Hastings, Senior Circuit Judge, and Kiley and Cummings, Circuit Judges.
One of these companion cases is an appeal by Smith Steel Workers, Directly Affiliated Local Union 19806, AFL-CIO (the "Union"), from the district court's judgment dismissing its suit seeking direct review of a unit clarification order of the National Labor Relations Board and seeking arbitration under a collective bargaining agreement with A. O. Smith Corporation (the "Company"). The other case is the Union's petition to review a subsequent order of the Board finding that the Union engaged in an unfair labor practice by insisting that the Company recognize it as the bargaining agent for employees whom the Board had found were represented by another union.
The Company manufactures automobile frames and other metal products at its Milwaukee, Wisconsin, plant. In 1946, the Union was certified by the Board as the bargaining representative for all "production, maintenance and office employees" at that plant not included in other units or not specifically excluded in the certification. Another union, the predecessor of the Technical Engineers Association (the "TEA"), was simultaneously certified as the bargaining representative of various employees of the Company, including laboratory technicians, laboratory assistants A and laboratory assistants B. 70 NLRB 1288.
In 1966, the Company and TEA entered into an agreement covering the employees in the TEA unit, while the Company and the Union entered into a contract covering the employees in its certified unit. Both contracts were to expire on July 31, 1968. When these contracts were negotiated, the Union represented 4500 employees and TEA represented 340 employees.
In 1966, TEA filed a grievance with the Company, claiming that certain employees covered by the Union's contract were performing work which was to be performed by employees represented by TEA. The Union agreed to participate in the arbitration of the grievance. The Company, the Union and TEA agreed upon an arbitrator, and the arbitration hearing commenced on January 4, 1967. At the start of the hearing, the Company explained that it had filed two unit clarification petitions with the Labor Board on December 30, 1966. This was pursuant to the procedure described in Carey v. Westinghouse Corp., 375 U.S. 261, 267-268, 11 L. Ed. 2d 320, 84 S. Ct. 401. Subsequently, the Union and TEA also filed petitions for clarification, in effect contending that their respective 1946 units should be clarified to include all non-supervisory employees in the Company's automotive laboratory. Consequently, the arbitration proceedings were postponed until the Labor Board could clarify the certified units pursuant to Section 9(c)(1) of the National Labor Relations Act (29 U.S.C. § 159(c) (1)) and Section 102.60(b) of the Board's Rules and Regulations (29 C.F.R. § 102.60 (b)). Before the Board, the Union sought to represent 10 Technicians I (formerly laboratory assistants A) being represented by the TEA. In turn, the TEA sought to represent the experimental workers being represented by the Union. On July 25, 1967, the Board issued its order clarifying the certifications, concluding that the experimental workers A and B were included in the TEA unit and excluded from the Union's unit. 166 NLRB No. 98. The Board refused to include Technicians I in the Union's unit.
In August 1967, despite the Board's ruling, the Union notified the Company that it expected the Company to continue to recognize the Union as the representative of the experimental workers A and B. The Company replied that it was bound by the Board's unit clarification order to recognize TEA as their exclusive bargaining representative. The Union recommended that the matter be submitted to an arbitrator. In September 1967, in the absence of a reply from the Company, the Union filed its action in the district court to set aside the unit clarification order and compel arbitration. The Board intervened to protect its jurisdiction over issues of representation, and on June 28, 1968, the district court dismissed the action on the ground that it lacked jurisdiction to set aside the Board's decision. The court also held that under Section 301(a) of the National Labor Relations Act (29 U.S.C. § 185(a)), it could not compel the Company to arbitrate the representation question which had already been determined by the Board adversely to the Union in the 1967 unit clarification order.
In the interim, the Company had filed unfair labor practice charges with the Board, alleging that the Union's actions in continuing to seek representation of the experimental workers violated the National Labor Relations Act. On January 30, 1968, a trial examiner concluded that the Union violated Section 8(b)(3) of the Act (29 U.S.C. § 158(b)(3)) "by pressing its demand with Smith for continuing recognition and bargaining for a unit which the Board found to be inappropriate in its Unit Clarification decision." In January 1969, the Board affirmed the recommendations of the trial examiner in the unfair labor practice proceeding and ordered the Union to cease and desist from insisting upon bargaining and arbitration of the dispute. The Board included the posting of notices in the relief granted. 174 NLRB No. 41.
The District Court's Order
We agree that the district court properly denied the Union's motion for summary judgment and properly granted summary judgment in favor of the Company and the Board. Federal district courts normally lack jurisdiction to review orders of the National Labor Relations Board. Boire v. Greyhound Corp., 376 U.S. 473, 11 L. Ed. 2d 849, 84 S. Ct. 894; Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50, 82 L. Ed. 638, 58 S. Ct. 459; Chicago Automobile Trade Association v. Madden, 328 F.2d 766, 768 (7th Cir. 1964). This is true of Board orders in certification proceedings. They are not deemed to be "final orders" and are subject to review only upon a subsequent unfair labor practice order arising from the disregard of the prior Board order. Boire v. Greyhound Corp., supra, at 476-477; McCulloch v. Libbey-Owens-Ford Glass Co., 131 U.S. App. D.C. 190, 403 F.2d 916 (D.C. Cir. 1968), certiorari denied, 393 U.S. 1016, 21 L. Ed. 2d 560, 89 S. Ct. 618; Groendyke Transport, Inc. v. Davis, 406 F.2d 1158, 1163-1164 (5th Cir. 1969). Before the district court, the Union argued that the Board's representation order was an arbitrary exercise of power exceeding its authority. The Union has not pressed this point on appeal and we consider it to have been abandoned. In any event, the Board's action in clarifying the appropriate unit did not constitute such an abuse of power as warrants action by the district court. Cf. Leedom v. Kyne, 358 U.S. 184, 3 L. Ed. 2d 210, 79 S. Ct. 180; McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 17, 9 L. Ed. 2d 547, 83 S. Ct. 671; Fay v. Douds, 172 F.2d 720 (2d Cir. 1949).
The district court was also correct in refusing to compel arbitration of the unit representation issue after its determination by the Board. Arbitration provides an alternative means of resolving disputes over the appropriate representational unit, but it does not control the Board in subsequent proceedings. Carey v. Westinghouse Electric Corp., 375 U.S. 261, 268-272, 11 L. Ed. 2d 320, 84 S. Ct. 401. In this case no arbiter's award existed to which the Board could defer. All the parties involved in the dispute joined in petitioning the Board for clarification of the certificates and the arbitration hearing was accordingly postponed. The Board was not bound to delay its consideration of the issue under these circumstances. The Board's 1967 determination of the appropriate units fully disposed of the question. It defined the lawful limits of coverage of the contract which the Union sought to have enforced under Section 301(a) of the Labor Management Relations Act (29 U.S.C. § 185(a)). As in Retail Clerks International Ass'n v. Montgomery Ward & Co., 316 F.2d 754, 757 (7th Cir. 1963), the Board's order deprived the Union of any right to recognition as the representative of the laboratory technicians and experimental workers. See also McGuire v. Humble Oil & Refining Company, 355 F.2d 352, 357-358 (2d Cir. 1966), certiorari denied, 384 U.S. 988, 16 L. Ed. 2d 1004, 86 S. Ct. 1889. The court could compel neither arbitration nor enforce any arbiter's award in conflict with the Board's order. National Licorice Co. v. National Labor Relations Board, 309 U.S. 350, 365, 84 L. Ed. 799, 60 S. Ct. 569.
The Unfair Labor Practice Order
No specific Section of the National Labor Relations Act expressly prohibits, as an unfair labor practice, attempts by a union to bargain for an inappropriate unit of employees. However, considerations of the policy of the Act have led the Board and courts to the conclusion that union demands for recognition as representatives of employees previously placed in a different unit by the Board violates the union's obligation to bargain collectively. Douds v. International Longshoremen's Ass'n, 241 F.2d 278, 281-283 (2d Cir. 1957); District 50, United Mine Workers of America (Central Soya Co.), 142 NLRB 930, 939 (1963); International Longshoremen's Ass'n (Sea-Land Service Inc.), 159 NLRB 382, 391-392 (1966); International Brotherhood of Electrical Workers, etc. (Tex-lite, Inc.), 119 NLRB 1792, 1796 (1958); see also United States Pipe and Foundry Company v. National Labor Relations Board, 298 F.2d 873, 877 (5th Cir. 1962); National Labor Relations Board v. Local 19, International Brotherhood of Longshoremen, 286 F.2d 661, 663-664 (7th Cir. 1961). The Union contends that those cases are inapplicable since they involved negotiations for new contracts with which the union demands interfered. Here the Company and the Union were bound by an existing contract to remain in effect until July 31, 1968, and there was no indication of any actual interference with the bargaining process. Nevertheless, we do not accept such a narrow interpretation of the Union's duty to bargain under Section 8(b)(3).*fn1
The Union's duty to bargain in good faith is not confined to negotiations for a new collective bargaining agreement. It continues during the term of the existing agreement to the same extent that the employer's duty continues under Section 8(a)(5) (29 U.S.C. § 158(a)(5)). See Union News Company v. Hildreth, 295 F.2d 658, 664-665 (6th Cir. 1961); Cox, The Duty to Bargain Collectively During the Term of an Existing Agreement, 63 Harv. L. Rev. 1097 (1950); cf. National Labor Relations Board v. Sands Mfg. Co., 306 U.S. 332, 342, 83 L. Ed. 682, 59 S. Ct. 508; Rapid Roller Co. v. National Labor Relations Board, 126 F.2d 452, 459 (7th Cir. 1942). The impropriety of the Union's demand for recognition as representative of an inappropriate unit was not altered by the absence of current negotiations for any new bargaining agreement. The continuing relationship of good faith bargaining which is the goal of the Act could only be undermined by the Union's continued insistence on ...