Hanford Atomic Metal Trades Council, Afl-Cio

National Labor Relations Board - Board Decisions

Oct 24, 1988

291 N.L.R.B. 418 (N.L.R.B. 1988)

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 j urisdiction 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