Central Cartage Co.

National Labor Relations Board - Board Decisions

Oct 11, 1973

206 N.L.R.B. 337 (N.L.R.B. 1973)

CENTRAL CARTAGE COMPANY 337
Central Cartage Company and Mechanic Motor City
Lodge No. 698, International Association of Machin-
ists and Areospace Workers, AFL-CIO. Case 7-
CA-9871
October 11, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS KENNEDY
AND PENELLO
On March 16, 1973, Administrative Law Judge
Samuel Singer issued his Decision, attached hereto, in
this proceeding, dismissing the complaint in its entire-
ty. Jurisdiction, however, was retained for the purpose
of entertaining an appropriate and timely motion for
further consideration upon a proper showing that the
dispute was not resolved in accordance with stan-
dards established by the Board under the grievance-
arbitration procedures of the pertinent collective-bar-
gaining contracts. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the Re-
spondent filed an answer to exceptions filed by the
General Counsel and a supporting brief.
This case was initiated by charges filed on October
12, 1972, by Mechanics Motor City Lodge No. 698,
International Association of Machinists and Aero-
space Workers, AFL-CIO, herein called the Charging
Party. The complaint, issued on November 20, 1972,
alleged that Respondent violated Section 8(a)(1) and
(3) of the Act by "coercively inducing and encourag-
ing its employees" to withdraw from the Charging
Party and threatening them with discharge if they
failed to do so, and by discharging and refusing to
reinstate employee Stanley Dominiak because of his
affiliation with the Charging Party.
A hearing was held on January 31, 1973, before the
Administrative Law Judge with all parties appearing.
After the counsel for the General Counsel presented
his case, the Administrative Law Judge, sua sponte,
raised the issue of the appropriateness of deferring the
issues involved to the arbitral process under the
Board's Collyer doctrine' and the principles set forth
in National Radio Company, Inc., 198 NLRB No. 1.
After hearing arguments and receiving legal memo-
randa from all parties, as discussed above, he dis-
missed the complaint and deferred the issue, of the
justification for Dominiak's layoff and the conduct in
connection thereto for the parties to settle under the
appropriate contract provisions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
' Collyer Insulated Wire, A Gulf and Western Systems Co, 192 NLRB 837.
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The record shows that the issues involved contain
elements of a job assignment dispute between two
unions. Dominiak was originally hired on June 1,
1971, as a casual worker performing functions of con-
struction and general construction maintenance
work, replacing an employee named Adkins. Prior to
Adkins, an employee named Beanum performed the
work. Dominiak worked in general maintenance and
construction throughout the summer and fall of 1971
until December, at which time he was laid off until
January 1972. During that period, he was not a mem-
ber of either the Charging Party or Local Union No.
299, International Brotherhood of Teamsters, the two
unions with which the Respondent has collective-bar-
gaining contracts and which represent certain of the
Respondent's employees.
When Dominiak was rehired in January 1972, his
work consisted of general maintenance and construc-
tion with enlarged scope, performing maintenance
work on projects throughout the plant. At the request
of the business agent for the Charging Party, Domin-
iak signed an IAM membership on February 16, 1972,
and an authorization for checkoff of IAM dues and
welfare fund contributions.
According to Dominiak, soon thereafter he was
told by his foreman, inter alia, that he had improperly
joined the wrong union and if he were to belong to
any union it should be Teamsters. The Respondent
ignored bills for checkoff to be paid on behalf of
Dominiak, contending that prior employees in
Dominiak's job slot had belonged to Teamsters Local
Union No. 299. Dominiak maintained his member-
ship with the Charging Party. On July 28, 1972, Do-
miniak wag--temporarily laid off.
IAM Business Representative Daniel testified that
on December 7, 1972, representatives of his Union
and of the Teamsters met with Respondent to try to
work out an understanding as to which union Domin-
iak was required to join. Both unions have union-
security clauses in their respective contracts. Accord-
ing to the IAM, Dominiak was performing IAM "unit
work." Respondent claimed that he was performing
Teamsters work and should join the Teamsters.
Daniel testified that Respondent relied largely
upon a prior dispute involving an employee named
Beanum, whose job Dominiak was allegedly filling,
and over which job there had been a similar dispute.
That dispute, involving the right of Beanum to rein-
statement with backpay, was withdrawn "without
prejudice" while pending before the Joint Arbitration
Committee, the step prior to final and binding arbitra-
tion in the IAM contract.
No agreement was reached at the December 7
206 NLRB No. 89
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting as to which union should represent Domin-
ick.
At the end of December, Dominiak was advised
that the Respondent was ready to recall him to gener-
al maintenance work throughout the garage and ter-
minal, but nothing was said as to which union would
represent him. However , soon thereafter Dominiak
signed a Teamsters dues-checkoff authorization at the
request of the Teamsters steward. At the close of the
hearing, Dominiak was in the Respondent's employ-
ment subject to_ the Teamsters contract.
The parties stipulated at the hearing that the Re-
spondent has recognized both the Teamsters and the
Charging Party for approximately 30 years as the col-
lective-bargaining representatives of certain of its em-
ployees, and that during this period fruitful labor
relations have resulted without any major incidents.
On April 19, 1973, after the issuance of the Admin-
istrative Law Judge's Decision, the Charging Party,
the Teamsters, the Respondent, and Dominiak
reached an amicable settlement of the disputed issues
and signed a private agreement entitled "Agreement
Between Lodge No. 698, Teamsters Local No. 299
and Central Cartage Company, Subject: Arbitration
and Settlement of the Stanley Dominiak Matter." The
agreement stated that Dominiak was not laid off for
union activity and that his work is properly covered
by the Teamsters contract; it also delineated the job
duties covered under the IAM contract and the limi-
tations on the work which Dominiak would be per-
mitted to perform . The agreement was signed by
Dominiak, the IAM, the Teamsters, and the Respon-
dent and it was agreed that the settlement was "a full,
final and complete settlement of the Stanley Domin-
ick matter."
The General Counsel filed a motion urging the
Board to reject the settlement, alleging that he was a
necessary party and rcquesting the Board to remand
the case to the Administrative Law Judge for further
hearing on the merits . Respondent filed an answer
opposing the motion and moved that , as all the issues
were resolved, the case should be dismissed in its en-
tirety. Copies of the settlement were attached by the
parties as appendixes to their respective motions.
We have fully and carefully reviewed the excep-
tions of the parties, the General Counsel's motion and
the Respondent's answer thereto, the Administrative
Law Judge's Decision, the settlement agreement, and
the record as a whole, and agree with the conclusions
of the Administrative Law Judge that under the spe-
cial facts of this case the complaint should be dis-
missed in its entirety . In arriving at this conclusion,
however, we rely solely on the subsequent actions of
all the parties , discussed below, and find it unneces-
sary to, and do not, adopt the rationale set forth in the
Administrative Law Judge's Decision.
We do not find it crucial in the circumstances here-
in involved that the General Counsel was not a party
to the private settlement arrived at by the parties after
the hearing and after the issuance of the Administra-
tive Law Judge's Decision. The issues raised by the
General Counsel in his motion do not find their an-
swer in any inflexible rules of pleading or practice.
The only relevant question is whether the settlement
voluntarily arrived at by the parties covering all the
pertinent issues effectuates the policies of the Act.
We are satisfied that it does. The settlement clearly
indicates that all issues in dispute were considered
and appropriately resolved in a manner which dispos-
es of not only the Dominiak matter but also similar
issues involving related job assignments . Significantly
in this regard, we note that none of the parties directly
involved has raised any issues concerning the settle-
ment, and all appear willing to abide by its terms. We
also have considered that the parties by their action
have avoided possible time-consuming and costly ad-
ditional litigation or formal arbitration under their
respective collective-bargaining agreements.
Under all the circumstances , therefore , we are of
the opinion that it will best effectuate the policies of
the Act not to disturb the settlement or to involve the
Board in further proceedings in this matter. Accord-
ingly, we deny the General Counsel's motion to re-
mand the case to the Administrative Law Judge and
to reopen the hearing.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge, with the spe-
cial qualifications discussed above, and hereby orders
that the complaint herein be, and it hereby is, dis-
missed in its entirety.
DECISION
SAMUEL M. SINGER, Administrative Law Judge : This case,
initiated by charges filed on October 12, 1972 , and a com-
plaint issued on November 20, 1972, came on for hearing
before me on January 31, 1973 , with all parties appearing.
The trial was recessed on February 1 to permit the parties
to file briefs on the question of whether the case should be
deferred , pending resolution of the issues posed under the
applicable contractual grievance-arbitration provisions,
pursuant to Collyer Insulated Wire, A Gulf and Western Sys-
tems Co., 192 NLRB 837 . Briefs were filed by General
Counsel and Respondent on Febraury 23.
Upon the pleadings, evidence adduced , and argument
presented at the hearing, and in the briefs , I make the fol-
lowing:
CENTRAL CARTAGE COMPANY 339
FINDINGS AND CONCLUSIONS
I BUSINESS OF RESPONDENT,
LABOR ORGANIZATION INVOLVED
Respondent, a Michigan corporation with principal of-
fice and place of business in Detroit, Michigan , is a com-
mon carrier providing trucking services primarily as an
intrastate transporter of freight . During the representative
year 1971, it provided transportation services valued in ex-
cess of $50 ,000 for employers within Michigan, each of
which annually has a direct inflow into interstate commerce
of goods and materials valued in excess of $50 ,000. I find
that at all material times Respondent has been and is an
employer engaged in commerce within the meaning of the
Act.
Charging Party (IAM) is a labor organization within the
meaning of Section 2(5) of the Act.
II. BACKGROUND; THE ISSUES POSED
The complaint alleges that Respondent violated Section
8(a)(1) and (3) of the Act by "coercively inducing and en-
couraging its employees" to withdraw from Charging Party
(IAM) and threatening them with discharge if they failed to
do so; and by discharging and refusing to reinstate an em-
ployee (Stanley Dominiak) because of his affiliation with
IAM. In its answer, Respondent denied these allegations.
As to the alleged discharge, it asserted that Dominiak was
a "casual employee" laid off "due to general economic,
business and work conditions." During the hearing prior
to completion of General Counsel's case-it became evi-
dent that the instant case could be one in which the Board
might defer the question of propriety of the discharge to
arbitration. See Collyer, supra. While the complaint also
raised an 8(a)(1) issue, this appeared to be closely related to
the 8(a)(3) allegation. Asked why the dispute had not been
processed as a contract grievance, Respondent stated that
it "has been our position from the beginning . . . that [the]
dispute should have been taken through the grievance pro-
cedure," but that neither Charging Party nor the affected
employee saw fit to file a grievance. General Counsel, on the
other hand, took the position that for various reasons the
dispute was not susceptible to resolution under the contrac-
tual grievance-arbitration machinery, including the ground
that the dispute raised a "jurisdictional" question as to
whether the dischargee was covered by Respondent's collec-
tive agreement with Charging Party (IAM) or by its agree-
ment with another union (Teamsters Local 299); that there
was no way to compel Teamsters to participate in a griev-
ance-arbitration proceeding; that Respondent did not in
fact raise the Collyer issue prior to trial and, therefore,
"waived" its right to raise that defense; and that no arbitra-
tor would have the authority to remedy the alleged 8(a)(1)
violation. Expressing the view that the Collyer doctrine, if
here applicable, would obviate the need to litigate further
the merits of the complaint allegations and to go into the
Company's defenses (including its defense as to business
conditions at the time of the affected employee's claimed
discharge or layoff)-thereby saving considerable time and
expense, I deemed it in the public interest to suspend the
hearing in order to resolve that issue. Prior to such suspen-
sion, all parties were afforded an opportunity to present
evidence bearing on the deferral issue.
For reasons to be stated (sec. IV, infra), I agree with
Respondent 's contention that this proceeding should be de-
ferred under the Collyer doctrine, pending arbitration. Be-
fore stating the basis of my conclusion , it is necessary to
summarize the relevant evidence heretofore presented-
consisting of documents , stipulations , admissions , and testi-
mony adduced through two General Counsel witnesses.'
III THE EVIDENCE
A. Contractual Relations Between
Respondent and the Two Unions Involved
Respondent has had contractual relations with Charging
Party (IAM) and Teamsters for many years. The subsisting
collective agreement with IAM covers various categories of
employees, including automative mechanics and "general
maintenance" men; the agreement with Teamsters covers
other groups, including drivers. Both agreements contain
union-security clauses requiring membership after 30 days
of employment and dues-checkoff provisions. Both also
contain clauses forbidding Respondent to discharge or dis-
cipline employees "without just cause." Additionally, each
provides for the filing and processing of grievances, includ-
ing those relating to discharges-the final step to culminate
in "final and binding" arbitration awards. The IAM agreee-
ment specifically provides that "in the event an employee or
Union representative believes he has been unjustly dealt
with or any provisions of this contract have been violated,
he shall proceed" to resolve the dispute under the grievance-
arbitration machinery. It also states that if "an injustice has
been done an employee, he shall be reinstated with backpay
for all time lost." 2
B. Discharge of Dominiak
Stanley Dominiak testified that he was hired on June 1,
1971, as a "maintenance" man. Prior to Christmas 1971, he
was laid off for a short period by his superior, Warehouse
Foreman Richard Dominick, . because "business [was]
slow;" he returned to work after New Year's 1972. At the
behest of IAM Business Representative Daniel, Dominiak
on February 16 signed an IAM membership application
and authorized a checkoff of IAM dues and welfare fund
contributions. Dominiak testified that, "a couple of days
later," Foreman Dominick told him that the Company did
not want him to "belong to the Union." According to Busi-
ness Representative Daniel, shortly thereafter Dominick
told hula that he had no right to sign up Dominiak and that
his IAM affiliation would "cost him his job." In accordance
i In view of suspension of the hearing in midst of General Counsel 's case,
Respondent did not, of course, have the opportunity to rebut testimony given
by General Counsel's witnesses (the alleged discriminatee, Dominiak, and
IAM Business Representative Darnel). In considering the Collyer issue, it is
unnecessary to pass upon credibility of the testimony adduced.
2It is unclear from the contractual wording whether the Employer (as
opposed to Union and employee) may initiate a grievance under the subsist-
ing agreement.
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Dominick's request, Daniel telephoned Personnel Di-
rector Garavaglia who told him that Dominiak "had joined
the wrong union" if he was to belong to any union at all.
The documentary evidence shows that, although beginning
with March it received billings for IAM dues and welfare
fund deductions from Dominiak's wages, Respondent ig-
nored these billings.
Dominiak further testified that, on July 27, Personnel
Director Garavaglia called him to his office, told him that
he "belonged" or "preferred" that he belong to Teamsters,
and asked him to sign a paper indicating that he was with-
drawing from "the Union" (presumably IAM). Dominiak
said he would "think this over." When on the next day (July
28) Dominiak informed Garavaglia that he "cannot sign"
the paper, the latter told him to "dress up and go home."
Later on the same day, Respondent dispatched a note to
Dominiak's home, advising Dominiak that he was "laid off
effective immediately."
IAM Business Representative Daniel testified that, on
December 7, representatives of his Union and of Teamsters
met with Respondent "to reach an understanding" as to
which union was to represent Dominiak. According to Dan-
iel, IAM took the position that Dominiak was performing
IAM "unit work," while Respondent claimed that he was
performing Teamsters work and should join Teamsters.
Daniel recalled Respondent referring to a prior (1969) simi-
lar dispute between IAM and Respondent, relating to a
porter (Beanum) which was the subject of a grievance insti-
tuted by IAM. That grievance, involving the right of Bea-
num to reinstatement with backpay, was withdrawn
"without prejudice," while pending before the Joint Arbi-
tration Committee (consisting of IAM representatives and
Respondent), in the step preceding referral of disputes for
"final and binding" determination by an "impartial arbitra-
tor." No agreement was reached at the December 7 meeting
as to which union should represent Dominiak.
At the end of December, Personnel Director Garavaglia
advised Daniel that the Company was ready to recall Do-
miniak. Daniel gave him Dominiak's telephone number, but
nothing was said as to which union would represent Domin-
iak. When Dominiak later saw Garavaglia and Foreman
Dominick (prior to Christmas), he was told to report to
work as a porter after New Year's. According to Dominiak,
Garavaglia at that time told him that he was to join the
Teamsters. After reporting to work, Dominiak did sign a
Teamsters dues-checkoff authorization at the request of the
Teamsters steward. Dominiak is still in Respondent's em-
ploy.
C. Respondent's Request for Deferral to the
GrievanceArbitration Machinery
As previously noted (sec. II), at the hearing Respondent
took the position that the dispute herein should be resolved
through the applicable contractual grievance-arbitration
procedure. Respondent asserted upon the record that if a
grievance is hereafter filed (1) it would waive any contractu-
al time limits for filing it; (2) in interest of expedition it
would also waive preliminary steps leading to arbitration;
(3) it would participate in the grievance-arbitration proce-
dure irrespective of whether the grievance is instituted by
the affected employee, IAM, or Teamsters; (4) if instituted
by the first two, it would serve due notice of the pendency
of the grievance-arbitration proceeding upon Teamsters to
enable the latter to intervene if it so desired; (5) it would
serve similar notice upon IAM if the grievance is instituted
by Teamsters under its collective agreement with Respon-
dent; and (6) it would accept and consider itself bound by
the arbitrator's award irrespective of the contract under
which the grievance is processed.
IV CONCLUSIONS
1. In Collyer Insulated Wire, supra at 842-843, the Board
majority announced the principle that "[w]hen the parties
have contractually committed themselves to mutually
agreeable procedures for resolvingtheir disputes during the
period of the contract . . . those procedures should be af-
forded full opportunity to function." While Collyer involved
a claimed unilateral action in violation of Section 8(a)(5) of
the Act, General Counsel in his brief properly notes that
"the Board has broadened the type of dispute which might
be deferred for prospective arbitration to include 8(a)(3)
discharge cases." As the Board stated in National Radio
Company, Inc., 198 NLRB No. 1:
Much of what was said in Collyer is equally applica-
ble here, although the issues presented are concededly
different. Collyer was, at bottom, a dispute over the
meaning of contractual terms and we placed great reli-
ance upon the fact that the alleged statutory violation
and the alleged contractual violation so coalesced that
resolution of either dispute in an appropriate forum
would, perforce, supply the resolution of the other dis-
pute. In this case, however, Respondent's contention
that our authority is improvidently invoked does not
rest on any presumed primacy of an arbitrator to inter-
pret an ambiguous or contested contract provision. Ab-
stention is urged on the straightforward basis that the
contract prohibits discipline for other than 'just cause'
and provides a mechanism for the quick and fair vindi-
cation of employee rights when that clause is violated.
Implicit in Respondent's argument, as we apprehend
it, is the assumption that the arbitration proceeding will
lead to a resolution of the dispute which will not be
"repugnant to purposes and policies of the Act."
If, as we believe, that is a tenable assumption, the
fundamental considerations are the same here as in
Collyer. Here, as there, an asserted wrong is remediable
in both a statutory and a contractual forum. Both juris-
dictions exist by virtue ofcongressional action and our
duty to serve the objectives of Congress requires that
we seek a rational accommodation within that duality.,
[Footnotes omitted.]'
In its subsequent Eastman Broadcasting decision,4 the Board
laid down the general principle that it "will apply the Collyer
3 See also Appalachian Power Company, 198 NLRB No 7. Cf. Kansas Meat
Packers, a Division of Arista Foods, Inc., 198 NLRB No. 2; Pauley Paving
Company, Inc, 200 NLRB No 124.
4 Eastman Broadcasting Company, Inc., 199 NLRB No. 58
CENTRAL CARTAGE COMPANY 341
rule where two basic conditions have been met: (1) the
disputed issues are, in fact, issues susceptible of resolution
under the operation of the grievance machinery agreed to
by the parties, and (2) there is no reason for us to believe
that the- use of that machinery by the parties could not or
would not resolve such issues in a manner compatible with
the purposes of the Act."
2. Applying, as I must, the foregoing principles, I con-
clude that both of the-enumerated conditions have been met
here, and, accordingly, that this case is one in which deferral
to arbitration is required.
As in National Radio, supra, the collective agreement be-
tween Respondent and Charging Party (lAM) contains a
clause prohibiting discharge or discipline "without just
cause." Also, as in National Radio, the agreement provides
for grievance-arbitration machinery which can be (indeed
under the contract here must be) invoked to resolve the
discharge dispute. Contrary to General Counsel, I see no
impediment to invoking the IAM contract machinery to
settle the basic issue posed by the complaint, i.e., whether
the affected employee (Dominiak) was terminated for IAM
adherence or for cause (layoff for economic reasons). In any
event, his contention that a `jurisdictional" issue is in-
volved, in that it is not clear whether the dischargee is cov-
ered by the IAM or Teamsters contract (supra, sec. II), is of
no moment in light of Respondent' s concessions at the trial
(supra, sec. III, C) that Respondent would participate in the
grievance-arbitration procedure and would accept as bind-
ing the arbitrator's award irrespective of whether the griev-
ance is processed under the lAM or Teamsters contract. Cf.
Eastman Broadcasting Company, Inc., 199 NLRB No. 58;
Urban N. Patman, Inc., 197 NLRB 1222. For similar rea-
sons, I see no justification in General Counsel's concern
that Teamsters may refuse to "become a party to [an] arbi-
tration" proceeding invoked by IAM. Assuming that Team-
sters elects not to participate, even though Respondent (as
it committed itself to do at the hearing) serves on Teamsters
due notice of the pendency of the arbitration proceeding,
any decision adverse to Teamsters would be a matter to be
resolved between Teamsters and Respondent-since, as it
must again be stressed, Respondent has agreed to be bound
by any arbitral award rendered in a proceeding instituted by
IAM.
3. To be sure, there are lurking in this case possible "rep-
resentation" questions, including a unit replacement issue-
i.e., whether Dominiak is properly in the unit represented by
IAM or Teamsters and whether one or the other union has
the contractual right to check off dues and pension contri-
butions. But these issues are not before me in this proceed-
ing-nor need they necessarily be before the arbitrator; the
sole issue before me, and the one I would have to decide if
I reached the merits, is whether or not Dominiak was dis-
charged for IAM affiliation or for cause-an issue which
under National Radio, supra, is cognizable before the arbi-
trator. In any event, as my colleague, Administrative Law
Judge Ohlbaum, recently observed in his Board-approved
Decision in The Newspaper Guild of Brockton, AFL-CIO
(Enterprise Publishing Company), 201 NLRB No. 118, it "is
no answer or defense to the obligation to arbitrate" that in
determining the basic issue submitted to him, the arbitrator
may have to consider questions "ancillary to the primary
inquiry." Furthermore, the most recent decision I could find
on the question of Board policy respecting application of
Collyer to representation cases indicates that the Board
would not frown upon such application if the arbitrator's
determination-as in nonrepresentation cases-"were con-
sistent with Board law or policy." Champlin Petroleum Com-
pany, 201 NLRB No. 9. Thus, the Board adopted the
following statement by Administrative Law Judge Rogosin
in Champlin Petroleum:
The argument that . . . Respondent maintains that
the issue is primarily whether the warehouse employees
may be considered an accretion to the bargaining unit,
a determination which the Board seeks to reserve to
itself, may pose somewhat of a problem. The Board,
however, has given no indication that it would not
honor a unit determination arrived at by means of
application or interpretation of the contract if such a
determination were consistent with Board law or poli-
cy. It cannot be assumed in advance that any such
determination by an arbitrator in interpreting the con-
tract would be in conflict with prevailing Board stan-
dards.5
4. General Counsel's contention (supra, sec II; br, pp.
4-6) that Respondent's failure to raise the Collyer issue until
the hearing "constitutes a waiver ... of its right to raise it"
as a defense is unpersuasive. While raising the issue at an
early stage in the proceeding (e.g., during investigation of
the charges or at least in the answer to the complaint) would
indeed have facilitated "quick and fair" resolution of the
issues , General Counsel has pointed to no authority to sup-
port his contention that pleading the "deferral defense"
affirmatively in the answer is a mandatory requirement. The
contrary is indicated in Tulsa-Whisenhunt Funeral Homes,
Inc., 195 NLRB 106, where the Board entertained the Col-
lyer defense even though raised for the first time in excep-
tions to an adverse decision on the merits by the
Administrative Law Judge. Moreover, although the Board
has already passed upon the Collyer issue in differing con-
texts, the Collyer policy has not yet been fully developed and
is still in the process of refinement. Finally, if Charging
Party and the affected employee had been seriously con-
cerned about expeditious disposition of the dispute, they
could have filed a grievance at the outset of the dispute, i.e.,
immediately after the discharge-a step they chose to ig-
nore.
Nor is there substance to General Counsel's claim (br., p.
6) that Respondent's failure to raise the Collyer defense until
the hearing constitutes evidence of "bad faith to prevent a
`quick and fair' means of resolving the dispute." On the
contrary, Respondent's good faith is demonstrated by the
5 Cf. Collyer, supra. See also Eastman Broadcasting, supra, Urban N. Pat-
man, supra, Combustion Engineering, Inc., 195 NLRB 909, relied on by Gener-
al Counsel (br., p. 2) is not inconsistent. It should be noted that Charging
Party (IAM) itself had invoked the grievance-arbitration clause in its con-
tract with Respondent to resolve a unit placement question involving an
employee (Beanum) in 1969 (supra, sec III, B).
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
many concessions it made at the trial ( sec. III , C) to relegate
the dispute to arbitration for expeditious disposition by an
impartial arbitrator. Thus, it has agreed to waive the con-
tractual time limits for filing the grievance, to dispense with
preliminary steps to bring the issue before an arbitrator, to
participate in and be bound by an arbitration proceeding
whether instituted under the IAM or Teamsters collective
agreement , and, of course, to abide by any award rendered.6
Indeed, the very fact that Respondent has now "offered to
proceed to final and binding arbitration, without qualifica-
tion," removes any doubt as to its intentions. Champlin
Petroleum, supra, 201 NLRB No. 9.
5. Finally, I reject General Counsel's contention (br.,p. 4)
that the Board should not defer this proceeding to arbitra-
tion because the complaint alleges an 8(a)(1) violation
which an arbitrator "would not have authority" to consider
or remedy. The evidence adduced by General Counsel (su-
pra, sec. III, B) demonstrates that the complaint allegation,
that Respondent "coercively" induced "employees" to with-
draw from Charging Party (IAM) and threatened them with
discharge if they failed to do so, is predicated on
Respondent's interpretation of its agreements with IAM
and Teamsters that Dominiak-the target of the alleged
8(a)(1) conduct-was covered by the Teamsters contract.
That contract (like the IAM contract) contains a union-
security clause requiring membership after 30 days of em-
ployment. Assuming the correctness of Respondent's inter-
pretation, Respondent's "threats" amounted to hardly more
than expressions of opinion that Dominiak properly be-
longed to Teamsters and, therefore, that he should not join
IAM. It is this interpretation-similar to that Respondent
took back in 1969 involving employee Beanum-that evi-
dently prompted its officials' statements that joining IAM
might "cost" Dominiak his job. As in Appalachian Power
Company, 198 NLRB No. 7, "[w]hat emerges from all of the
above is that, although the issue . . . is couched in unfair
6 Although Respondent has agreed to participate in a grievance filed on
behalf of the alleged wronged employee (Dominiak) by either JAM or Team-
sters, logic and fairness would dictate that JAM (not Teamsters) process the
grievance under the lAM contract. To begin with , JAM filed the unfair labor
practice charges on behalf of Dominiak because of claimed discrimination
against him for affiliating with JAM. Moreover, since Dominiak had resisted
Respondent 's efforts to require him to join Teamsters and he ultimately
joined the latter ostensibly only to enable him to return to work , the interests
of both Teamsters and Respondent are arrayed against those of Dominiak.
See Kansas Meat Packers, supra. Pauley Paving Company, Inc., 200 NLRB
No. 124.
labor practice terms, that issue is essentially a dispute about
the meaning of relevant contract terms." Moreover, also as
in Appalachian Power, Respondent's conduct must be
"viewed in the light of [its] long history of bargaining with
the Union." Accordingly, "this case must be distinguished
from those in which a history of such animus or pattern of
action subversive of Section 7 rights has been alleged" that
the Board would exercise its discretion not defer to arbitra-
tion. National Radio, supra. See also Collyer, supra. In any
event, it would appear that the peripheral issue in question,
central to and derived from the issue to be arbitrated (i.e.,
the discharge), does not of itself justify perpetuation of this
proceeding.
I conclude that the disputed issues are properly resolvable
under the grievance-arbitration procedures the parties
themselves have contractually elected to establish. More-
over, "it appears reasonably probable that arbitration will
put the [alleged] statutory infringement finally at rest in a
manner sufficient to effectuate the policies of the Act" (Ap-
palachian Power, supra). In accordance with customary
practice in cases of this type, jurisdiction should be retained,
however, for purposes of assuring that the matters in dispute
will be resolved in a fair and regular manner consistent with
the standards set forth in Spielberg Manufacturing Company,
112 NLRB 1080.
Upon the foregoing findings and conclusions, the record
heretofore developed, and pursuant to Section 10(c) of the
Act, I hereby recommend the following:
ORDER'
The complaint is dismissed in its entirety except that
jurisdiction is hereby retained solely for the purpose of en-
tertaining an appropriate and timely motion for further con-
sideration upon a proper showing that (a) the dispute has
not been resolved by the grievance-arbitration procedure,
(b) the grievance or arbitration procedures have not been
fair and regular or have reached a result which is repugnant
to the Act, or (c) the decision of the arbitrator is not wholly
dispositive of the issues in this case.
r In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall , as provided in Sec. 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings , conclusions, and Order , and all objections thereto shall be deemed
waived for all purposes.