Petition to review an order of the National Labor Relations Board which dismissed a complaint against a union for violating § 8(b)(3) of the National Labor Relations Act, 29 U.S.C. § 158(b)(3), by failing to bargain collectively. 202 N.L.R.B. No. 18. Petition granted.
Danaher,*fn* Lumbard and Timbers, Circuit Judges.
Pursuant to § 10(f) of the National Labor Relations Act, 29 U.S.C. § 160(f), the Sperry Systems Management Division of the Sperry Rand Corporation (the Company) petitions this court to review and set aside an order of a divided National Labor Relations Board which on March 5, 1973 dismissed a complaint against Local 445 of the International Union of Electrical, Radio and Machine Workers, AFL-CIO (the Union), 202 N.L.R.B. No. 18. The complaint charged, and the Company here argues, that the actions of Local 445 constituted the unfair labor practice of refusing to bargain collectively in violation of § 8(b)(3) of the Act, 29 U.S.C. § 158(b)(3). We find that on this record the Board erred in dismissing the complaint, and, therefore, we grant the petition, set aside the Board's order, and remand for further proceedings.
On June 6, 1962, the Board certified Local 445 as the bargaining representative for certain of the Company's technical employees at its plants in "metropolitan New York City, including Nassau and Suffolk Counties [the remainder of Long Island], on temporary assignments wherever located from said plants, and on temporary or permanent assignments from said plants to customer or vendor installations, wherever located." At all times relevant to this proceeding, Article 1 of the collective bargaining agreement between the Company and the Union provided, "This Agreement shall apply to all plants now operated by the Employer, its successors and assigns, wherever situated." This discrepancy between the certification and the agreement concerning the proper collective bargaining unit would lead to complex litigation of which the instant case is but a part.
In the spring of 1970, the Company commenced operations in a new facility in Vallejo, California, in which it employed, among others, three draftsmen who performed work similar to that performed by Local 445's members on Long Island. No draftsman was transferred to the California facility from the New York City area.*fn1 In November 1970 the Union, having learned that the three employees at Vallejo had been given different titles and lesser pay than workers doing comparable work in New York, filed a grievance with the Company which demanded that the Company apply the New York City agreement to the Vallejo employees.
The Company denied the grievance and the matter went to arbitration pursuant to the contractual procedures. The issue presented at a hearing before Arbitrator Benjamin C. Roberts was "whether the technical personnel performing drafting work at Vallejo, California, are under the coverage of the collective bargaining agreement with Local 445." On April 19, 1971, Arbitrator Roberts issued a 22-page opinion in which he concluded that the parties in Article 1 did mean to apply the agreement to all of the Company's plants, wherever located. He, however, said that he could not apply the representation provisions of the agreement to the Vallejo employees without violating their right under the Act not to organize. Consequently, he required compliance only with the wages and other conditions of employment, which provisions he felt could be legally enforced.
As a matter of law, the technical personnel performing drafting work at the Company's plant at Vallejo, California, are not under the coverage of the collective bargaining agreement with Local 445. However, they shall be governed by the wages and other terms of employment contained in the Local 445 Agreement (excluding the Union Shop and other representation clauses) and retroactive to June 5, 1970.
On May 3, 1971, the Union's president, Henry Zylla, wrote the Company, saying that the Union expected the award to be applied to all the Company's plants. In following weeks Zylla met with Company officials several times in an effort to enforce the award. The Company was told that the Union did not seek to represent the Vallejo workers, but rather was trying to protect the job security of the Long Island workers, which might be threatened if the Company continued to pay lower wages in California. Zylla also said that the Union interpreted the arbitrator's award as only setting a minimum for the California employees -- the Company could pay them more if it desired.
On July 26 the Union filed a second grievance with the Company which alleged that the Company had failed to comply with Article 1 of the Agreement as interpreted by the arbitrator and which demanded that the Company comply with the award, recall the two Vallejo draftsmen who had been laid off in March by procedures allegedly improper under the contract, and make the two whole. One response of the Company was to file on August 2 the unfair labor practice charges that led to the instant case. The other was to deny the grievance after a meeting its labor relations supervisor had on August 11 with Zylla and another union official. Zylla at this meeting listed the Union's demands relating to compliance with the award which dealt with wages; severance, vacation and sick pay; pension contributions; tuition refunds; overtime payments; the participation in a merit kitty; the recall of the two draftsmen; reimbursement of their medical expenses; and the reclassification of the drafting personnel wrongly classified. Following the Company's rejection on August 25, the Union proposed arbitration and an arbitrator was agreed upon, but the parties subsequently postponed the arbitration indefinitely.
Simultaneously with its efforts to enforce the arbitration award, Local 445 also attempted to become the bargaining representative for the Vallejo employees. On May 10 it filed a representation petition with the Board's Region 20 in San Francisco. On July 8 the Regional Director ordered an election in a unit consisting of the draftsmen and two clerical employees, which the Union lost on August 5 by a vote of 2 to 0, with one vote being challenged.*fn2 The Union challenged this result and filed unfair labor practice charges against the Company alleging, inter alia, that the two draftsmen had been laid off because of their union activity. Following an investigation, the Regional Director dismissed the charges on September 14. He found that the lay offs had been caused by a lack of work and that when work subsequently became available the Company for business reasons had subcontracted it. On December 3 this dismissal was sustained by the General Counsel, and on December 16 the Regional Director overruled the Union's objections and certified the election results.
Meanwhile, Sperry on July 20 filed a petition in the New York County Supreme Court to modify the arbitrator's award insofar as it applied the New York City agreement to Vallejo, on the grounds that the award went beyond the only issue submitted to the arbitrator which was whether the agreement applied in toto to the California employees and that the Company's compliance with the award would violate the rights of the California employees. On November 2, Justice Amsterdam filed a decision granting the Company's petition on both grounds, 80 L.R.R.M. 2061. The Union appealed, but on its motion the Appellate Division postponed hearing the appeal until after the Board's decision in the instant case. Following that decision, the ...