contractors one of whom is Rockwell i The labor rela tions for those contractors is handled on a three level basis The contractors as a group negotiate with HAMTC over common concerns Each contractor nego tiates separately with HAMTC over concerns individual to that contractor Each contractor also engages in schedule A negotiations with each independent affili ate local of HAMTC and the various seniority groups within that local HAMTC bargains for 15 unions that represent production and maintenance employees of the Hanford facility contractors The end product of negotia tions is a separate collective bargaining agreement that each contractor has with HAMTC That agreement con tarns a schedule A appendix The complaint alleges the answer admits and I find that HAMTC is the lawful ly designated exclusive bargaining representative of Rockwell s employees that Rockwell has recognized HAMTC as such and that recognition has been em 1 The other contractors are United Nuclear Industries Westinghouse Boeing and Batelle Northwest Laboratories 291 NLRB No 73 HANFORD ATOMIC METAL TRADES COUNCIL (ROCKWELL INTERNATIONAL) bodied in successive collective bargaining agreements the most recent of which relevant here was effective by its terms from April 1 1983 to March 31 1986 2 Rockwell s as well as the other contractors basic function is to operate the Hanford facility At times however an existing structure is contaminated by radi ation Such a structure has to be either mothballed or decontaminated and decommissioned The decontaminat ing and decommissioning involve the isolation of that particular facility and the tearing apart and disposing of the electrical equipment piping and other elements of the facility by burial or other means Sometime in the late or mid 1970s DOE contracted with United Nuclear Corporation another contractor at the facility to decon taminate and decommission or in other words demolish a structure at the Hanford facility That was a pilot project and the same crafts that put in the sheetmetal piping electrical work and other equipment were used to remove that equipment Thus the heating and air con ditioning ducts were taken out by the sheetmetal work ers the piping by the pipefitters the electrical work by the electricians etc Before the incidents which are set forth in detail below Rockwell had never done any decontamination and decommissioning work at the Hanford facility How ever Rockwell did have a classification known as nucle ar process operator (NPO) which came within the juris diction of the Oil Chemical and Atomic Workers Inter national Union (OCAW) one of the constituent parts of HAMTC There were about 20 employees in that crew and part o° their work was to decontaminate and dispose of tools and materials that were contaminated within the operating facilities as distinguished from dismantling a facility That was referred to as a D & D classification as was a new D & D classification which is discussed later The old D &D classification is referred to here as D & D (operating facility) The new classification is re ferred to as the D & D (facility removal) or simply as D & D 2 The origin of the D & D (facility removal) classification In 1981 DOE decided to dismantle a facility that had been shut down DOE approached Rockwell who had never previously performed such work about doing the job DOE expressed the concern based on its prior expe rience that the cost of doing such work with craft em plyoees was too high DOE suggested that Rockwell ap proach HAMTC and try to negotiate a new classification for laborer sledgehammer mechanic work which I have referred to as D & D (facility removal) work DOE made it clear to Rockwell that if the new rate could not be negotiated Rockwell and the crafts represented by HAMTC would be out of the picture and that the work 2 The bargaining unit is All production and maintenance employees employed by Rockwell at Hanford in job classifications represented by the various constitu ent local union members of HAMTC as more fully set forth in the parties most recent collective bargaining agreement excluding su pervisors and guards as defined in the Act office clerical employees professional employees and all other employees not contractually covered 419 would be given to an outside contractor who employed laborers In late 1981 Michael P Jimerson who was then man ager of employee relations for Rockwell at the Hanford facility repeated to Peter J Todish president of HAMTC 3 what Rockwell had been told by DOE Ji merson asked Todish whether HAMTC would be inter ested in obtaining the D & D (facility removal) work so that it would not be given to an outside contractor Todish replied that HAMTC would like to have that work In August 1982 DOE informed Rockwell about the funds available for the D & D (facility removal) work and once again discussed the negotiation of the new wage rate 3 The negotiations for a new wage rate In the summer or fall of 1982 Jimerson who was by then manager of personnel services together with Ernest B Casillas who was manager of employee relations met with HAMTC President Todish to begin negotiations Ji merson told Todish that Rockwell needed employees to shovel debris into a dumpster and tear out wiring He said that it was not necessary for an employee to go through 4 years of apprenticeship school to learn how to pick up a hacksaw saw a pipe in two and throw it into a dumpster for burial Jimerson also said that the em ployees had to do anything and everything within an iso lated facility to decontaminate and dispose of contami nated material Todish replied that decontamination and decomissioning work was within OCAW s jurisdiction Jimerson said that OCAW would be brought into the talks A second meeting was attended by Jimerson and Casil las for Rockwell by Todish for HAMTC and by James Watts a business agent for OCAW At that meeting as well as at 15 or 20 meetings that followed two major issues were discussed 4 One involved a new wage rate for the D & D (facility removal) classification That was new work for Rockwell and it crossed craft lines Rockwell s position was that the crafts would continue their traditional work regarding isolating buildings that were to be dismantled but that the new D & D (facility removal) classification employees would break up and remove the materials within the building Thus the elec tricians would cut off the electric power to the building the plumbers would cut off the piping and the other crafts would do anything necessary to isolate the build ing from the outside world Employees in the new classi fication would do the sledgehammer and removal work inside the building The second point of discussion was geared to the relation between the D & D (facility removal) classification and the existing D & D (operat ing facility) classification which was part of the 004 se niority group under OCAW s jurisdiction As noted above those employees had traditionally decontaminated and disposed of materials incidental to the actual oper 3 The complaint alleges the answer admits and I find that Todish was president and an agent of HAMTC 4 Todish attended at least some of those meetings 420 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ation of a facility as distinguished from the dismantling of the facility Rockwell expressed its concern that the D & D (facility removal) workers would not be fully employed because no one knew whether DOE would fund Rockwell to do the new work on a continuing basis Rockwell proposed that the new D & D (facility removal) workers do part of the work that was then as signed to the old D & D (operating facility) crews so that the new employees would have a continuous flow of work Under that proposal OCAW would be giving some of the work performed by its D & D (operating facility) employees to lower paid employees in the D & D (facility removal) group 5 By December 15 1982 the negotiations had led to a written agreement between Rockwell and HAMTC 6 The agreement was signed by Todish and Casillas and was subject to a condition which was set forth in a sepa rate agreement dated and signed December 14 1982 as follows It is understood that the attached agreement is not valid until the work given up by the Nuclear Proc ess Operator Classification is specifically agreed to and ratified by Seniority Group 004 s Appendix A Committee The attached agreement on which Todish signed his concurrence on December 15 1982 stated JOB DESCRIPTION-DECONTAMINATION/ DECOMMISSION WORKER During the past couple of months Company and Union representatives have been discussing the pos sibility of the establishment of a classification whose primary responsibilities would be decommissioning of a variety of property facility structure equip ment or systems As a result of a recent meeting which included P J Todish President Hanford Atomic Metal Trades Council J L Watts Busi ness Agent OCAW Jerry Cline Chief Steward 5 These findings are based on the credible testimony of Jimerson and Casillas Todish testified that he attended some of the meetings that Watts conducted the meetings because they were part of his Appendix A negotiations that the matters discussed involved moving work from one seniority group within the OCAW jurisdiction to another potential as monty group within the same jurisdiction and that the discussions in volved the OCAW alone On cross-examination he testified that under Rockwell s proposal the new D & D workers were to receive two types of work one of which was the demolishing of buildings and the other was work that had previously been done by the OCAW nuclear process operators I am unable to credit Todish s testimony to the effect that the negotiations related only to matters affecting OCAW In the context of the overall discussions the testimony of Jtmerson and Casillas to the effect that Todish was negotiating on behalf of all the crafts represented by HAMTC was fully credible The new work affected a multitude of crafts The OCAW had a special interest because the new work would overlap with work that employees they represented already did for Rockwell and in effect the OCAW would be giving up some of the higher paid work to lower paid workers 6 During the course of negotiations Rockwell formalized the talks by a letter dated November 11 1982 to Todtsh stating that Rockwell desired to meet with HAMTC and the business representatives of seniority group 004 for the purpose of discussing the particulars of a new classification The letter went on to state that Rockwell was in a position to obtain new work which might otherwise be performed by other than plant forces and that it wished to respond to that opportunity for the work M P Jimerson B K Watkins and E B Casillas the Company proposes the establishment of a new classification as follows Job Title Decontamination/Decommission Worker Job Description Perform any and all work re quired to stabilize decontaminate disassemble and/or package items identified for stabilization de contamination and/or decommissioning including any property facility structure equipment or system such as piping machine electrical ventila tion or others Must be able to use a variety of sup plies tools and equipment in the decontamination disassembly or packaging process The agreement went on to state that the classification would be part of seniority group 004 that employees within the D & D worker classification could request a transfer to the nuclear trainee classification at their cur rent rate of pay that D & D work that was currently assigned to seniority group 004 would be assigned to the new lower level classification that seniority group 004 employees currently assigned to the D & D work group could voluntarily transfer to other seniority group 004 openings of their choice until December 31 1985 that those remaining in the group on December 31 1985 would be transferred to other seniority group 004 work and that The parties agree that the intent of this new classification is not to eliminate decontamination work now performed by NO s and NPO s in operating facili ties It also stated that the proposal was applicable only to establishing the decontamination/decommission worker classification and did not set a precedent regard ing the opening of the contract on any other appendix A matters Further meetings took place between December 14 1982 and January 24 1983 which led to the agreement of OCAW and seniority group 004 s appendix A commit tee to the December 15 1982 agreement between Rock well and HAMTC OCAW Business Agent Watts and Chief Steward Jerry Cline signed the December 15 1982 agreement and Watts as president of OCAW Local 1 369 signed a letter dated January 24 1983 which was directed to Todish Todish in turn sent that letter to Rockwell Watts letter stated in part that In appendix A meetings conducted between Rockwell and seniority group 004 seniority group 004 has agreed to turn over the following job assignments currently being performed by Nuclear Process Operators to the seniority group 004 D & D classification The letter went on to specify nine specific types of work that were then being per formed by nuclear process operators which were to be assigned to the D & D worker classification They ranged from Radiation zone work (Stabilization work) to T P plant decontamination (T P plant Canyon and low level plutonium decontamination building 2706 T) The letter stated that the agreement was officially rati fled by 004 s appendix A committee in line with the De cember 14 agreement between Rockwell and HAMTC The letter also stated HANFORD ATOMIC METAL TRADES COUNCIL (ROCKWELL INTERNATIONAL) It is further agreed that in the administration of the above it is not the intent of Seniority Group 004 nor Rockwell Hanford Operations to encroach on any of the Councils jurisdictional arrangements with any of its affiliates When Jimerson saw Watts January 24 1983 letter he was unsure what was meant by the paragraph relating to the encroachment on any of the Councils jurisdictional arrangements with any of its affiliates He asked Todish what it meant and Todish replied that he put that clause in to satisfy the crafts that the new D & D workers were not going to be doing the work of isolating the building On January 25 1983 Casillas wrote to Todish saying that Rockwell concurred with the items contained in Watts letter Rockwell reported to DOE that it had reached an agreement with the unions Rockwell began hiring em ployees in the new classification in January and February 1983 Casillas was the spokesman for Rockwell in the negoti ations that Rockwell had with HAMTC for the 1983- 1986 contract He was also Rockwell s representative at the negotiations at the appendix A level where Rockwell met with about 47 seniority groups and the affiliates of HAMTC There were over 200 meetings During those appendix A meetings the new D & D worker classifica tion was discussed with a number of the crafts Casillas assured them that the new body of work being incorpo rated into the D & D worker classification was not going to take away any of the maintenance and operation work from them that they had previously done In the negotia tions with the pipefitters the pipefitters said that they had put the piping in and they wanted to take it down but Rockwell did not agree to that proposal The mill wrights proposed that they take apart the glove boxes and again Rockwell would not agree Other crafts made similar proposals and the answer was the same Rockwell did not agree to any modification of the 1982 contract with HAMTC on the scope of the D & D work or the practices regarding that work Rockwell and HAMTC entered, into the 1983-1986 contract which was effective by its terms from April 1 1983 through March 31 1986 Article V(1) of that agreement provides that in the assignment of work the Company shall recognize the established seniority groups the job definitions hereinafter mentioned and ju nsdictional settlements effected by the Council in ac cordance with its established procedure Disputes regarding such assignments are subject to the grievance procedure but the work shall be carried on as assigned pending the settlement Article V(2) provides that juris dictional disputes and craft boundaries are to be settled by HAMTC and that the Company is not to undertake the settlement of such matters In a section of the contract entitled Job Definitions (listed according to seniority group) the work of senion ty group 4 employees is detailed In addition to a nuclear process operator nuclear operator and operator trainee there is a designation for decontamination/decommis sion worker The wording of that section is identical to 421 that which is set forth as the job description in the De cember 14-15 1982 agreement between Rockwell and HAMTC In effect the 1983-1986 contract incorporated the prior agreement As noted above the job description for the D & D worker included the stabilization decontamination and/or decommissioning of facilities In contrast the job description for Plumber Steamfitter Journeyman set forth under Seniority Group 24 does not have any Ian guage relating to the dismantling of a facility That job description refers to the installation and maintenance of a facility s piping system and uses language such as instal lation maintenance fabrication layout and repair work on all piping systems The job descriptions of other crafts have similar wording The contract contains a zipper clause stating that the agreement is intended to be in full settlement of all issues which were the subject of collective bargaining preceding the execution of the agreement The 1983-1986 contract also contains a multistep grievance procedure culminating in binding arbitration Articles XVIII and XIX of the contract provide that a grievance that is unresolved in the earlier steps of the grievance procedure may be referred to binding arbitra tion if inter alia it involves The interpretation or appli cation of a provision of this Agreement The contract also provides that the arbitrator shall have no authority to establish or modify any job classification and that he or she shall have no power to add to subtract from or modify any of the terms of this Agreement 4 The initial grievances On May 25 1984 Lloyd J Petty a steward for the Pipefitters Union filed a grievance (the Petty grievance) against Rockwell s assignment of certain work It is that grievance that led to HAMTC s demand for arbitration and HAMTC s counterclaim in the district court to compel arbitration 7 However even before that griev ance was filed and before the 1983-1986 contract was ratified constituent members of HAMTC manifested their discontent with the assignment of the D & D (fa cility removal) work by the filing of grievances The first such grievance was filed by the electricians on March 18 1983 It alleged that the D & D crew re moved wiring and light fixtures from certain buildings when electricians should have been assigned the work of dismantling all wiring Rockwell s labor relations special ist Billie K Watkins met with the electricians shop steward Bob Swanson and the grievance was resolved The Company agreed to have an electrician check the work but insisted that electricians were not to have any thing to do with the decontaminating and decommission ing work which involved the tearing out of the light fix tures and conduits No further action was taken on the grievance On March 31 1983 Todish on behalf of HAMTC sent two letters to Rockwell The first stated that the jurisdic ° The General Counsel does not contend that the filing of the gnev ance was in itself a violation of the Act it is the General Counsel s con tention that HAMTC s demand for and attempt to compel arbitration was the violation 422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tional committee of HAMTC had decided that disman ding of all pipe work fell under the jurisdiction of the pipefitters The second stated that a jurisdictional agree ment existed between OCAW and the asbestos workers which provided that in situations where contamination existed the asbestos workers would cut and remove tnsu lation from pipes while the chemical workers would box and dispose of the material The letter went on to re quest Rockwell to comply with that agreement By letter to HAMTC dated April 7 1983 the carpen ters complained that Rockwell was not honoring current jurisdictional agreements between the Carpenters and OCAW regarding the assignment of decontamination and decommissioning work HAMTC referred that letter to Rockwell on April 11 1983 Casillas replied to those letters in a letter to Todish dated April 12 1983 He reminded Todish of the agree ment that Rockwell had with HAMTC and its affiliate OCAW concerning decontaminating and decommission mg work and he stated that HAMTC s letter implied that it was attempting to unilaterally change that agree ment Todish responded in a letter to Jimerson dated April 14 1983 He stated that they should let the Ian guage of the agreement speak for itself In a grievance dated April 18 1983 the pipefitters fol lowed up on their previous contention that they were en titled to the work of dismantling all pipe The grievance stated that This work is and always has been the work of the Pipefitters and we protest this work being as signed to D & D Worker (Local 1 369) On June 3 1983 Rockwell s labor relations specialist Watkins at tended a step 2 grievance meeting at which he took the same position he had previously The grievance did not go any further The Carpenters came back into the picture with a grievance dated August 25 1983 The grievance stated that Rockwell violated the contract by assigning to de contamination and decommission workers certain work reserved to Carpenters and Millwrights pursuant to an agreement dated June 22 1978 That grievance went through the grievance procedure and the Carpenters de manded arbitration Rockwell took the position that HAMTC was the collective bargaining agent and that any demand for arbitration had to come from HAMTC rather than the Carpenters By letter dated October 28 1983 HAMTC through Todish demanded arbitration Thereafter a motion to compel arbitration was filed in the name of HAMTC in the Superior Court of Washing ton A good deal of legal skirmishing followed which re suited in the case being transferred to the United States District Court for the Eastern District of Washington For reasons that are unexplained on the record Todish filed an affidavit in that proceeding stating that HAMTC was not a party to the litigation that HAMTC had never authorized the Carpenters to participate in or otherwise initiate litigation against Rockwell in HAMTC s name and that the Carpenters attorney had usurped HAMTC s name in those proceedings without proper authority The affidavit went on to state that insofar as the Carpenters were authorized to request arbitration that authority was rescinded by vote of HAMTC on March 28 1984 In the affidavit Todish stated With respect to the allocation of decontaminating and decommissioning work to Oil Chemical and Atomic Workers International Union Local 1 369 Rockwell ham observed and is continuing to observe its contractual obligations under the Collective Bar gaining Agreement signed by it and HAMTC The district court dismissed the proceedings for lack of a necessary party One more grievance may be discussed briefly That was a grievance filed by the Operating Engineers on Oc tober 30 1984 (the Gile grievance) It involved the ques tion of whether a new machine should be operated by the operating engineers or the D & D workers The ma chine known as a minimax was operated by remote con trol and could be used as a jackhammer a backhoe or a high pressure hose The equipment did not exist during the negotiations for the D & D (facility removal) worker classification A real question could legitimately be raised about whether the operation of that machine in its various functions should be performed by relatively unskilled laborer sledgehammer mechanic workers who were within the D & D (facility removal) classification or by highly skilled operating engineers It was never in tended that highly skilled machine operator work be done by the laborers in the D & D (facility removal) classification The grievance worked its way through the grievance procedure and it was resolved in arbitration The arbitrator ruled that it was not proven that the par ties intended to establish an exclusive jurisdiction which would apply to the operation of that machine when they developed the D & D worker definition That arbitra tion has little bearing on our problem in this case 5 The Petty grievance On May 25 1984 Pipefitters Steward Lloyd Petty grieved about the continuous misassignment of work being performed on Rockwell Hanford project by the D & D workers The grievance stated that the Pipefit ters had not given up that work that pipe and materials were being removed from a particular building and that there were qualified pipefitters who had job applications on file Rockwell s manager of employee relations Casil las discussed the grievance with Petty Because of some confusion regarding the removal of stainless steel tanks and work being done by employees of contractors other than Rockwell the processing of the grievance was de layed The grievance was not resolved at the lower stages of the grievance procedure The Company consist ently took the position that it had made a proper job as signment based on the agreement that had been reached regarding D & D worker classification HAMTC con tinually took the position that decontaminating and de commissioning work involving piping should be assigned to the pipefitters rather than the D & D workers 8 By letter dated October 15 1984 Todish as president of HAMTC told Respondent that HAMTC desired to proceed to arbitration on the Petty grievance On Octo 8 At the trial counsel for HAMTC stated that the Pipefitters have his torically cut up pipe that has been scrapped on the Hanford project and that they continued to claim that work HANFORD ATOMIC METAL TRADES COUNCIL (ROCKWELL INTERNATIONAL) 423 her 31 1984 Rockwell responded by saying that the issue was not a gnevable one that the D & D worker classification was established through negotiations and that it would be a violation of the negotiated agreement for HAMTC to entertain or support the grievance The letter went on to state that under the contract no gnev ance was to proceed to arbitration without the grievance being reviewed at an appeal step hearing Thereafter there was an appeal step hearing which did not resolve the matter By letter dated July 31 1985 HAMTC s at torney informed Rockwell that HAMTC was proceeding to arbitration The letter asked whether Rockwell was prepared to refer the matter to arbitration or whether a court order would be required Rockwell did not agree to arbitration and instead filed a complaint for declaratory injunctive relief in the United States District Court for the Eastern District of Washington which sought to enjoin HAMTC from seek ing arbitration of the Petty grievance On September 17 1985 HAMTC answered the complaint and by way of counterclaim sought an order directing Rockwell to pro ceed to arbitration Rockwell filed a Motion for Summa ry Judgment By letter dated January 29 1987 District Court Judge Robert J McNichols advised the parties as follows 9 I have concluded that Rockwell s Motion for Sum mary Judgment should be granted I will prepare a detailed Memorandum and Order when time per mits B Analysis and Conclusions The gravamen of the General Counsels case is set forth in paragraph 13 of the complaint which reads By pressing its grievance to arbitration and suing to compel arbitration thereon Respondent is taking a position without reasonable basis the successful accomplishment of which would result in a mid term modification to its negotiated agreement with out Rockwell s consent such that its action is frivo lous and baseless designed to bring economic pres sure upon Rockwell through the costs of legal de fense to improperly modify the parties freely reached agreement during its life and thus has an illegal objective and constitutes a refusal to bargain with Rockwell on this issue In his excellent brief counsel for the General Counsel has pointed out a number of cases where the Board and the courts have held that attempts to secure arbitral or judicial decisions in themselves violate the Act where the basis for the claim is frivolous and the object of the claimant is unlawful In Clyde Taylor Co 127 NLRB 103 109 (1960) the Board refused to find a violation of Section 8(a)(1) of the Act when an employer sought a state court injunction to ban peaceful picketing The Board held 9 The General Counsel s request that I take judicial notice of the dis tnct court s action is granted I have annexed the General Counsel s and Judge McNichols letters to the General Counsel s exhibits as G C Exh 14 The Board should accommodate its enforcement of the Act to the right of all persons to litigate their claims in court rather than condemn the exercise of such right as an unfair labor practice Although Clyde Taylor is still the underlying law the Board has fashioned a number of exceptions Those ex ceptions belong to three general categories The first in volved cases where the Board found it necessary to pro tect access to its own processes Thus in Power Systems 239 NLRB 445 449-450 (1978) enf denied 601 F 2d 936 (7th Cir 1979) the Board found that an employer violat ed Section 8(a)(4) of the Act when he filed a civil suit in an attempt to penalize the charging party in an unfair labor practice case and to prevent the filing of future charges The second category of cases were the ones where the Board sought to preserve the integrity of its bargaining unit determinations The scope of a bargaining unit is the subject over which the legislature has given the Board extensive powers under Section 9 of the Act In Service Employees Local 32B 32J (Allied Maintenance) 258 NLRB 430 fn 3 (1981) the Board ordered a union to withdraw an arbitration proceeding dealing with a unit determination and noted that it would have been futile to deal with that issue because the Board had already de cided it In a similar vein in Chicago Truck Drivers (Signal Delivery) 279 NLRB 904 (1986) the Board found that a union violated Section 8(b)(3) of the Act by insist ing on the arbitration of a grievance that sought to merge three separate bargaining units The third category of cases dealt with situations where the claimant sought to compel an act which was directly and in itself unlawful In Service Employees Local 680 (Stanford University) 232 NLRB 326 331 (1977) enfd 601 F 2d 980 (9th Cir 1979) the Board found that the filing of a lawsuit to unlawfully compel employees to become union members was a violation of Section 8(b)(1)(A) of the Act In Television Wisconsin 224 NLRB 722 fn 2 (1976) the Board held that a union s action in filing a suit to enforce an unlawful union security clause was a violation of Section 8(b)(1)(A) In Carpenters (Skippy Enterprises) 218 NLRB 1063 (1975) enfd 532 F 2d 47 (7th Cir 1976) the Board held that a union s court action to collect a fine that had been unlawfully imposed on a supervisor was a violation of Section 8(b)(1)(B) of the Act In Masters Mates & Pilots (Cove Tankers) 224 NLRB 1626 fn 2 (1976) enfd 575 F 2d 896 (D C Cir 1978) the Board held that a civil suit in support of picketing that violated Section 8(b)(4)(i) and (ii)(B) of the Act was in itself a violation of the Act Where the question of contract interpretation is in volved however the law is not that clear In Retail Clerks Local 770 (Hughes Markets) 218 NLRB 680 (1975) the Board refused to defer to an arbitration award The Board found that a contract as interpreted by the arbitrator would have violated Section 8(e) of the Act and that the award was repugnant to the purposes of the Act Even in those circumstances however the Board refused to find that the union s conduct in resort ing the courts to confirm the arbitrators award was a violation of the Act holding at 683 424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In United Aircraft Corporation (Pratt and Whitney Division) 192 NLRB 382 384 (1971) the Board stated In the Clyde Taylor case the Board held that while the making of a threat by an employer to resort to the civil courts as a tactic calculated to restrain employees in the exercise of rights guar anteed by the Act was a violation of Section 8(a)(1) an actual suit was not similarly unlawful In justification of the latter position the Board majority reasoned that the Board should accom modate its enforcement of the Act to the right of all persons to litigate their claims in court rather than condemn the exercise of such right as an unfair labor practice Since the Taylor case the Board has consistently held that the filing of a civil suit cannot be found to be an unfair labor practice [Citations omitted] Relying on this case we conclude that Respond ent s conduct in resorting to the courts to confirm the arbitrators award was done in good faith to en force a colorable contract right and was not the kind of tactic calculated to restrain employees or employers in the exercise of rights guaranteed by the Act Accordingly we shall dismiss the 8(b)(4)(n)(A) and 8(b)(1)(A) allegations of the com plaint All the above cited Board law must now be read in the context of the Supreme Court s decision in Bill John sons Restaurants v NLRB 461 U S 731 748-749 (1983) where the Court summarized its holding as follows To summarize we hold that the Board may not halt the prosecution of a state court lawsuit regard less of the plaintiff's motive unless the suit lacks a reasonable basis in fact or law Retaliatory motive and lack of reasonable basis are both essential pre requisites to the issuance of a cease and desist order against a state suit The Board s reasonable basis in query must be structured in a manner that will pre serve the state plaintiff's right to have a state court jury or judge resolve genuine material factual or state law legal disputes pertaining to the lawsuit Therefore if the Board is called upon to determine whether a suit is unlawful prior to the time that the state court renders final judgment and if the state plaintiff can show that such genuine material factual or legal issues exist the Board must await the re suits of the state court adjudication with respect to the merits of the state suit If the state proceedings result in a judgment adverse to the plaintiff the Board may then consider the matter further and if it is found that the lawsuit was filed with retaliatory intent the Board may find a violation and order ap propriate relief In short then although it is an unfair labor practice to prosecute an unmeritorious lawsuit for a retaliatory purpose the offense is not enjoinable unless the suit lacks a reasonable basis In footnote 5 of that decision the Court states that the case before it involved an employers lawsuit that the Federal law would not have barred except for its alleged retaliatory motivation The Court distinguished that situ ation from one in which the claimants objective was ille gal under Federal law such as those for the enforcement of fines that could not be lawfully imposed under the Act In the instant case the complaint alleges that HAMTC violated the Act by attempting to require arbitration of its claim that Rockwell violated the contract when it made certain work assignments The proper forum for determining the arbitrability of a grievance is the Court AT&T Technologies v Communications Workers 475 US 643 649 (1986) If the Court finds that a grievance is ar bitrable then the merits of the grievance are to be deter mined by the arbitrator As the Court held in that case The third principle derived from our prior cases is that in deciding whether the parties have agreed to submit a particular grievance to arbitration a court is not to rule on the potential merits of the underlying claims Whether arguable or not indeed even if it appears to the court to be frivo lous the union s claim that the employer has violat ed the collective bargaining agreement is to be de cided not by the court asked to order arbitration but as the paties have agreed by the arbitrator The courts therefore have no business weighing the merits of the grievance considering whether there is equity in a particular claim or determining whether there is particular language in the written instrument which will support the claim The agree ment is to submit all grievances to arbitration not merely those which the court will deem meritori ous American Mfg Co 363 U S at 568 (footnote omitted) Here District Court Judge Robert J McNichols has concluded that Rockwell s Motion for Summary Judg ment should be granted Implicit in that finding is that HAMTC s grievance is not arbitrable and that HAMTC is to be enjoined from proceeding to arbitration Unless Judge McNichols reconsiders his determination or his decision is reversed by the Ninth Circuit Court of Ap peals an arbitrator will never resolve the merits of HAMTC s grievance However the General Counsel in effect asks me to weigh the merits of that grievance to determine that the grievance is frivolous and to hold that HAMTC s attempts to secure arbitration of its frivolous claim was tantamount to an unlawful attempt to modify the contract in midterm Although I have set forth the background facts in some detail in order to put the case in context I am not prepared to make any evaluation of HAMTC s grievance The case law discussed above has to my knowledge never been applied to a situation simi lar to that in the instant case The general principles of law cited by the General Counsel do not require an ex tension of the law to cover this case and I believe that such an extension would lead to results that would tend to undermine Federal labor policy We are dealing here with the legality of an attempt to obtain arbitration in a HANFORD ATOMIC METAL TRADES COUNCIL (ROCKWELL INTERNATIONAL) 425 situation where there is a broad arbitration clause in a collective bargaining agreement and a long term stable relationship between the parties In general a grievance procedure which includes arbitration is designed to re solve disputes whether those disputes involve frivolous or substantial claims A frivolous claim can lead to labor disputes disrupting commerce just as much as a substan tial one Resolution of all disputes by a consensual griev ance procedure is certainly more desirable than a strike or a lockout A grievance procedure is a safety valve for industrial unrest The loser of a claim in a grievance pro cedure will often feel that the winning party presented a frivolous case that the contract was misinterpreted and that the misinterpretation amounted to nothing more than a change of the contract terms If the General Counsels position is followed in this case the Board would be opening a Pandora s box Instead of allowing the court to decide whether a grievance was arbitrable and the arbitrator to decide contract interpretation issues the Board would have to decide whether the position of one side or the other was so frivolous as to involve a se nous misinterpretation of the contract and whether the contract would be changed in midterm if that frivolous interpretation were sustained by an arbitrator Under that theory almost all attempts to secure arbitration under a grievance procedure could be subject to the Board s scrutiny As indicated in the above quoted portion of AT&T Technologies v Communications Workers supra the Su preme Court has instructed the lower courts to refrain from evaluating whether a grievance is frivolous in de ciding whether it is arbitrable That is so even though a frivolous grievance carried to arbitration can lead to a de facto midterm modification Implicit in that decision is a recognition of the key role that grievance arbitration procedures play in the overall picture of labor relations I believe the same considerations that led to the high court s decision in that case are applicable here Before the alleged unlawful objective (to modify the contract) could reach fruition the Federal district court would have to compel arbitration (which it has not done) and an arbitrator would have to erroneously decide that a baseless grievance had merit In such circumstances not only is there no need for the Board to involve itself in the grievance arbitration procedure but such involve ment could needlessly disrupt a collective bargaining re lationship The ultimate issue before me is very narrow It is simply whether HAMTC s attempt to use the arbitral forum was a violation of the Act Under the circum stances of this case I find that HAMTC did not violate Section 8(a)(3) of the Act by demanding arbitration and seeking to compel it in the district court I therefore rec ommend that the complaint be dismissed CONCLUSION OF LAW The General Counsel has not established by a prepon derance of the evidence that HAMTC violated the Act as alleged in the complaint On these findings of fact and conclusions of law and on the entire record I issue the following recommend edio ORDER The complaint is dismissed in its entirety 10 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