Zenith Radio Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 366 (N.L.R.B. 1969)

366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Zenith Radio Corporation , Zenith Sales Corporation,
Zenith Radio Distributing Corporation and
Independent Radionic Workers of America. Case
13-CA-7623-1-2
June 30, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On September 6, 1967, Trial Examiner Joseph I.
Nachman issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
further found that it was unnecessary to decide
whether Respondent had engaged in certain unfair
labor practices alleged in the complaint and
recommended that such allegations be dismissed.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief,
and the General Counsel and the Charging Party
filed cross-exceptions and supporting briefs. The
General Counsel and the Charging Party also filed
reply briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record' in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner to the extent consistent herewith.
The complaint alleges that the Respondent twice
violated Section 8(a)(5) and (1) of the Act, by
unilaterally placing into effect new job classifications
at a time when the Respondent and the Union had
agreed to arbitrate the predecessor classifications of
the new jobs, and by refusing to furnish to the
Union certain information relative to the proper
classification of jobs within the bargaining unit
represented by the Union. With respect to the latter
charge of failing to supply information, the Trial
Examiner concluded that the Respondent had indeed
breached its bargaining obligation, and we are not
persuaded by Respondent's arguments taking issue
with this conclusion. As to the allegation of
unilaterally reclassifying jobs in violation of Section
'Subsequent to the filing of exceptions and briefs , the General Counsel
moved that a related arbitration award be made part of the record in this
case . The Respondent did not oppose the motion . The motion is hereby
granted.
8(a)(5) and (1), the Trial Examiner concluded, after
reviewing all the relevant circumstances, that it
would "not effectuate the policies of the Act" to
find that Respondent had committed an unfair labor
practice in these instances. He. therefore
recommended that this portion of the complaint be
dismissed.
We believe that the charge of unlawful unilateral
action should be resolved on the merits. While the
Trial Examiner correctly thought that the dispute
between the parties would be put to rest, so far as
the propriety of the reclassifications themselves were
concerned, by an arbitration proceeding which the
parties had entered upon, it is apparent that the
underlying complaint, relating to the right of the
Respondent unilaterally to create new jobs while
arbitration was pending, was not, and was not
intended to be, resolved by the arbitrator in that
proceeding. The record shows that the complaint
alleges an unfair labor practice based on the
Respondent's unilateral action; that the parties have
deliberately refrained from submitting this basic
question to arbitration; and that they have indicated
that they believe the issue to be an appropriate one
for determination by the Board. In these
circumstances, we are of the opinion that the
purposes of the Act will be effectuated by deciding
the question.
In May 1965, the parties began bargaining for a
new contract to replace the one scheduled to expire
on June 30. While a union claim of inequity in the
classification of 85 jobs had been considerably
reduced by June 29, there remained in dispute on
this date some 29 positions. Among these were jobs
1202, 1207, and 1504. In order to reach a new
contract before expiration of the old one, the parties
agreed to process these 29 jobs under article 8 of the
new contract, which provided the mechanism for the
establishment or recognition of "new jobs" and the
procedure for resolving differences over the grades
and classifications assigned to such jobs.
Article 8.1 defines a "new job" to include both
newly created functions and jobs which have
undergone substantial changes in content. Article .8.2
provides in part, as follows: "At any time following
the date of this agreement the Company may
establish a new job as defined above or the Union
may give written notice to the Company that in its
opinion a new job has been established." Article 8.2
goes on to provide that, "in either case," the
Company shall, within 30 days, assign to the new
job an appropriate labor grade and submit to the
Union a job description and substantiating data for
the Company's evaluation of the job. The Union
then has 30 days in which to question, in writing,
the appropriateness of the labor grade and the
accuracy of the job description. If it raises a
question as to either, article 8.21 requires the parties
to confer, within 5 days, about settling the matter.
If this conference should fail to result in agreement,
either party may, within 10 days thereafter, refer the
177 NLRB No. 30
ZENITH RADIO CORPORATION 367
matter to arbitration.
Although the new contract was concluded on July
1, 1965, it apparently was not until February 7,
1966, that the Union attempted to seek revision of
any of the existing labor grades included in the
contract. On that date, the Union wrote to
Respondent demanding, pursuant to Article 8 of the
contract, the upgrading of labor grades in all
repairman job classifications carrying grades 9, 12,
13, 14, and 15. The Union's complaint covered,
among others, jobs 1202, 1207, and 1504,2 the
classifications here involved.
Thereafter, on April 13,' the Union filed a written
request for the most recent job descriptions and
substantiating data evaluation sheets as to certain
classifications, including jobs 1202, 1207, and 1504.
On April 28, Respondent furnished the requested
material. After further correspondence and one
meeting, the Union wrote to Respondent on August
22 that further study had confirmed its opinion that
all the jobs originally put in question should be
upgraded, and asked for a conference on the subject.
At the conference, held on September 2, the
discussion was confined to job 1202 which the
parties had, in June, decided to focus on "as being
representative of the total jobs that were involved in
the dispute."' The Union contended that job 1202
should be increased to labor grade 15. The
Respondent asked for time to study the matter. The
Union agreed, but asked that the Respondent make
its position known by September 15. On September
14, the Respondent sent the Union four job
descriptions, with evaluation sheets, and an
accompanying letter stating that it "proposed" to
replace job 1202 with the four described jobs The
Union thereupon filed arbitration demands with the
American Arbitration Association, under article 8 of
the contract, regarding the repairman classifications
in grades 9, 12, 13, 14, and 15. The parties
thereafter mutually selected an arbitrator and a
hearing was set for December 14 and 15.
On October 7, however, the Respondent sent the
Union separate notifications of the establishment of
four "new jobs," denominated 1218, 1219, 1312, and
1313, all of which were identical to the jobs
"proposed" by the Respondent on September 14.
The notification stated that the new jobs would take
effect as of October 10. On October 14, counsel for
the Union wrote to the Respondent stating, inter
alia, that the Respondent had violated the National
Labor Relations Act by unilaterally reclassifying job
1202; that the Union intended to file unfair labor
practice charges; and that the Union would proceed
with the arbitration of job 1202 only if the General
Counsel refused to issue a complaint. On November
'In Respondent ' s classification system, the last two digits of a
designation indicate the job number , and the first one or two digits, as the
case may be , refer to the labor grade assigned to that job
'This and other dates hereinafter refer to 1966
'The quoted testimony of Union Representative Franks , which not
mentioned by the Trial Examiner , was uncontradicted
1, the Respondent increased the labor grades on two
additional repairman's jobs, job 1504 being raised to
grade 17, and job 1207 to grade 14. Notice of these
actions, with job descriptions and substantiating
data, was forwarded to the Union. As with the first
set of changes, the Union again protested the right
of Respondent unilaterally to reclassify jobs after
the parties had agreed to submit the question of the
appropriateness of the relevant labor grades to
arbitration.
The parties thereafter proceeded to arbitration of
certain limited issues, specifically, the
appropriateness of the labor grades in jobs 1218,
1219, 1312, 1313, and 1407, the accuracy of the job
descriptions pertaining thereto, and the proper
effective dates of those jobs and of job 1704. The
parties withheld from arbitral decision the question
of the validity of the procedure by which the jobs
were created.'
That undecided issue is before us, in the following
form: did the Respondent violate Section 8(a)(5) by
creating new repairman jobs and grades after the
parties had agreed to arbitrate the accuracy of the
old classifications from which the new classifications
were developed? As a general rule, an employer is
derelict in his bargaining obligation if he alters the
established terms and conditions of employment
without first notifying the representative of his
employees, and, upon request, discussing the
proposed change with that representative, Shoreline
Enterprises of America, Inc., 117 NLRB 1619;
Washington Suburban Lines, 114 NLRB 808.
However, where the provisions of a
collective-bargaining contract authorize the
employer to take such action without notification
and consultation, he does not violate Section 8(a)(5)
by acting unilaterally. See Beacon Piece Dyeing and
Finishing Co., Inc., 121 NLRB 953, 956.
In the instant case, while conceding that the
contract appears to empower Respondent to create
new jobs whenever it desires, the General Counsel
takes the position that an exercise of such
contractual authority may not, as a matter of public
policy, be countenanced where, as in the present
situation , the parties had agreed to submit the
matters in dispute to arbitration. General Counsel
contends that allowing Respondent to first fix a
subject of arbitration and then freely modify the
structure of the problem to be arbitrated is so
disruptive of orderly collective bargaining that it
cannot be tolerated. The Union makes a similar
contention and, alternatively, argues, as a matter of
contract interpretation, that the Respondent is not
authorized by article 8 to make such changes when
arbitration has been set.
Normally, aside from any charge of bargaining in
bad faith, which is not an issue here, an employer's
'In an award issued on October 11, 1967, the arbitrator granted the
Union ' s grievance as to job 1218, upgrading it to labor grade 13, and
denied the Union ' s contentions that the other jobs should be further
upgraded
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statutory duty is simply to give notice to and, if
necessary, discuss with a union any proposed
changes in working conditions. A union may, if it
wishes, waive its right to such prior notice and
either completely surrender the opportunity to have
any say about such changes or provide, as it did
here, for a post hoc procedure for expressing its
disagreement. The fact is that the Union here
clearly did accord the Respondent the right to
"establish new jobs at any time" without
preliminary consultation. The labor grades and job
descriptions appropriate to such jobs could then be
questioned by the Union through a procedural
scheme terminating in arbitration. Manifestly, the
Union was uninterested in prior consultation as long
as the problems which arose from the establishment
of new jobs could eventually be arbitrated. The
General Counsel concedes this point, and his
complaint and argument go not to the Respondent's
failure to give notice of or discuss the job changes,
which, in this context, would have been a
meaningless procedure and diametrically opposed to
that contemplated by the contract; he, rather,
contests the Respondent's right to make such
changes at a certain time; i.e., after the dispute over
the original classification has been set for arbitration
by agreement of the parties. The issue is, then, not
whether Respondent was derelict in its Section
8(a)(5) duty to inform and consult, but whether it
was forbidden by the Act to take the actions it did
when it did.
In our opinion, the clear and unequivocal
language of the contract authorized the
Respondent's conduct. Article 8.2 provides that the
Respondent may "at any time .. . establish a new
job." No exception is made for the pendency of
arbitration, and we perceive no policy considerations
impelling us to infer that such an exception must be
recognized. Since the basic questions-what are the
duties of the subject employees and how much
should they be paid will be investigated and
answered by the arbitrator to whom the parties have
committed the argument, Respondent's
"establishment" of the new jobs is of little moment
to the real arbitral decision to be made.' In the
circumstances described above, we conclude that
Respondent did not breach its statutory duty to
bargain by its establishment of new jobs after
agreeing to arbitration.
Furthermore, when we cast the facts in a light
different from that presented to us by either of the
parties, it would seem that the Respondent's actions
of October 7 and November 1 were nothing more
than simple compliance with the routine
The arbitrator ' s award reveals on its face that the new job
classifications created by the Respondent from the jobs (1202, 1207, and
1504) which gave rise to the institution of the arbitral proceedings , in fact
became the subject matter of the arbitration and were fully considered and
passed upon by the arbitrator Thus, it is clear that Respondent' s actions
did not delay or frustrate the desired arbitration of the evaluation of work
performed by employees in these classifications
requirements of article 8. We assume that since the
Union's earlier letter of February 7 stated that it
was written pursuant to article 8, it may properly be
deemed to be a claim by the Union, under article
8.2, that " in its opinion a new job has been
established" in each job category described therein.
While it would then have been the Respondent's
duty, pursuant to 8.2, to assign a labor grade and a
job description to the alleged "new jobs" within 30
days, Respondent did not do so. However, it is
evident that the Union fully acquiesced in
Respondent's delay, and agreed instead to engage in
the extracontractual informal conferences and
studies on these matters which, the record shows,
had become an established feature of the
relationship between the parties.
These preliminary negotiations continued until
September, at which time the Union reaffirmed its
original opinion as to the need for upgrading and
filed its demands to arbitrate, again specifically
pursuant to article 8. At this point, according to the
scheme of article 8, the matters to be arbitrated
would be the labor grades and job descriptions
which should have been issued by the Respondent,
pursuant to article 8.2, by March 7. Since
Respondent, with the Union's acquiescence, had not
previously done so, and since the arbitration
formula in article 8 clearly contemplates that the
matter to be referred to arbitration is the
Respondent's evaluation , made after the Union has
raised the question, of the appropriate grade and
description for a particular job, the matter would
not have been ripe for arbitration had Respondent
not issued its determinations. It thus seems apparent
that Respondent, proceeding in conformance with
the Union's expressed understanding that article 8
governed its claims, was not merely entitled, but was
in fact required, to take the final steps which would
make article 8 arbitration possible. And if
Respondent's actions in submitting these revised
classifications were, as we have indicated, a
necessary prelude to perfecting the Union's right to
have the arbitration under article 8 which it desired,
it can hardly be contended that Respondent engaged
in unlawful unilateral action within the meaning of
Section 8(a)(5).
If the Respondent urges the preceding theory of
the case at all, it is only inferentially. It would seem,
however, that the legal context in which the facts
before us arose compels the conclusion that the
Respondent was both authorized and required to
issue the disputed reclassifications. It thus appears
to be irrelevant that Respondent does not argue that
its actions of October 7 and November 1 were
intended to perfect the case for arbitration. Since, as
indicated in the foregoing analysis, we believe that
the Respondent was under a contractual duty to
submit, at some time before arbitration began,
documents expressing its appraisal of the jobs put
into question by the Union, it would seem that,
whatever its intentions, Respondent cannot be held
ZENITH RADIO CORPORATION 369
to have engaged in unlawful unilateral action by ^so
doing.
We conclude, therefore that the Respondent's
conduct in this regard was not violative of Section
8(a)(5). Paragraph 7 of the Trial Examiner's
Conclusions of Law is accordingly amended to read
as follows:
7. By creating new job descriptions and labor
grades to replace jobs 1202, 1207, and 1504,
Respondent did not violate Section 8(a)(5) and (1)
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and orders that the Respondent,
Zenith Radio Corporation, Zenith Sales
Corporation, and Zenith Radio Distributing
Corporation, Chicago, Illinois, their officers, agents,
successors , and assigns , shall take the action set
forth in the Trial Examiner's Recommended Order,
as so modified:
It is hereby ordered that the complaint be, and it
hereby is , dismissed insofar as it alleges conduct not
herein specifically found to be unlawful.
MEMBER BROWN , dissenting in part:
I agree that Respondent violated its bargaining
obligation when it refused to furnish the Union with
specific relevant information concerning the proper
classification of certain jobs . However, unlike my
colleagues , I would dismiss the complaint respecting
the establishment of new jobs.
The parties' operative agreement fully deals with
the subject matter of their dispute, and the contract
is reasonably susceptible of the differing
interpretations the parties urge in support of their
respective positions . What is presented , therefore, is
essentially a contract dispute . In these circumstances
I agree with the Trial Examiner that the applicable
portions of the complaint be dismissed without an
adjudication of the contract issue."
See my separate opinions in Boston Edison Co, 176 NLRB No. 132,
and Cloverleaf Division ofAdams Dairy Co., 147 NLRB 1410, 1420-25.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPH I . NACHMAN, Trial Examiner : This complaint,'
heard at Chicago, Illinois, on March 21 and 22, 1967,
alleges that Zenith Radio Corporation, Zenith Sales
Corporation, and Zenith Radio Distributing Corporation,
together constituting a single-intergrated business
enterprise (herein called Radio, Sales , and Distributing
respectively , and collectively called Respondent or
Company), refused to bargain with Independent Radionic
Workers of America, herein called the Union, the
recognized collective-bargaining representative of the
employees involved, by (1) unilaterally placing into effect
new job classifications, after having previously agreed on
arbitration as the means for resolving the placement of
said classifications ; and (2) refusing to furnish the Union
with information concerning the proper classification of
other jobs , all in violation of Section 8(a)(5) and (1) of the
National Labor Relations Act, as amended . Respondent,
by answer , admitted certain allegations of the complaint
but denied the commission of any unfair labor practices.
At the hearing , all parties were represented by counsel,
and were afforded full opportunity to introduce relevant
evidence, to examine and cross-examine witnesses, to
argue orally on the record , and to submit briefs. Oral
argument was waived. Briefs submitted by the respective
counsel have been duly considered.
Upon the entire record , including my observation of the
witnesses , I make the following:
FINDINGS OF FACT2
The Unfair Labor Practices Alleged
A. Background
For more than 15 years the Union has been recognized
by Respondent as the collective -bargaining representative
of the employees in the units here involved , and successive
labor contracts have been entered into between said
parties . In May 1965, the parties began bargaining for a
new contract to replace the then current contract
scheduled to expire by its terms on June 30 , 1965. In these
negotiations the parties bargained on the Union ' s claim
that there was inequity in the classification or placement
of approximately 85 jobs, and on a substantial number of
these agreement was reached . However, on the day
preceding the expiration of old contract , there remained
29 jobs, including specifically jobs 1202, 1207, and 1504,
on which agreement had not been reached . Because the
parties were in accord on most issues , the Union , to bring
about a contract before July 1, 1965, proposed that it
would withdraw from the bargaining table its demands
with respect to the 29 jobs on which agreement had not
been reached , if Respondent would agree that the Union's
contentions with respect to the 29 jobs could be processed
under article 8 of the contract (hereafter more fully
discussed). Respondent agreed , and after the few
remaining matters in issue were resolved, a contract was
executed effective for a period of 3 years from July 1,
1965, and thereafter from year to year absent notice.'
The contract of July 1, 1965, contains inter alia, the
following provisions:
ARTICLE 8. New Job Classifications in Exhibit "A"
8.1 It is recognized that from time to time there may be
occasion to establish new jobs . It is agreed that the
determination of the duties to be included in any job
classification is the sole prerogative of the Company,
subject to the rights of the Union set forth below to
question the appropriateness of the labor grade or
'Issued January 30, 1967, on charges filed October 18, 1966, and
amended December 13, 1966.
'The complaint alleges and the answer admits facts which establish that
Respondent is engaged in commerce , and that the Union is a labor
organization within the meaning of the Act . I find these facts to be as
pleaded . Also, Respondent admits that the separate units at Radio, Sales,
and Distributing, as alleged in the complaint, are appropriate . I so find.
'There was also a provision for reopening under conditions not here
mentioned
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accuracy of the job description . For the purpose of this
Article 8, a new job shall be considered to be:
8.11 A job in which the duties are entirely different
from those of any job classification included in
Exhibit "A"; or
8.12 A job in which the duties performed under a job
classification included in Exhibit "A" are changed to
such a substantial degree that in relation to the levels
of skill and other requirements which characterize the
respective labor grades included in Exhibit "A" the
job may properly be placed in either a higher or a
lower labor grade; or
8.13 A job in which the duties consist of some
formerly included in two or more other job
classifications included in Exhibit "A" or
8.14 A job in which the duties performed under a job
classification included in Exhibit "A" are changed to
a sufficient extent to justify a new job description
though the change in duties involves a level of skill
and other requirements comparable to other job
classifications in the same labor grade in which the
job was classified prior to the change in duties.
8.15 In combining jobs, the Company will follow the
policy of assigning duties within a job that require
reasonably related skills and skill levels wherever this
is possible.
8.2 At any time following the date of this agreement the
Company may establish a new job as defined above or
the Union may give written notice to the Company that
in its opinion a new job has been established. In either
case the Company agrees within thirty (30) days after
establishment of a new job to assign it to an
appropriate labor grade and to notify the Union of the
applicable rate range, together with a job description
and substantiating data on the evaluation for the new
job. The Company and the Union agree that the Zenith
Hourly Job Evaluation Plan, dated February 6, 1963,
shall be the accepted plan by which the evaluation of a
new job by the Company shall be determined , in order
that the assignment of the new job to a labor grade
shall be appropriate and consistent with the evaluation
and labor grade of other jobs in Exhibit "A" of this
Agreement which have a comparable level of skill and
other job requirements . It is agreed that if within thirty
(30) days from the date of such notification by the
Company the Union does not file in writing with the
Company any question concerning the appropriateness
of the labor grade or the accuracy of the job
description , such labor grade and job description shall
be considered to have been accepted.
A job description lists those duties that are essential to
a job and are typical of its level of skill and
responsibility . It is the Company' s intent that employees
be assigned work consistent with their job description,
and it is contrary to the Company's intent that they be
given assignments completely foreign to their job
description , especially when such assignments should be
made to other employees who normally do such work.
8.21 Should the Union within such thirty (30) day
period file in writing with the Company any objection
to the labor grade and/or the accuracy of the job
description , the Company and the Union shall then,
within five (5) scheduled work days, confer with
respect to settlement of such objection.
8.22 Should a different labor grade be agreed upon as
a result of such conference , the new labor grade shall
be effective as of the Monday following the date of
the job established, provided, however, that the new
labor grade shall be effective no earlier than thirty
(30) days prior to the date the Union filed in writing
with the Company the notice of objection.
8.23 Should the Union and the Company fail to reach
an agreement through such conference either or both
parties may , within ten ( 10) regularly scheduled work
days from the date of conclusion of such conference,
refer to arbitration the question of the
appropriateness of the labor grade and/or the
accuracy of the job description , in accordance with
the provisions of Article 25 hereof.
8.3 All cases which come under the terms of this article
are excluded from consideration under the terms of
Article 24 "Grievance Procedure." It is understood and
agreed, however, that where a new job is created by
combining two or more jobs , or parts of two or more
jobs, and where such new job jeopardizes the seniority
standing of employees directly affected by establishment
of the new job, then establishment of such new job shall
be subject to the grievance procedure.
8.4 In any case filed under the terms of this article and
then taken to arbitration, any question of retroactivity
shall be limited to the provisions of Article 25.
8.5 If any claim under this Article 8 is referred to
arbitration , the arbitrator ' s decision shall be governed
by principles outlined as follows:
8.51 The assignment of the job to a labor grade shall
be appropriate and consistent with the ranking into
labor grades of other jobs in Exhibit "A" of this
contract . The labor grade selected shall be that one in
which the jobs already ranked have levels of skill and
other job requirements comparable to those inherent
in the job in question.
8.52 The combining of two or more jobs which have
previously been in the same labor grade may, but
would not necessarily, mean that placing such job in
the same labor grade would be considered
appropriate.
8.53 A new job created by combining two or more
jobs, or parts of two or more jobs, may be placed in
a higher , a lower , or the same labor grade of any
former job involved, with the level of skills required
and other job requirements being the determining
factors.
8.6 If a departmental job audit discloses that either an
employee or a job is misclassified, the Company will
notify the Union promptly.
ARTICLE 36. Term of Agreement.
36.1 . . . It is understood and agreed that Article 8 of
this agreement provides the procedure for resolving
questions of changes in wage rates of individual jobs,
and that the negotiation of wage rates for individual yob
classifications is specifically excluded from reopening
negotiations as outlined in this paragraph.
36.5 This agreement represents complete collyctive
bargaining and full agreement by the parties in respect
to rates of pay, wages , hours of employment or other
conditions of employment which shall prevail during the
term hereof. Any subject matter not mentioned herein is
hereby specifically waived and it is agreed that neither
party will present any demands or claims not included
W
ZENITH RADIO CORPORATION
herein during the life of this agreement, unless it is
agreed by both parties that changes in or amendments
to this agreement are desirable. However, it is agreed
that demands or claims may be presented for
negotiation in any instance involving the subject of the
reduction of any of the following employee benefits in
effect as of the date of this contract Group Life,
Sickness and Accident Insurance, Blue Cross Plan for
Hospital Care, Group Surgical Fee Benefits and
In-Hospital Doctor Calls
36.51 Any past practice that is a deviation from the
contract, whether the inception of such practice was
prior to or after the effective date of this contract,
shall not control and shall not be taken into account
in construing the contract. Only the provisions of the
contract shall control.
B. The Current Facts
1. Alleged unilateral action as to new jobs
On February 7,° the Union wrote Respondent
requesting the upgrading of various repairman job
classifications including those in labor grades 9, 12, and
15,5 claiming that the higher skills were now required to
perform those jobs than was the case when the job
classifications were originally written. The Union's
demand closed with the statement: "We file this demand
under Article No. 8 and any and all paragraphs and/or
subparagraphs applicable to the demand." Covered by this
request were the jobs here involved, namely jobs 1202,
1207, and 1504. Whether Respondent replied to this letter,
the record does not disclose. In any event, on April 13,
counsel for the Union wrote Respondent asking the latter
to provide the Union with the most recent job descriptions
and substantiating data evaluation sheets as to certain
specified jobs, including specifically jobs 1202, 1207, and
1504, as well as the job description and substantiating
data covering the group leaders,' which information, the
letter stated, was necessary to enable the Union
intelligently to fulfill its obligation under section 8 of the
contract. On April 28, Respondent furnished the Union
with the requested material, to the extent here material.'
Following this exchange of material, the parties met on at
least one occasion to discuss their problems, and several
letters bearing thereon were exchanged. Thereafter, the
Union wrote the Company, on August 22, that its study
of the materials submitted with Respondent's letter of
July 1, confirmed the Union's position that the jobs in
question should be upgraded, and asked for a conference
at the earliest possible date to discuss the subject. Such
meeting was held on September 2.
`This, and all dates hereafter mentioned are 1966 , unless otherwise
stated
'In the job numbers herein referred to, the last two digits are the job
number , while the first digit in cases of a three digit number , and the first
two digits in case of a four digit number , refer to the labor grade
`The letter also requested that Respondent permit Franks , a consulting
engineer employed by a management consultant firm which the Union had
retained , to have access to the plants to make an on sight study of the jobs
mentioned in the Union ' s letter The Union concluded by stating that
Frank ' s on sight study, and his expert opinion thereafter , was necessary to
enable the Union to determine whether the Company's conclusions with
respect to the jobs therein mentioned were proper , and whether a grievance
should be filed pursuant to section 8 of the contract , in the event the
parties reached an impass Respondent denied this request , as well as a
renewal thereof in the Union ' s letter of May 9 However , in subsequent
conferences between the parties, a form questionnaire was agreed on,
371
Discussion at the September 2, meeting was apparently
confined to job 1202, the Union taking the position that
job should be increased to labor grade 15. Respondent,
while not agreeing with the Union, asked for time to study
the matter. The Union agreed, but asked that the
Company advise the Union of its position no later than
September 15, and stated that if such proposals were
satisfactory it would so notify the Company and the
matter would be concluded; if unsatisfactory the
conferences would be regarded as concluded, and the
10-day contractual period for invoking arbitration would
begin to run as of the date the Union received such-
response.' On September 14, the Company sent the
Union, "as per our agreement," four job descriptions with
evaluation data sheets for each, and which it "proposed"
to replace job 1202 - class A repairman 'The Union,
considering the Company's response unsatisfactory, filed
with American Arbitration Association, separate
arbitration demands, as provided in the contract, with
respect to the repairman classifications in grades 9, 12, 13,
14, and 15, but suggested that as all the claims arise under
article 8 of the contract, there should be a single
arbitration to dispose of all issues. This suggestion was
apparently accepted by Respondent. The American
Arbitration Association by notice to the parties,
confirmed the selection by them of Professor Arnold R.
Webber as Arbitrator, and advised the parties that the
hearing thereon would be held December 14 and 15.
On October 7, the Company sent the Union separate
notifications of the creation of four "new" jobs, with a job
description and evaluation data sheet for each such job,
which the Union was requested to approve. The new jobs
were designated as 1218, 1219, 1312, and 1313. The
notification stated that, in the opinion of the Company,
the new job descriptions would more accurately reflect the
duties and responsibilities of the incumbents than the 1202
description, and that the incumbents of that classification
would be transferred to the new classifications, on a step
basis, as of October 10. The parties stipulated that prior
to the creation of the new jobs, there were 339 employees
in the repairman classification in job 1202; after the
creation of the new jobs, there wer• 103 employees in job
1218, 13 employees in job 1219, 152 employees in job
1312, and 74 employees in job 1313. Thus, the new jobs
resulted in about two-thirds of the employees involved
being raised from labor grade 12, to labor grade 13
which Respondent agreed to process on a sampling basis , and submit the
completed questionnaires to Franks This was done , and there is no
contention that this procedure did not give Franks the information
necessary to enable him to provide the Union with an expert opinion
'As to two jobs, not here involved, the requested material was not
supplied on the ground that said jobs had theretofore been withdrawn, in
accordance with the procedures fixed by article 8 of the contract
'This is in accordance with the testimony of Union President Raetz,
corroborated by Franks Browdy testified that no such statement was
made I make no finding in that regard, and do not resolve the conflict,
because in my view the testimony goes only to the question whether the
Union envoked arbitration prematurely This question , were it still an issue
between the parties, should be determined, at least mitialy by the
Arbitrator , but as shown post , the timeliness of the arbitration demand has
been waived
'The use of the word "proposed " in Respondent' s letter, is difficult to
understand Under the contract , as well as in practice , whenever the
Company found it necessary to revise a job or create a new one, it acted
unilaterally, merely advising the Union what it had done by sending it a
job description and evaluation data sheet The new or revised job would
become effective on a date fixed by the Company If the Union objected
within a stated period, the contract provided for settlement of the
differences by a conference, or by arbitration
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 14, the Union wrote the Company
protesting the appropriateness of the labor grade and the
accuracy of the job descriptions with respect to the 1218,
1219, 1312, and 1313 jobs, as well as the Company's
unilateral action in reclassifying job 1202 at a time when
the Union, in accordance with article 8 of the contract,
had invoked arbitration proceedings which would include
job 1202. The letter concluded by stating that the Union
had filed an unfair labor practice charge with the Board,
based on the aforementioned action of the Company, and
that the Union would be willing to proceed with
arbitration as to the 1202 job, only in the event the
General Counsel refused to issue a complaint on the
Union's unfair labor practice charge.
On November 1, the Company notified the Union of
two "Revised" jobs designated as 1407 and 1704, and
submitted to it revised job descriptions and evaluation
data sheets. The notification stated that these revised job
descriptions more accurately reflected the duties and
responsibilities of the incumbents in job 1207 and 1504,
respectively, and that the incumbents of those jobs would
be transferred, on a step basis, to 1407 and 1704
respectively, on November 7 The evidence does not show
the number of employees involved in these jobs, but
whatever the number, all employees placed in the revised
jobs were raised two labor grades.
Upon receipt of the Company's notices of November 1
with respect to jobs 1207 and 1504, the Union protested
the right of the Company to unilaterally change terms and
conditions of employment after the issue of the
appropriate labor grade had, pursuant to the contract,
been submitted to arbitration. However as to these two
jobs the Union stated its purpose not to contest
Respondent' s unilateral change because the revision was in
accord with the Union' s original request for
reclassification, but expressed the opinion that the change
should, in accordance with the contract, be retroactive to
January 8, and that if Respondent would so agree, all
issues with respect to jobs 1207 and 1504 could be
eliminated from the arbitration proceeding then scheduled
for December 14
At the time of the hearing herein (March 21 and 22,
1967), the hearing in the arbitration proceeding had not
been held, apparently because of the Union 's unwillingness
to proceed in view of the issuance of the complaint herein
by the General Counsel. On June 22, 1967, counsel for the
Union and Respondent filed with me a joint motion that
there be made a part of the record herein said motion and
two documents attached to and made a part thereof, and
consisting of (1) a preliminary opinion dated May 19,
1967, by Arbitrato: Arnold R Webber, and (2) an
agreement, dated June 20, 1967, between Respondent and
the Union.'" The preliminary opinion of Arbitrator
Webber, above referred to, indicates that a preliminary
hearing was held before him on May 12, 1967, with
respect to job 1202; that Respondent argued that further
processing of the arbitration proceeding should be held in
abayance until the legal issues before the Board, as
presented herein , are determined because issues of
contract interpretation are common in both proceedings,
and that proceeding at that time might result in a conflict
between the decision of the arbitrator and that of the
Board ; that the Union, on the other hand, urged that
arbitration proceed without awaiting a decision in the
instant proceeding because the Board might give weight to
the decision in the arbitration proceeding, but should a
conflict between the two occur, questions of preemption or
reconciliation can be decided at that time. The arbitrator,
for reasons stated in his opinion , concluded that the
parties should promptly proceed to hearing for the
purposes of arbitration with respect to job 1202. Whether
such arbitration hearing has yet been held, the record does
not disclose The agreement between Respondent and the
Union, attached to the joint motion, dated June 20, 1967,
shows that Respondent and the Union have made the
following commitments regarding the proceedings now
pending before the Board and the arbitrator:
1. The appropriateness of the labor grade and/or the
accuracy of the job descriptions are in issue before the
arbitrator only with respect to jobs 1218, 1219, 1312, and
1313 (created by Respondent to replace job 1202), and job
1407 (created by Respondent to replace job 1207).
2. The only other issue before the arbitrator is the
proper effective date, under the contract between the
parties, of the jobs referred to in the proceeding
paragraph, and job 1704 (created by Respondent to
replace job 1504).
3. Neither party shall raise before the arbitrator any
procedural objection including, but not limited to
objections to the manner of creation of said jobs or the
manner in which said jobs were brought to arbitration.
4. That the issues so submitted for arbitration cover all
issues in the Union's demand for arbitration, dated
September 20, 1966, and that no other part of said
demand shall thereafter be arbitrable.
5. The Union withdraws that portion of the demand for
arbitration which relates to jobs in labor grade 9, and will
within 30 days from June 20, 1967, institute at step 3 of
the grievance procedure provided for in the contract, any
grievance it may have regarding the creation of jobs 925,
926, or 927, and that its failure to institute such grievance
within the 30 day period shall constitute a waiver of its
right to further process any grievance relating to the
aforesaid three jobs."
2. Alleged failure to furnish information
Among the 29 jobs concerning which the parties had
not reached agreement when the 1965 contract was
concluded, and which they agreed might be processed
under article 8 of the contract, were jobs 715-05, 1305,
and 815. Following execution of the contract, the Union
requested the Company to study each of the
aforementioned jobs in accordance with article 8 of the
contract, with the view of obtaining a higher labor grade
which, the Union urged, was called for by reason of the
work performed by the employees involved. The facts with
respect to these jobs are now set forth, jobs 715-05 and
1305 being discussed together because the facts are
identical.
a. Jobs 715-05 and 1305
Early in 1966, the Union formally requested a study of
these fobs." Respondent agreed, and shortly thereafter
notified the Union that the employees in these jobs were
working within the framework of the respective job
'"By letter dated June 22, 1967, the General Counsel advised me that he
had been served with the aforesaid motion and documents attached thereto,
and that while he could not join in said motion , he had no objection to the
aforesaid material being made part of the record Accordingly , I grant the
joint motion which, together with the attachments therein referred to, and
the General Counsel's letter of June 22, 1967, 1 now make a part of the
record herein
"Whether any such grievance was filed by the Union within the 30 day
period, is not disclosed by this record
"These requests were dated March 21, with respect to job 715-05, and
ZENITH RADIO CORPORATION
descriptions and that there was no justification for a
classification change. Thereafter a number of job
conferences were held at which the Company agreed to,
and did give positions urged by the Union further study
By letter dated September 7, the Company reaffirmed its
position that there had been no sufficient change in the
duties and responsibilities to warrant reclassification." On
September 9, the Union filed with the American
Arbitration Association, its separate demands for
arbitration." By letter dated September 12, the American
Arbitration Association acknowledged the demand and
advised the parties of its procedures.
On September 22, the Union wrote the Company that
it had filed the arbitration demand when it did to preserve
its rights timewise, and that to properly evaluate the issues
and determine whether to press the arbitration, the
Company was asked to furnish as to each job:
Copies of the data compiled during the course of the
investigation which comprised the review of this job,
and which caused the Company to determine that there
had been no substantial change in the duties,
responsibilities or content thereof, including but not
limited to, the records of discussion with the
[employees] and their supervisors, and the notes of the
analyst
Replying to this request on September 27, Respondent
took the position that when it furnished the Union with
the applicable job description and evaluation data sheet, it
complied with its obligation to furnish information. On
October 4, the Union wrote Respondent that it sought not
only the job description and evaluation data sheets, but all
written data which would include the written reports
memoranda, etc., of the analyst's concerning their
discussions of the job with the incumbents and
supervisors, as well as the written reports, notes, etc., of
the analyst's observations of the job, as well as all other
relevant written material, and asked that in the event such
material did not exist, Respondent should so advise.
Replying on October 7, to the last mentioned request of
the union, Respondent stated:
. . The Company declines to release any internal or
inter-departmental correspondence and reports which
may have been prepared by subordinates regarding the
classification[s] in question, .. .
b. Job 815 Coil Quality Technician
The Union's request for a study of this job pursuant to
article 8 of the contract, was made on February 24. After
making the requested study, the Company, on March 21,
wrote the Union that the employees involved were
working in accordance with their job description, and that
it found no justification for any change in labor grade.
Over the next several months there were a number of
conferences at which the Union supplied certain
information and the parties discussed their respective
contentions At one of the final meetings, the Company
April 5, with respect to job 1305 Each letter stated that the request was
made pursuant to article 8 of the contract
"The Company at this time revised the job description of job 715-05 to
include the elements of dismounting and certain material handling
functions , not theretofore mentioned in the job description , but concluded
that this change was not sufficiently substantial to require reclassification
"The separate demands stated that the Union, "referred to arbitration
the question of the appropriateness of the labor grade and /or the accuracy
of the job description [of the specific fob] in accordance with the provisions
of Article 8 and 25 of the Agreement "
373
agreed to give consideration to raising the point value of
certain elements of the job, and advise the Union when a
decision was reached By letter of September 13,
Respondent notified the Union of its final position that
while the point value of certain elements of the job has
been raised, this did not result in a sufficient change to
warrant an increase in labor grade. On September 21, the
Union sent its demand for arbitration to American
Arbitration Association, and the latter on September 22,
notified the parties of its procedures."
On October 5, the Union wrote Respondent that its
arbitration demand was filed to preserve its rights, and
that to enable the Union to determine whether arbitration
should be pursued,
we request that you provide us with the
substantiating data which comprised your investigation
of this job and caused the Company to conclude that it
did not warrant an increased grade level consideration.
The data should include, but is not limited to, the
elements of Company Job No. 815 with job numbers
814 and 1013 and answers to questions posed to
employees and supervisors.
The Company replied that in previous correspondence
and discussion, it had given the Union Respondent's
reasons for not upgrading the job, and that
. you have in your possession the 815 evaluation data
sheet which was revised after additional investigation of
the job. You also have "spread" sheets which were
prepared by the Company comparing the evaluation
data for Jobs 814, 815, 1010 and 1013 All this material
was discussed in detail in our conferences on this job.
In the meanwhile, the arbitration hearing on this job
was scheduled for January 3, 1967. On December 16,
Union counsel wrote the Company that he had been
informed by personnel in the Board's Regional Office that
Respondent had stated that it did not have any of the
information requested in the Union's letter of October 5
The letter concluded-
accordingly, the Union has reevaluated the
information in its possession with reference to Job No.
815 and reaffirms its belief that the matter merits
arbitration. Therefore, the Union will be prepared to
proceed with the arbitration scheduled for the 3rd of
January.
At the arbitration hearing on January 3, it developed
that job analyst Kusmider, who in the course of his duties
had observed performance of this job and interviewed the
job incumbents and their supervisors, had in his possession
notes that he made while performing his aforesaid duties
The notes were delivered to the arbitrator, and apparently
a copy was given to the Union's counsel." Kusmider
testified that a day or two after completing his
investigation, he reported the results of his investigation
orally to his superior," that he had his notes before him
when he made that report; that his superior was aware of
that fact; and that he then kept the notes in his personal
file.1e Kusmider also testified that after his oral report to
"The Union 's arbitration demand stated that it
refers to arbitration the question of the appropriateness of the labor
grade and/or the accuracy of the job description of Job No 815
"A copy of said notes , identified as General Counsel's Exhibit 4 was
received in evidence in this proceeding
"Jerad Browdy , supervisor of wage and salary administration
"Some evidence was taken on the question whether Browdy was aware
of the existance of Kusmider ' s notes when Respondent received the
Union's demand of October 5 Browdy testified that while it is not
required , he prefers that his analyst make notes on investigations , rather
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Browdy, he made a written report on job 815, but when
this was done, the record does not disclose. At the time of
the hearing before me , the arbitrator ' s decision on this job
had not issued."
C Contentions and Concluding Findings
Although conceding that Respondent had the right
under article 8 of the contract, to unilaterally create new
jobs, subject only to the Union's right to grieve with
respect thereto if it so elected, which grievance, if filed,
would be resolved by final arbitration, it is the position of
the General Counsel and the Union that once arbitration
was envoked with respect to a particular job, the
Company's rights under article 8, with respect to that job,
are exhausted. From this premise it is argued that the
Union having envoked arbitration with respect to jobs
1202, 1207, and 1504, Respondent ' s subsequent action in
replacing those jobs with new jobs , 20 constituted unilateral
action proscribed by Section 8(a)(5). The General Counsel
and the Union further argue that by failing and refusing
to furnish the Union with relevant information in its
possession, which was necessary or at least helpful to the
Union in deciding whether to proceed further with
arbitration as to jobs 715-05, 815, and 1305, Respondent
violated its bargaining obligation. As to the first
mentioned aspect of the case, Respondent argues, relying
on the strict language of the contract , that the agreement
vests in it the absolute right to create new jobs unilaterally
at any time it sees fit, and that it has done nothing to
indicate an agreement on its part that its right to create
new jobs is in any way limited by the Union's right to
invoke arbitration. On the alleged failure to furnish
information aspect of the case, Respondent argues (1) that
as article 8.2 of the contract only requires the Company
to provide the Union with a job description and evaluation
data sheet (information which it supplied with respect to
each job), the Union waived its right to any further
information ; and (2) that in any event, at some time and
than rely on memory , and that frequently the analyst will give him a
written report on the results of the investigation In view of the position
Respondent took on the other two jobs , namely, that no intra office
material would be produced , and Browdy ' s admissions that the Company
had in its files a memorandum dated August 4, from analyst Klouthis
regarding his findings with respect to job 715-05, and a memorandum
dated August 4, from analyst Francis regarding his findings with respect to
job 1305, 1 find it unnecessary to make any finding as to whether Browdy
was aware of the existance of Kusmider's notes and whether Respondent's
failure to produce them prior to the arbitration hearing was deliberate or
inadvertent
"Attached to the brief submitted by counsel for the Union , was a copy
of the arbitrator ' s opinion and award , dated April 8, 1967, which awards
that with respect to Job 815, ( 1) there has been no change of a substantial
degree with respect to the factors of physical demand and job hazard, (2)
no reevaluation of the factor responsibility for the work of others, is
required , and (3 ) there have been duty changes of a substantial degree with
respect to evaluation of factors experience , dexterity , sensory effort, and
responsibility for material or product, which may or may not require an
upward reevaluation The award directs the parties to negotiate and agree
on proper current evaluations of the factors mentioned, and if that is not
possible, the issues with respect thereto should be returned to the arbitrator
for further hearing and decision Whether a further hearing of the kind
contemplated by the arbitrator has been held , is not disclosed by the
record
Following receipt of the briefs filed by the parties , Respondent filed with
me a motion to strike the Union ' s brief because of alleged misstatements,
and the attachment of the arbitrators award which, it asserts, is not a part
of the record before me I regard the so called Motion as reply
brief, not provided for by the Board ' s rules In any event , I do not regard
the arbitrator 's award as evidence before me , but merely as a citation of
authority which the Union, correctly or incorrectly believes to be pertinent
to the issues Accordingly, I deny said motion
in some form, it supplied the Union with all information
the latter sought, and which Respondent had, relating to
the jobs involved. I proceed now to a consideration of
these contentions.
1. The issues with respect to the new jobs
A decision on the merits on this aspect of the case, of
course, requires an interpretation of article 8 of the
contract. While the Board has the authority to interpret
collective-bargaining agreements to determine whether an
unfair labor practice was committed (See N.L.R.B v. C
& C Plywood Corp., 385 U.S. 421), it has for many
years, as a matter of policy, held that where the parties
have by their contract established grievance and
arbitration machinery to resolve disputes concerning its
interpretation and administration , which the parties do not
utilize, but instead file charges with the Board, and the
conduct with which the employer is charged is not a part
of a conscious campaign designed to undermine the
authority and prestige of the Union, or to evade the
employer's bargaining obligation, the policies of the Act
to encourage free collective bargaining would best be
served by leaving the parties to pursue the contractually
established procedure for the resolution of disputes arising
from the interpretation or administration of their contract,
and withhold decision as to whether the employer's
conduct constitutes an unfair labor practice.21
I am persuaded for reasons hereafter stated, that
Crown Zellerback, supra, and the cases above cited,
control here, and that this aspect of the complaint should
be dismissed without deciding whether, as the General
Counsel and the Union contend, an unfair labor practice
was committed when Respondent, after arbitration had
been invoked with respect to jobs 1202, 1207, and 1504,
created new jobs to replace those which had been made
the subject of arbitration. The following considerations, in
"Jobs 1218, 1219, 1312, and 1313 were created to replace job 1202, and
jobs 1407 and 1704 were created to replace jobs 1207 and 1504,
respectively
"See Consolidated Aircraft Corporation, 47 NLRB 694, 706, enfd 141
F 2d 785 (C A 9), Crown Zellerback Corporation, 95 NLRB 753, United
Telephone Company , 112 NLRB 779, 781 , National Dairy Products, 126
NLRB 434, 435, Montgomery Ward & Co, 137 NLRB 418, 432 In
Crown Zellerback , supra, the Board , after pointing out that the parties in
that case had a contractually established procedure for disposition of
disputes as to proper interpretation of the contract , which the Union failed
to utilize but instead invoked the process of the Board, and that the
employer's conduct was not part of a campaign to undermine the prestige
of the Union , or to evade the employee ' s bargaining obligation, said (at
754)
In view of this background of a peaceful and what appears to be a
wholly salutary employer-employee relationship , we are reluctant to
issue a remedial collective-bargaining order as a result of the
Respondent ' s isolated unilateral action Particularly is this so since the
parties have failed to utilize the contractual procedures established for
bargaining concerning the interpretation and administration of their
contract , and where there is apparently no serious obstacle to an
amicable settlement of the issue through bargaining within the
framework provided in that contract Indeed , the Board has frequently
stated that the stability of labor relations which the statute seeks to
accomplish through the encouragement of the collective bargaining
process ultimately depends upon the channelization of the collective
bargaining relationship within the procedures of a collective bargaining
agreement By encouraging the utilization of such procedures in this
case, we believe that statutory policy will best be effectuated
Affirmative Board action would on the other hand put he Board in the
position of policing collective bargaining agreements , a role we are
unwilling to assume Accordingly, we shall dismiss the complaint without
determining whether the Respondent's conduct would, under other
circumstances, warrant the issuance of a remedial order
ZENITH RADIO CORPORATION
my view, dictate this conclusion:
1. The dispute here is clearly one involving
interpretation of article 8 of the contract, and that article
provides that machinery for resolving such disputes,
namely the arbitration process, which the Union invoked.
2. The Company and the Union have a history of long
and harmoneous relations.
3. There is no evidence of union animus on the part of
Respondent, or that its conduct was part of a campaign
designed to evade its bargaining obligation, or to
undermine the authority and prestige of the Union as the
representative of the employees.
4. Although Respondent claimed that the Union had
improperly invoked arbitration, and reserved the right to
so argue in the arbitration proceeding, it did not refuse to
participate therein. On the contrary, it was the Union that
refused to so proceed unless the General Counsel declined
to issue a complaint on the instant charge. In any event,
in view of the stipulation filed with me after the close of
the hearing (supra), it is clear that the parties have or will
proceed with the arbitration to the conclusion
contemplated by their contractually established
procedure. 22
5. Assuming that a violation of Section 8(a)(5) of the
Act were to be found, the only meaningful remedy, under
the circumstances here, would be to require Respondent to
disestablish the new jobs and restore those which they
replaced.23 This would result in reduced labor grades to a
substantial number of employees, and is hardly the kind
of an event which can be expected to stabilize labor
relations and encourage private collective bargaining -
the principle objective of the Act.
For the reasons stated, I find and conclude that it
would not effectuate the policies of the Act to hold, that
on this aspect of the case, Respondent refused to bargain
with the Union within the meaning of Section 8(a)(5) of
the Act. Accordingly, I recommend that the complaint to
the extent that it alleges that Respondent violated Section
8(a)(5) by unilaterally creating new jobs, be dismissed.
2. Refusal to furnish information
The law is well settled that Section 8 (a)(5) and 8(d) of
the Act impose on an employer the obligation to supply a
bargaining representative , upon request, with information
which is relevant and reasonably necessary to the
intelligent discharge of the latter ' s functions as such
representative . N.L.R.B. v. Truitt Mfg. Co., 351 U.S.
"Danner Press , Inc, 153 NLRB 1092, C & C Plywood Corporation,
148 NLRB 414, and Huttig Sash and Door Company, Incorporated, 154
NLRB 811, 1 find distinguishable on the facts In Danner Press , supra,
although the Union invoked the contractually agreed -upon arbitration
procedure, the employer frustrated such efforts and refused to proceed in
accordance therewith . In C & C Plywood, supra , the contract between the
parties did not contain provisions for the settlement of disputes , hence no
settlement thereof was possible , except through litigation In Huttig Sash
and Door, supra , although the contract contained grievance and arbitration
provisions, such provisions were not envoked by either party , and because
of the nature of the violation the Board apparently concluded that the
policies of the Act would best be effectuated by interpreting the contract
ann deciding whether a violation of Sec. 8(a)(5) had occurred, and if so, to
provide a remedy therefor . Here , as I have found, the parties have agreed
to proceed with arbitration and to be bound by the results thereof . In that
posture, in the circumstances of this case , as I have concluded, it would
not effectuate the policies of the Act for the Board to intervene
"Certainly an order which merely directed Responent to bargain with
the Union relative to those jobs, assuming such an order legally
permissible under the facts of this case , would have little, if any practical
, effect, in resolving the dispute.
375
149; N.L.R.B. v. Acme Industrial Co., 385 U.S. 432, 436,
and the cases there cited.
With respect to the three jobs involved in this aspect of
the case, 24 the Union had asked Respondent to review
those jobs with a view to increase the labor grade. In the
course of Respondent's investigation, an analyst spoke
with some job incumbents and their supervisors, and
personally observed employees involved perform their
duties, making notes as to what they saw and heard that
they regarded as relevant. The information so gathered
was reported by the analyst, to Jerad Browdy,
Respondent's supervisor of wage and salary
administration. In the instant case the reports dealing with
jobs 715-05 and 1305, were in writing and are preserved as
part of the Company's files. While the report as to job
815 was oral, the notes which the analysts are encouraged
to make, he preserved in his personal file. Browdy, upon
receipt of information given him by an analyst, and after
the requisite conferences within his organization and the
preparation of a job description and substantiating data
sheet, signs those documents and transmits them to the
Union for the latter's post audit, as provided in article 8
of the contract. After Browdy advised the Union that the
three jobs in question had been studied, and that no basis
existed for increasing the labor grade, the Union filed its
separate requests for arbitration with respect to the proper
labor grade of these jobs. At the same time it wrote
Respondent, that the request for arbitration was filed at
that time to comply with the time limitations of the
contractual arbitration provisions, and that to enable the
Union to evaluate the issues and determine whether to
proceed with arbitration, it asked to be supplied with the
data compiled by Respondent in the course of its
investigation, and which caused it to conclude that a
change in labor grade was not warranted, including
specifically, records of discussions with employees and
their supervisors and notes of the analysts. That
Respondent preserved at least some material of this
nature is not only admitted, but is made clear by its final
reply to the Union's request, declining to furnish same.
The only issue, therefore, is whether, under the
circumstances of the case, such refusal was justified.
In support of its position Respondent urges (1) the
information which the Union requested, and which
Respondent failed to furnish, is not relevant to the issues; 25
(2) that in the bargaining negotiations leading to the
current contract, the Union waived its right to the
information it requested;` (3) that Respondent's
"Jobs 715-05,815, and 1305
"The alleged irrelevance is that there is no dispute between the parties as
to the actual work performed by the job incumbants involved the dispute
being the proper labor grade to be assigned to employees performing that
work the documents requested by the Union would be of no value to it in
deciding whether to proceed with the arbitration
"Respondent argues that during the negotiations the Union proposed
that article 8.2 be worded so as to require the Company, when it
established a new job , to furnish the Union , in addition to a job
description , 'full information and substantiating data sheets on the
evaluations for the new job" but that the contract as executed calls only
for a job description "and substantiating data on the evaluation for the
new job." Respondent points also to article 24 of the contract, which
applies to grievances generally , as distinguished from article 8 which
applies only to grievances concerning labor grade and job descriptions, that
article 24.6 provides that "The Company and the Union will make
available to each other all pertinent know information with respect to a
grievance." (Emphasis supplied .) Based on the difference in the language
use in article 8 , from that used in article 24 , it is urged , that the Union
waived any right it may otherwise have had to the information here
involved There is no evidence to indicate the reasons for the change in
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obligation to furnish information under article 8.2 of the
contract arose only with respect to a "new job" and that
neither job 815 or 1305 involved "new jobs";27 and (4) that
by the job descriptions and substantiating data sheets, by
oral statements during meetings , and by permitting union
representative to observe the job incumbents and conduct
on the job interviews, the Union obtained all the
information it sought, and that there is no obligation on
an employer to furnish information in the exact form
requested by a union. Treating with these contentions in
the order stated, I find them to be without merit.
As the Court of Appeals for the Second Circuit stated
in Fafnir Bearing Company v. N.L.R.B., 362 F.2d 716,
721, and which was quoted with approval in N.L.R B v.
Acme Industrial Co., supra, in the arbitral process neither
party should be required "to play a game of blind man
bluff." Full information should be available to either party
so that it may be determined whether to invoke the
arbitral process, or if theretofore invoked whether to
proceed further with it. For if all claims as which a
grievance is invoked had to processed through arbitration
without an opportunity to fully and intelligently evaluate
the merits of the claim, not only would the parties be put
to the expense and effort of prosecuting and defending
unmeritious claims, but the system would become
overburdened. N.L.R.B v. Acme Industrial Co., supra
Whether the notes of the analysts and other memoranda
requested by the Union in this case would ultimately
prove valuable to the Union, is beside the point. The
material certainly related to the basis for Respondent's
conclusion that the facts did not justify upgrading of the
jobs involved, and is, therefore, relevant to the issue posed
to the arbitrator. This is sufficient, absent a showing of
justification, to impose on Respondent the duty to supply
the information requested by the Union. Standard Oil
Company of California, Western Operations, Inc., 166
NLRB No. 45. In this connection it is relevant to note
that Browdy admitted the analyst's report is relevant to
his determination as to the proper classification of a job,
and that he relies on it, at least in part, for that purpose.
And Witness Franks, a consulting engineer whose firm
had been retained by the Union to advise it with respect
to the job classifications, and whose education and
experience in that field certainly qualify him as an expert,
testified that the notes of the analysts would have been
helpful to him in advising the Union whether it should
proceed to arbitration on these jobs, because they
contained diagrams and were made on the spot while the
people involved were performing their work.
Nor am I able to agree with Respondent's contention
that the contract provisions demonstrate that the Union
waived its right to the information it sought. It is true
article 24, which relates to grievances generally, and which
is admittedly not applicable here, provided that in cases
arising under that article the parties will make available to
each other "all pertinent known information," while
article 8 only requires notice of a new job and its rate
range, together with a job description and substantiating
data sheet. It is also true that at some point (the exact
time not being shown by the record), the Union had
proposed language for article 8.2 of the contract which
would have required the Company to supply "full
information," but Section 8.2 as finally agreed on, only
requires the Company to produce the material above
language, at what point in the negotiations or under what circumstances it
was made, or just what the parties had in mind
"Respondent concedes in its brief that job 715-05 was a "new job"
within the meaning of article 8
indicated The record is silent as to what discussion there
was between the parties relating to those differences, or
what the parties had in mind. There is, therefore, no
showing that the Union's right to information which may
be of assistance to it in deciding whether arbitration under
article 8 of the contract should be invoked, or having been
invoked should be further processed, was "fully discussed
or conciously explored" by the parties, or that the Union
"conciously yielded and unmistabably waived its interest
in the matter." Proctor Manufacturing Corporation, 131
NLRB 1166, 1169. See also N.L R.B. v Perkins
Machine Company, 326 F.2d 488 (C.A. 1); Press
Company, Incorporated, 121 NLRB 976, and the cases
there cited. Accordingly, I find and conclude that the
Union did not contractually waive its right to the
information here sought.
The contention that the Union improperly invoked
arbitration with respect to jobs 815 and 1305, because
they were not "new jobs" subject to the provisions of
article 8 of the contract, raises a question of contract
interpretation which should be resolved, at least initially
by the arbitrator. As shown supra, footnote 19, the
arbitrator took jurisdiction of the dispute with respect to
job 815, and made an award.28
Finally, I must and do reject the contention that
Respondent has, in one form or another, fully complied
with the Union's request for information I agree with the
proposition that an employer is not required to furnish
information in the precise form requested by a union, but
in the instant case, I find and conclude that Respondent
failed to furnish in any form, some information
legitimately requested by the Union.39 The fact that
Respondent permitted representatives of the Union to
observe the work of the incumbents, and conduct on the
job interviews, did not necessarily give the Union the same
information that would be available to it if it had the
benefit of the notes of Respondent's analysts and the
views expressed in memoranda as to the reasons for
Respondent's conclusion that the jobs in question were
properly evaluated. With this information in hand the
Union could better determine whether to proceed with the
arbitration it had theretofore invoked. The fact that no
dispute between the parties as to the duties actually
performed by the employees involved is shown to exist
does not negate the fact that the notes of its analysts and
other memorandums requested by the Union, and which
Respondent admittedly refused to furnish, would be of
assistance to the Union in determining whether to proceed
with the arbitration as to the jobs involved, for the
inferences to be drawn from admitted facts are often as
important as the facts themselves.
Accordingly, and for the reasons stated, I find and
conclude that by failing to comply with the Union's
request for data, as above set forth, Respondent refused to
bargain with the Union in violation of Section 8(a)(5) of
the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce
"The award does not deal with this issue I must assume, therefore, that
Respondent waived the point, or that the arbitrator impliedly found it to
be without merit
"Respondent ' s contention that its obligation to furnish information is
limited to the job description and the substantiating data sheet , has been
considered and disposed of supra
ZENITH RADIO CORPORATION 377
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All hourly rated factory employees employed by
Zenith Radio Corporation, Zenith Sales Corporation,
respectively, and all hourly rated employees of the service
department and warehouse of Zenith Radio Distributing
Corporation, excluding, in each instance, all office and
clerical employees, electricians, operating engineers , office
janitors, toolroom and model shop employees, guards and
supervisors as defined in the Act, constitute separate units
appropriate for the purpose of collective bargaining within
the meaning of Section 9(a) of the Act.
4 Since 1952, and at all times thereafter, the Union
has been, and is now , the collective-bargaining
representative of the employees in each of the
aforementioned separate units, for the purpose of
collective bargaining within the meaning of Section 9(a) of
the Act
5 By failing and refusing to furnish the Union with
certain information requested by the latter, as set forth in
section B, 2, a and b hereof, Respondent refused to
bargain collectively with the Union, and interfered with,
restrained, and coerced its employees in the exercise of
rights guaranteed them by Section 7 of the Act, and
thereby engaged in and is engaging in unfair labor
practices, proscribed by Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
7. The policies of the Act would best be effectuated by
withholding determination on the question whether
Respondent's action in unilaterally creating new jobs to
replace jobs 1202, 1207, and 1504, was an unfair labor
practice proscribed by Section 8(a)(5) and (1) of the Act,
and dismissing the allegations of the complaint in that
regard
THE REMEDY
Having found that Respondent violated Section 8(a)(5)
and (1) of the Act, it will be required to cease and desist
therefrom, or from any like or related conduct, and to
take affirmative action designed and found necessary to
effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(5)
of the Act by refusing to furnish the Union with certain
information requested by the latter, to aid it in
determining whether or not it should proceed further with
a pending arbitration proceeding involving jobs 715-05,
815, and 1305, I shall recommend that Respondent be
ordered, upon request, to supply such information to the
Union, to the extent that it has not heretofore done So. 3"
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law and the entire record in the case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, it is recommended that the National Labor
Relations Board order that Zenith Radio Corporation,
Zenith Sales Corporation, and Zenith Radio Distributing
Corporation, their officers, agents, successors, and assigns,
shall:
The Union having been furnished with the notes made by analyst
Kusmider relating to job 815 , Respondent will not be required to furnish
that material again
1. Cease and desist from:
(a) Refusing to bargain collectively with Independent
Radionic Workers of America, by refusing, upon request,
to furnish information relating to jobs which are, or may
be, the subject of an arbitration proceeding, where the
information so requested is of a nature that it might be
useful to said labor organization in determining whether
or not it should institute an arbitration proceeding or
proceed further therewith.
(b) In any like or related manner interfering with the
efforts of said labor organization to bargain collectively
on behalf of the employees in the units herein found
appropriate
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the aforesaid
Act
(a) Bargain collectively with the aforesaid labor
organization by furnishing it, upon request, with the
material requested by the latter with respect to jobs
715-05, 815, and 1305, to the extent that such information
was not heretofore supplied
(b) Post at their plants in Chicago, Illinois, copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms furnished by the Regional Director of
Region 13 (Chicago, Illinois), after being duly signed by
authorized representatives, shall be posted immediately
upon receipt thereof, and shall be so maintained for a
period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the aforesaid Regional Director , in writing,
within 20 days from the date of this Decision , what steps
they have taken to comply herewith 32
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT refuse to bargain collectively with
Independent Radionic Workers of America, by
refusing , after request by said Union, to furnish
information relating to jobs which are the subject of an
arbitration proceeding, where the information so
requested is of a nature that it might be useful to said
Union in deciding whether or not to institute or proceed
further with an arbitration proceeding.
WE WILL NOT in any like or related manner interfere
with the efforts of said Union to bargain collectively on
behalf of the employees covered by our
collective-bargaining agreement.
378
WE WILL bargain collectively with the aforesaid
Union by furnishing it, upon request, with the material
requested by the Union with respect to jobs 715-05,
815, and 1305, to the extent that such information was
not heretofore supplied.
The appropriate units are.
All hourly rated factory employees employed by Zenith
Radio Corporation, Zenith Sales Corporation,
respectively, and all hourly rated employees of the
service department and warehouse of Zenith Radio
Distributing Corporation, excluding, in each case, all
office and clerical employees, electricians, operating
engineers, office janitors, toolroom and model shop
employees, guards and supervisors as defined in the
Act.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dated By
Dated By
ZENITH SALES
CORPORATION
(Employer)
(Representative) (Title)
ZENITH RADIO AND
DISTRIBUTING
CORPORATION
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 881 U.S.
Courthouse and Federal Building, 219 South Dearborn
Street, Chicago, Illinois, 60604 Telephone 828-7570
ZENITH RADIO
CORPORATION
(Employer)
Dated By
(Representative) (Title)