Great Scott Supermarkets, Inc.

National Labor Relations Board - Board Decisions

Oct 16, 1973

206 N.L.R.B. 447 (N.L.R.B. 1973)

GREAT SCOTT SUPERMARKETS, INC. 447
Great Scott Supermarkets, Inc. and Eugene Gipson
and William P. Goodman . Cases 7-CA-9462(1) and
7-CA-9462(4)
October 16, 1973
tractual procedure established for the handling of
grievances. Because the Respondent has not pre-
served by an exception its previously held contrary
position, our review of the Administrative Law
Judge's Decision does not extend to this issue. Ac-
cordingly, his conclusion is adopted pro forma.
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On April 30, 1973, Administrative Law Judge Mor-
ton D. Friedman issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief. The Respondent filed
limited cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.
Contrary to the Administrative Law Judge, we find
that the General Counsel's motion to amend the com-
plaint to include an additional discriminatee, Philip
Mascaro, must be denied. Although the General
Counsel was aware of the facts upon which he prem-
ised his requested amendment to the complaint well
before the close of the hearing, he did not file his
motion until after the hearing was closed. This is not
a case in which the issue raised by the requested a-
mendment was fully litigated at the hearing. There-
fore, in the absence of any unusual circumstances
which may have excused the General Counsel's fail-
ure to amend the complaint in time for this issue to
be litigated at the hearing, we must overrule the Ad-
ministrative Law Judge's approval of the General
Counsel's motion to amend the complaint. Cf. Cham-
pion Pneumatic Machinery Co., 152 NLRB 300.
We note that the Respondent, in its answer to the
complaint, requested that the complaint be dismissed
without reservation of jurisdiction because the under-
lying grievances had been resolved by the Union's
decision not to seek arbitration. The Administrative
Law Judge concluded that this defense was without
merit as the rationale of neither Collyer Insulated
Wire' nor Spielberg Manufacturing Company 2 envi-
sioned deferral by this Board to grievance resolution
not equatable to arbitration but pursuant to the con-
' 192 NLRB 837.
2 112 NLRB 1080.
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 Or-
der of the Administrative Law Judge as modified
below and hereby orders that the complaint herein be,
and it hereby is, dismissed; provided, however, that:
Jurisdiction of this proceeding is retained for the
limited purposes set forth in the recommended Order
of the Administrative Law Judge as modified below.
Delete the words "and amendment" following the
word "complaint" from the said recommended Order.
MEMBER FANNING, dissenting:
For reasons stated in my dissenting opinion in Col-
lyer Insulated Wire, 192 NLRB 837, and-subsequent
cases involving that novel doctrine, I dissent from the
majority's insistence that these individuals are not en-
titled to have this Board determine in the first instance
whether or not their Employer violated this statute by
discharging them during the course of a strike.
Particularly where, as here, their Union has already
determined that they have no reasonable hope of vin-
dication in an arbitration proceeding, it seems to me
their invocation of their statutory right to seek redress
of alleged wrongs in this forum should not be denied.
DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Administrative Law Judge: Upon
a charge filed in Case 7-CA-9462(l) by Eugene Gipson,
herein called Gipson, on April 13, 1972, and upon a charge
filed in Case 7-CA-9462(4) filed by William P. Goodman,
on April 20, 1972, the Acting Regional Director for Region
7 of the National Labor Relations Board, herein called the
Board, issued a consolidated complaint on November 14,
1972, on behalf of the General Counsel of the Board against
Great Scott Super Markets, Inc., herein called the Respon-
dent, alleging violations of Secion 8(a)(1) of the National
Labor Relations Act, as amended, (29 U.S.C. Sec. 151, et
seq.), herein called the Act. In its duly filed answer, the
Respondent, while admitting certain allegations of the com-
plaint, denied the commission of any unfair labor practices.
Pursuant to notice, a hearing in this case was held before
me at Detroit, Michigan, on various days between January
206 NLRB No. 111
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
22 and February 9, 1973. All parties were represented I and
were afforded full opportunity to be heard, to introduce
relevant evidence, to present oral argument and to file
briefs. Oral argument was waived. Briefs were filed by coun-
sel for the General Counsel and the Respondent. Upon
consideration of the entire record herein and upon my ob-
servation of each witness appearing before me, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Michigan corporation, maintains var-
ious places of business in the State of Michigan where it is
engaged in the retail sale and distribution of groceries,
meats and related products. Respondent maintains its prin-
cipal office and place of business and warehouse at the city
of Ferndale in the State of Michigan, which Ferndale place
of business is the only facility involved in this proceeding.
During the year ending September 25, 1972, a representa-
tive period, the Respondent received gross revenues in ex-
cess of $500,000 from the retail sale of groceries, meats, and
other related products. During the same period, Respon-
dent purchased goods and materials of a value in excess of
$100,000, of which goods of a value of more than $50,000
were shipped to Respondent's places of business in Michi-
gan directly from points located outside the State of Michi-
gan.
It is admitted, and I find, that the Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 337, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Ind.,
herein called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. BACKGROUND, PLEADINGS, AND ISSUES
The Respondent and the Union, which represents a unit
of all of the Respondent's warehousemen, truckmen, and
garage employees, at Respondent's Ferndale, Michigan, fa-
cility, have had a contractual relationship for many years.
The most recent bargaining agreement between the Respon-
dent and the Union became effective on June 1, 1970, with
an expiration date of May 31, 1973.
This current agreement contains, among other clauses,
paragraphs limiting reasons for discharge or suspension to
I At the opening of the hearing counsel for Local 337 , International Broth-
erhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America,
asked for leave to intervene although the said labor organization is not a
party to this proceeding . Leave to intervene specially was granted on the basis
that the collective-bargaining agreement between the said Union and the
Respondent was inextricably woven with the issues of the proceeding and,
furthermore , the Respondent in its defense , had advanced the argument that
the entire matter with which this proceeding is concerned should be deferred
to arbitration in accordance with the procedures set forth in the said bargain-
ing agreement.
"just cause," grievance and arbitration procedures, a section
of which delineates the Respondent's authority to discipline
and/or discharge in the event of an unauthorized or "wild-
cat" strike, a section which defines and limits the authority
of shop stewards, and a section which deals with
Respondent's authority in the event members of the unit
employ self-help instead of following the grievance and ar-
bitration procedures. The details of these paragraphs of the
agreement are set forth, infra.
In consequence of what some of the Respondent's em-
ployees considered an unfair disposition of a grievance of
garage employee Merle Eisel, some of the employees, upon
the alleged urging of certain stewards and assistant stew-
ards, engaged in an admittedly wildcat strike beginning on
April 7, 1972,2 which strike was continued for some days
thereafter by some of the employees. The Respondent,
reacting to this strike action, discharged a number of em-
ployees, allegedly in violation of section 3 of the grievance
and arbitration provisions of the bargaining agreement
which, as noted above, defines the Respondent's authority
to discipline in the event of a wildcat strike.
The consolidated complaint alleges that on April 7, dur-
ing the first 24 hours of the wildcat strike, the Respondent
discriminatorily discharged employees Lawrence Basaj,
Merle Eisel, Ben Frazzitta, Eugene Gipson (one of the
Charging Parties), William Goodman (the other Charging
Party), Allen Hall, Hershel Phipps, David Rennie, Thomas
Schulz, Hughles Spear, and Ronald Szumski, in violation of
Section 8(a)(1) of the Act in that said discharges were con-
trary to the provisions of article VIII, section 3, of the
collective-bargaining agreement which follows:
Section 3. It is further agreed that in all cases of any
unauthorized strike, slow-down, walkout or any unau-
thorized cessation of work, the Union shall not be lia-
ble for damage resulting from such unauthorized acts
of its members. While the Union shall undertake every
reasonable means to induce such employees to return
to their jobs during any such period of unauthorized
stoppage of work mentioned above, it is specifically
understood and agreed that the Company during the
first twenty-four (24) hours of such unauthorized work
stoppages shall have the sole and complete right of
reasonable discipline short of discharge. Such Union
member shall not be entitled to or have any recourse
to any other provisions of this Agreement.
The complaint further alleges that by discharging em-
ployees Edward Scott and Herman Simerly on April 8,
1972, effective April 7, 1972, the Respondent thereby dis-
criminated against these employees in violation of Section
8(a)(1) of the Act because said discharges were also contrary
to the provisions of the said article VIII, section 3, of the
bargaining agreement as above set forth. The theory of the
General Counsel's case is that the Act was violated because
the Respondent imposed the penalty of discharge on em-
ployees participating in the wildcat strike at a time during
the first 24 hours of the strike or effective during that period
of time, when the collective=bargaining agreement provided
that the only authority Respondent possessed was the au-
thority to impose reasonable discipline short of discharge
2 All dates herein are in 1972 unless otherwise designated.
GREAT SCOTT SUPERMARKETS, INC.
during that period.
The Respondent 's answer, although admitting the dis-
charges, denies as to Basaj, Eisel , Frazzitta , Phipps, Rennie,
Schulz, and Spear that said employees were discharged
within the first 24 hours of the strike and avers, affirma-
tively, that the said employees were discharged more than
24 hours after the start of the illegal and unauthorized walk-
out at a time when they were still on strike and that such
discharge was authorized by the bargaining agreement as
follows:
Section 4. After the first twenty-four (24) hour peri-
od of such stoppage , however, the Company shall have
the right to immediately discharge any Union member
participating in any unauthorized strike, slow-down,
walkout or any unauthorized cessation of work, and
such Union member shall not be entitled to or have any
recourse to any other provisions of this Agreement.
The answer further avers that, in any event, because the
strike was a wildcat strike unauthorized under article VIII,
section 1, of the agreement which reads as follows:
Section 1 . It is mutually agreed that all grievances,
disputes or complaints arising under and during the
terms of this Agreement shall be settled in accordance
with-the procedure herein provided and that there shall
at no time be any strikes , tie-ups of equipment, slow-
down , walkouts or any other cessation of work through
the use of any method of lockout or legal proceedings,
except as specifically agreed to in other superseding
sections in this Contract.
Every effort shall be made to adjust controversies
and disagreements in an amicable manner between the
Employer and the Union. In the event that any griev-
ance cannot be settled in this manner , the question may
be submitted by either party for arbitration as hereinaf-
ter provided.
The Respondent had the right to summarily discharge all of
the employees named in the complaint prior to the expira-
tion of the first 24 hours of the wildcat walkout pursuant to
article XI, section 2, of the bargaining agreement which
reads as follows:
Section 2 . Any individual employee or group of em-
ployees, who willfully violate or disregard the arbitra-
tion and grievance procedure set forth in Article VIII
of this Agreement, may be summarily discharged by
the Employer without liability on the part of the Em-
ployer or the Union.
With regard to Gipson , Goodman , Hall, and Szumski, the
answer defends on the ground that these employees were
either union stewards or alternate stewards who not only
participated in the unauthorized walkout but either instigat-
ed the walkout or did nothing to seek to prevent it or to
persuade striking employees to return to work . Accordingly,
the answer avers, these employees were subject to immedi-
ate discharge pursuant to the provisions of article IX of the
contract, the pertinent part which is as follows:
Job stewards and alternates have no authority to
take strike action, or any other action interrupting the
Employer's business, except as authorized by official
action of the Local Union. The Employer recognizes
these limitations upon the authority of job stewards
and their alternates,and shall not hold the Union liable
449
for any unauthorized acts. The Employer in so recog-
nizing such limitations shall have the authority to im-
pose proper discipline , including discharge , in the event
the shop steward has taken unauthorized strike action,
slow down or work stoppage in violation of this Agree-
ment.
As to employee Szumski, the Respondent defends on the
further ground that at a grievance hearing between the
Union and Respondent , it was determined that Szumski's
level of participation in the illegal walkout was less than the
others and he was reinstated by the Respondent, without
backpay, by agreement dated July 15 signed by all parties.
As affirmative defenses the Respondent 's answer alleges,
in substance , that the complaint should be dismissed (1) as
to all employees except Szumski and Simerly because the
Union, after grievance hearings held by the Union, de-
termined that the grievances filed by the employees regard-
ing the discharges were without merit and declined to
process the grievances through arbitration ; (2) as to Szum-
ski for the reasons heretofore set forth , namely the settle-
ment agreement pursuant to which Szumski was reinstated
without backpay , and (3) as to Simerly, because as the result
of a civil action by the Respondent against the employees
involved herein , Simerly and the Respondent exchanged
releases pursuant to which Simerly agreed not to file griev-
ance charges or complaint against the Respondent and the
Respondent dropped Simerly as a party defendant in the
civil damage action.
As noted above, the complaint in this case was issued on
November 14, 1972, upon charges filed on April 13 and 20.
Between these dates, events occurred which are directly
related to the issues herein. Pursuant to the grievance and
arbitration procedures of the collective-bargaining agree-
ment, all of the dischargees filed grievances . The grievance
procedures are as follows:
Section 2 . (A) Should any grievance, disputes or
complaints anse over the interpretation or application
of the contents of this Agreement, there shall be an
earnest effort on the part of the parties to settle such
promptly through the following steps.
Step 1 . By conference between the aggrieved em-
ployee, the shop steward , or both , and the foreman of
his or her department.
Step 1.-a. Before proceeding to Step 2 below, it
shall be the responsibility of the aggrieved to reduce
any grievance to writing on the regular grievance form
provided for by the Local Union.
Step 2 . By conference between an official or officials
of the Union and the Manager, or representative of the
Company delegated by the manager , or both.
Step 3 . In the event the last step fails to settle a
complaint, either party upon proper request can ask
that the complaint be referred for settlement to an
arbitrator.
The President and/or Executive Board of the Local
Union shall have the right to determine whether or not the
grievance or complaint is qualified to be submitted for
arbitration by the Union.3
3 Underlining supplied.
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(B) In the choosing of an arbitrator, either party
may submit a list to the other, said list to contain the
names of responsible citizens, any of which is qualified
to handle such arbitration.
The decision of the arbitrator shall be rendered with-
out undue delay and shall be final and binding on both
parties.
The arbitrator shall have the sole and exclusive pow-
er and jurisdiction to determine whether or not a par-
ticular grievance, dispute, or complaint is arbitrable
under the terms of this Agreement. In the event that it
is determined that such grievance dispute or complaint
is not arbitrable, the Union shall have the right to strike
in support of its position on all such non arbitrable
matters.
The cost of arbitration shall be borne equally by the
Employer and the Union.
(C) Grievances must be taken up promptly and no
grievance will be considered or discussed which is pre-
sented later than five (5) days after such has happened.
The first three steps of the foregoing procedure were fol-
lowed by the Union and the Respondent. By reason thereof,
the Acting Regional Director did not issue the complaint
until November 14, declining to do so until the parties had
either disposed of the grievances via the grievance proce-
dure route, set forth above, or refused to do so. Beginning
in July, the Union, through a panel appointed pursuant to
the underlined portion of step 3 of the grievance procedure,
above, began investigatory hearings on each of the griev-
ances filed by the dischargees. As a result of these panel
hearings and recommendations made by the panel to the
Union's executive board, the Union decided not to proceed
to arbitration and notified each of the discriminatees named
in the complaint herein (with the exceptions of Szumski and
Simerly whose grievances were considered settled or with-
drawn) giving the reasons therefor. These letters, all of
which were identical, and all with the exception of the letter
to the alleged discriminatee Rennie, were dated either No-
vember 3 or November 16, in pertinent part stated:
There was little likelihood that further processing of the
grievance would result in your return to work or that
the Union could in any manner prevail in an arbitra-
tion of the grievance, therefore, arbitration of your
grievance is denied.
The foregoing letters were signed by Walter Schuler, sec-
retary-treasurer of the Union.
It was after this notification to the alleged discriminatees
that the Acting Regional Director issued the consolidated
complaint herein on November 14, 1972.
It should be noted that after the Union's decision not to
submit the grievances to arbitration, the Respondent did
not request arbitration. Instead, the Respondent, answering
the complaint took the position that the Union's decision
not to proceed to arbitration was a final disposition of the
matter and pleaded this as an affirmative defense in its
answer as heretofore described. Also, in furtherance of its
position that the Union decision not to proceed to arbitra-
tion was a final disposition of the matter, on December 14,
4 See Dubo Manufacturing Corp, 142 NLRB 431
1972, the Respondent made a motion to dismiss the com-
plaint on the same grounds as set forth in the affirmative
defenses contained in its answer to the complaint. As au-
thority for such dismissal Respondent cited the case of Col-
lyer Insulated Wire, 192 NLRB 150. This motion was
referred to an Administrative Law Judge other than me. On
December 22, 1972, the Administrative Law Judge issued
his opinion and order denying the motion on the ground
that the Collyer case was not dispositive of the issues herein
in that the panel hearings conducted by the Union did not
constitute an arbitration award pursuant to the terminal
provisions of the grievance procedure; there is no contractu-
al provision for some form of intermediate bipartite arbitra-
tion or intermediate bipartite determination whether to
proceed to arbitration and, moreover, there was no such
bipartite arbitration proceeding or determination in fact.
The said opinion further stated that this was purely an
intraunion investigatory proceeding and was not the sort of
final disposition envisaged by Collyer. The Administrative
Law Judge further stated that deferral was being requested
by the Respondent not to arbitration but to a claimed ad-
justment of the grievances affecting the right of individual
employees who did not consent or seek assistance under
provisions of the statute designed for their protection, and
that such a disposition, whether to defer under the princi-
ples set forth in Collyer, should be made only after a full
hearing on the merits.
Following this denial of its motion, the Respondent, on
January 9, 1973, made and served upon the parties a request
to the Board for special permission to appeal the ruling of
the Administrative Law Judge. On January 19, 1973, the
Board, by telegraphic order, denied leave to the Respondent
to appeal the Administrative Law Judge's ruling. On the
same day, January 19, 1973, the Respondent addressed a
letter request to the secretary-treasurer of the Union which
demanded arbitration of the discharge grievances of all of
the alleged dischargees named in the complaint. This, then,
was the position of the case when the matter came on for
hearing on January 22, 1973.
At the opening of the hearing the Respondent, before the
General Counsel opened his case, requested permission to
make a motion, which permission was granted.
Respondent's counsel then moved that the case be dis-
missed and the matter deferred to arbitration under Collyer
by reason of the Respondent's demand for arbitration upon
the Union made on January 19, 1973. Counsel for the Gen-
eral Counsel opposed this motion strenuously and gave as
his grounds therefor the fact that the Respondent had nev-
er before demanded arbitration despite the fact that many
months had passed since the filing of the grievances and the
charges in this proceeding. Furthermore, the General Coun-
sel opposed on the basis that the Union was not a party to
this proceeding. Furthermore, the General Counsel charac-
terized the Respondent's motion as a "last ditch" attempt
to keep the Board from asserting jurisdiction in this case,
citing again that the parties to the contract had a good 6 to
8 months to go to arbitration and they did not do so. Fur-
thermore, counsel for General Counsel argued that if the
case were tried and a full record was made it would become
apparent that there was conflict between the alleged discri-
minatees and the Union which would, in effect, disqualify
GREAT SCOTT SUPERMARKETS, INC. 451
the Union from representing these employees at an arbitra-
tion proceeding. At this point, counsel for the Union who
was present in the hearing room was requested by the Ad-
ministrative Law Judge to make a statement as to his client's
position on the matter. Counsel for the Union then stated
on the record that the grievances of the dischargees were
heard by the Union in its internal grievance procedure and
the Local Union decided not to arbitrate the grievances
because there were serious problems with respect to con-
tract interpretation that arose over the discharge of these
individuals and it was the Union's feeling in general that it
would be extremely difficult, if at all possible, to prevail in
arbitration. Union's counsel further stated that he was un-
aware of the request of the Respondent for arbitration and
that the first he heard of it was when informed of the
Respondent's demand by counsel for Respondent just prior
to the opening of the hearing. He further informed all pre-
sent that he was present that morning by reason of a subpe-
na served upon him and also by reason of the fact that he
was instructed by the Union to appear in order to protect
the employees involved and to do what would be necessary
in order to see that they were fully represented. However,
counsel for the Union stated that Respondent under the
terms of the collective-bargaining agreement had the right
to make the demand for arbitration, that there was no time
limit in the contract which would prevent the Respondent
from making such demand, and that, in his opinion, the
Union was obliged to comply with the demand and to go
to arbitration.
Answering the General Counsel's argument that because
the Union had already decided that insofar as arbitration
was concerned, at least, the grievances of the alleged dis-
chargees had no merit, and the General Counsel's further
charge that the record would develop that there was antago-
nism between the dischargees and the Union, the Union's
counsel stated that there was no real impediment to the
Union representing these employees; that many of the dis-
chargees remained members of the Union; that the Union's
position would be no different than that of counsel in other
cases representing a client despite the fact that, perhaps,
counsel had informed the client that there was little or no
merit to the client's case.
After hearing argument of counsel for the General Coun-
sel, counsel for the Respondent, and counsel for the Union,
the motion to defer to arbitration was, itself, deferred be-
cause -in my opinion at that stage of the proceeding there
were not enough evidentiary facts before me upon which I
could decide, in the light of all that was stated in the argu-
ments of counsel, whether to defer to arbitration under
Collyer or to deny deferral to arbitration. It was therefore
ruled that a full record on the merits should be made.'
On January 23, 1973, while the hearing was in process,
counsel for the Union addressed a letter to counsel for the
Respondent in which counsel for the Union stated that the
Union decided it would go to arbitration for all of the
individuals named in the complaint and suggested that the
procedure for choosing an arbitrator should be handled
5 The Respondent filed a request for leave to appeal the ruling not to defer
to arbitration at that time. This request for leave to appeal was denied by the
Board.
through the American Arbitration Association under rules
of that body. Thus, it is established that the Respondent and
the Union are now willing to proceed to arbitration pur-
suant to the arbitration provisions of the collective-bargain-
ing agreement heretofore set forth. -
As the hearing on the merits progressed over a period of
days, it became apparent that there were factual as well as
legal questions presented by the case and that, in addition,
the resolution of some of these questions would certainly
involve interpretation of a number of the articles of the
collective-bargaining agreement between the Respondent
and the Union as heretofore set forth. Finally, there came
a time during the presentation of the Respondent of its case
on the merits when a very critical question of procedure was
raised. This question concerned a subpena served by the
Respondent upon the Union for the production by the
Union of the originals of any reports of grievance panel
hearings in the cases of the 13 alleged discriminatees which
may have been filed by its grievance panel with the Union.
The Union's counsel then made a timely motion to quash
the subpena on the ground that if the Board decided to defer
this matter to arbitration, the revelation of the reports of
grievance panel hearings could prejudice the cases of the
discriminatees when and if their cases go to arbitration.
Counsel for the General Counsel joined in this motion to
quash for reasons given by counsel for the Union.
Respondent opposed the motion to quash on the basis
that Respondent was informed and believed that the panel
report contained full summaries of testimony given by each
of the alleged discriminatees in the present hearing, which
testimony relates specifically to the defenses raised by the
Respondent in the present hearing. General Counsel and
the Union also stated that inasmuch as Respondent had
representatives present at the panel hearings, the Respon-
dent was as much aware of the testimony given by the
discriminatees at those hearings as was the Union.
The motion to quash was granted on the ground that the
alleged discriminatees might be prejudiced in their cases
before an arbitrator, should the matter be deferred by the
Board to arbitration. At the same time, it was noted that if
the case were not deferred to arbitration these records of the
Union were relevant to the Respondent's defense and per-
haps necessary for the purposes of credibility on the basis
of prior inconsistent statements. Thus, the dilemma of
whether to proceed with the case on the merits or to decide
at that point whether to defer to arbitration was presented
to me. On the one hand there was the duty to protect the
alleged discriminatees from possible prejudicial revelation
of certain matters which could be presented at an arbitra-
tion proceeding. On the other hand by refusing the material
in question to the Respondent and by proceeding with the
case on the merits, the Respondent could have been preju-
diced.
Accordingly, and by reason of the fact that at that stage
of the proceeding sufficient testimony and documentary
evidence had been introduced by both parties to establish
an almost complete record on the merits of the case, it was
ruled that no further testimony would be taken on the merits
of the proceeding with regard to the General Counsel's
complaint and the Respondent's answer except as to arbi-
trability. From that point in the trial, testimony was taken
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
basically on whether the alleged antagonism between the
Union and the discriminatee herein was so great as to pre-
clude the possibility that the Union could fairly and ade-
quately represent these employees at an arbitration hearing.
The testimony with regard to this aspect of the proceeding
will be discussed below. Finally, when both sides had pre-
sented fully the testimony and documentary evidence with
regard to this question of the qualifications of the Union to
represent the employees in arbitration proceeding, the hear-
ing was closed with the understanding that if it was decided
that the matter should not be deferred to arbitration, the
hearing would be reopened to permit all parties to complete
their cases on the merits under the Act. However, immedi-
ately before the hearing closed the Charging Parties, Good-
man and Gipson, were permitted to state on the record their
positions. Gipson and Goodman stated on the record that
they did not wish to proceed to arbitration by the Union.
Thus, the only issue presented at this juncture is whether
the Board should defer this matter to arbitration under
Collyer and the cases decided by the Board with respect to
arbitration since Collyer or whether the hearings should be
reopened and the case decided on the merits.
IV. THE ISSUE OF DEFERRAL THE CONTENTIONS, THE EVIDENCE, DIS-
CUSSION, AND CONCLUSIONS 6
Simply put, the Respondent's contention with regard to
deferral is that under Collyer deferral to arbitration is re-
quired where the conduct complained of is also a violation
of the collective-bargaining agreement. The arbitrator, by
interpreting that agreement, will resolve the underlying un-
fair labor practice issue. And Collyer also requires, of
course, that there is a grievance procedure in which both
parties are required to participate and which culminates in
binding arbitration. The Respondent argues that all of these
elements are presented in the case at bar. The complaint
alleges that the discharge was in violation of a section of the
bargaining agreement, the defenses are based upon various
sections of the bargaining agreement and require interpreta-
tion of the agreement in order to dispose of the underlying
unfair labor practices. Moreover, the contract interpreta-
tion is a function particularly within the expertise of arbitra-
tors.7 Accordingly, the Respondent argues, the Board
should defer ruling on this matter to an arbitrator pursuant
6 The Respondent has nowhere in the record abandoned the position taken
in its answer to the complaint herein to the effect that the decision of the
Union not to proceed to arbitration after the panel hearings was a final
disposition within the meaning of the Collyer Insulated Wire case, supra.
However, because the Respondent now apparently principally hinges its
defense upon its demand for arbitration and the Union's consent thereto, this
original defense is not discussed in this Decision However, in any event, I
concur in the opinion of the Administrative Law Judge who originally denied
Respondent's motion to dismiss on the basis that the panel hearings and the
result thereof constituted final disposition The panel hearings and the
Union's decisions were merely intraunion decisions to determine whether the
Union would proceed further to arbitration with the grievances filed by the
alleged discrimmatees herein and were neither the result of a bipartite tribu-
nal chosen to dispose of the grievances nor did they constitute final disposi-
tions such as would result from an arbitrator's award It is therefore
concluded that neither within the rationale of Collyer or of Spielberg Manu-
facturing Co., 112 NLRB 1080, does this defense of the Respondent have
merit.
7 See National Tea Co, 198 NLRB No 62, and cases cited therein
to the arbitration provisions of the collective-bargaining
agreement between the Respondent and the Union.
Counsel for the General Counsel makes a three-pronged
attack upon; the foregoing contention of the Respondent
and argues that the Board should not defer to arbitration
because (1) the individual Charging Parties and alleged dis-
criminatees opposed deferral to arbitration; (2) the
Respondent's request for arbitration and motion for defer-
ral were not timely made, and the Board should adopt a
waiver doctrine to the effect that the time of the filing of the
answer should be the latest time when the Respondent can
raise a Collyer defense; and (3) the interests of the Charging
Parties and other discriminatees are not in substantial har-
mony with the interests of the Union and that, therefore, the
Union is not qualified to represent these individuals in an
arbitration proceeding.
With regard to the General Counsel's argument that de-
ferral to arbitration should not be granted because the indi-
vidual Charging Parties and alleged discriminatees oppose
such deferral, it should be noted that the General Counsel,
himself, admits that there should not be a broad rule that
deferral under Collyer can be vetoed by the Charging Par-
ties or alleged discriminatees who were not parties to the
contract. However, General Counsel argues that the Board
has indicated that Collyer deferral is dependent upon the
likelihood that arbitration will resolve the dispute "in a
manner consistent with the standards of Spielberg."8 The
General Counsel further argues that one requirement of
Spielberg is that all parties agree to be bound by acquies-
cence in the arbitration proceeding and that since such a
lack of acquiescence is present in the instant case on the part
of the Charging Parties, deferral should not be granted. In
further support of this argument, the General Counsel cites
two cases decided by the Board some years ago. The first
case is that of Wertheimer Departmert Stores, 107 NLRB
1434, in which case deferral was denied because arbitration
had been carried out over the opposition of the individual
involved. It should be noted, however, that the Board in that
case emphasized the fact that its authority was such that it
did not have to be bound by arbitration and that it was not
policy, at that time, for the Board to defer to arbitration. It
should also be noted that Wertheimer Department Store case
was decided some time before the Spielberg Manufacturing
Company case, and, therefore, the Board at that time had
not formulated policy or rationalization with regard to de-
ferral to arbitrators awards.
The other case cited by the General Counsel in support
of his contention is the case of Hershey Chocolate Co., 129
NLRB 1052, where again deferral was denied because the
arbitration had been carried out over the opposition of the
individual involved. However, in Hershey the rationale of
the Board was not only that the individuals involved had
objected to the arbitration proceeding in the first instance
but also that the interests of the Union which had arbitrated
the case on behalf of the individual union members were
adverse to interests of the members.
In the case at bar, the Charging Parties filed grievances
and requested arbitration at about the same time they filed
charges with the Board. They, originally consented to arbi-
8 Citing National Radio Co., 198 NLRB No 1,
GREAT SCOTT SUPERMARKETS, INC. 453
tration and became disenchanted with this process only
after the Union , subsequent to the July mtraunion panel
hearings, decided that the alleged discnminatees ' chances
for successful prosecution of their cases before an arbitrator
were too slim to warrant the Union to go to arbitration.
Accordingly , there was no initial lack of consent on the part
of the discriminatees to be represented by the Union.
Additionally, it would seem to thwart the Board policy
which Collyer has established to permit individual alleged
discriminatees to refuse to go to arbitration where the con-
tract between their bargaining representative and their em-
ployer provides for the same merely because the individuals
involved have some imagined grievance against the Union.
It would seem that the policy would and should be that
where the individuals object to arbitration because the in-
terest of their bargaining representative is adverse to the
individual's interest, deferral to arbitration should not be
had. This, then, is the real issue and will be treated hereun-
der in the discussion of the qualifications of the Union to
represent the employees involved herein.
As noted, the second prong of the General Counsel's
attack upon the feasibility of deferral to arbitration under
the circumstances of this case deals with the timeliness of
the Respondent's demand upon the Union for arbitration
made only 3 days before the hearing herein and
Respondent 's motion to defer made at the opening of the
hearing. Counsel for the General Counsel contends that the
motion by the Respondent for deferral to arbitration of the
subject matter of this proceeding at the opening of the hear-
mg herein was untimely and suggests that the time for the
filing or the making of such a motion would be at the time
of the filing of the answer in a proceeding such as the instant
one.
Set forth, above, in this Decision, is a chronological se-
quence of events leading to the ultimate issuance of the
complaint herein . As there set forth , the Charging Parties
filed the charges in this proceeding and the request for
grievance hearings soon after their discharge by the Re-
spondent. The Respondent willingly participated in the
grievance proceedings. Therefore, the Acting Regional Di-
rector deferred all proceedings before the Board until such
time as he could ascertain what the outcome of the griev-
ance and arbitration proceedings would be . It was only in
November 1972, that the Union notified the employees who
were discharged that it did not , believe the chances of suc-
cess in arbitration would be very good and that therefore the
Union had decided not to proceed with the further steps of
the contractual arbitration provisions.
After the Acting Regional Director issued the complaint
herein, upon such notification to the alleged discriminatees,
the Respondent, on the day before it filed its answer, made
and served a written motion to defer the matter to arbitra-
tion on the ground that the Union's disposition of the griev-
ances was a final determination of the rights of the
employees who were discharged.. Although the Respondent
might have been mistaken with regard to its application of
Collyer in that instance, and, indeed, although its motion
was ultimately denied by an Administrative Law Judge, the
Respondent had evidently, from all that is shown in the
record herein , made such motion in good faith, believing it
to- be a valid - legal defense to the ' complaint . Immediately
upon receipt of the opinion denying its motion to defer and
its motion for special permission to appeal the Trial
Examiner's opinion on its motion to defer , the Respondent
served upon the Union a demand for arbitration pursuant
to the contractual arbitration provisions . This was on Fri-
day afternoon , January 19, 1973 , immediately preceding
Monday, January 22, when the trial herein opened. As soon -
as the trial opened , the Respondent made its motion to defer
to arbitration based upon Collyer and upon its demand
upon the Union for arbitration. As noted, the Union there-
after consented to go to arbitration.
Under these circumstances, it cannot be found that the
Respondent was guilty of laches nor did the Respondent
waive any of its rights . From the facts as related above, it
cannot be found that the Respondent has been playing a
"cat and mouse game" with the rights of the alleged discri-
minatees or with regard to the procedures of the Board. It
made its first motion to dismiss in a timely fashion and
although it may have been mistaken with regard to the legal
basis for its motion, it cannot be determined from anything
appearing herein that the motion was frivolous and raised
only for the purpose of delay.
Moreover, the Board's Rules and Regulations , Section
102.28, provides:
The right to make motions or to make objections to
rulings upon motions shall not be deemed waived by
the filing of an answer or other participation in the
proceedings before the administrative law judge [or the
Board].
The preceding section of the Board's Rules and Regula-
tions would seem to give the Respondent the right to make
its motion to defer at the time that it did so.
Finally, the General Counsel does not cite any case decid-
ed since Collyer with regard to the timeliness of motions to
defer within the Collyer policy. However, the Board has
given some indication of its thinking on this subject in a
recent case . In the case of MacDonald Engineering Co., 202
NLRB No. 113, the Board refused to entertain a defense by
the Respondent in that case that the proceeding should be
deferred to arbitration under Collyer. The Board's refusal to
defer was based on the fact that the issue was not raised
either in the Respondent's answer, at the hearing before the
Administrative Law Judge, or, in fact, at any time until it
filed its exceptions to the Decision of the Administrative
Law Judge and the matter came before the Board. However,
in refusing the Respondent's motion made in its exceptions
to have the dispute referred -to arbitration, the Board stated
as follows:9
As noted, although the subject of the availability of
machinery for arbitration of this matter as it related to
Kaminski was broached at the hearing, at no time did
the Respondent specifically assert that the Administra-
tive Law Judge should have deferred. Furthermore, the'
record is unclear regarding the arbitrability of the
grievance by an employee such as Kaminski , and just
what powers an arbitrator would have under the con-
tract . While these - questions may have been answered
had'such issues been litigated at the hearing, this was
9Supra atp 3
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not the case . We therefore conclude that the record
evidence before us is insufficient for a finding that
deferral is warranted.
The foregoing quotation would seem to indicate that had
the Respondent in the cited case raised the question of
deferral before the Administrative Law Judge at the trial
and asserted that the Administrative Law Judge should-
have deferred , such assertion would have been timely and
the Administrative Law Judge would then have been
obliged to consider the matter of deferral.
Under all of the circumstances heretofore recited , there-
fore, I find and conclude that the contention of counsel for
the General Counsel that the Respondent did not make its
motion to defer in a timely fashion is without merit . I do not
find that there has been any waiver , any laches , or lack of
good faith.
The third and final argument made by counsel for the
General Counsel in support of its contention that the
Respondent 's motion to defer should not be granted is one
which presents a difficult issue ; whether the Union, under
all of the circumstances in this case , and in the light of
testimony given at the hearing herein , is qualified and
should be permitted by the Board to represent the alleged
discriminatees in proceedings before an arbitrator. Counsel
for the General Counsel argues that the interest of the
Charging Parties and the other alleged discriminatees are
not in substantial harmony with the interests of the Union.
Counsel for the General Counsel cites the fact that the
Union has declined to go to arbitration in these cases but
is reluctantly being dragged to the arbitration table by the
Respondent . He further contends that the record shows that
there is antagonism between the Union and the Charging
Parties and other alleged discriminatees on the issue of their
discharge as well as events leading up to the discharge.
Moreover, states the General Counsel , the record shows a
lack of identity of interest between the Union and the al-
leged discriminatees . Because counsel for the General
Counsel contends that the record supports these foregoing
arguments , it is necessary to discuss some of the salient
factors brought out in testimony and other 'evidence pre-
sented at the hearing with regard to whether the interests of
the Charging Parties and other discriminatees and the
Union are indeed so divergent that the Union cannot, in-
deed, properly represent these employees at an arbitration
proceeding regarding the subject of their discharge.
In relation to the foregoing , Eugene Gipson , one of the
Charging Parties, who is also a dischargee and who, at the
time of the wildcat strike which was the alleged cause of the
discharge , was a shop steward within the unit represented
by the Union among the Respondent's employees, testified
to a number of instances which , at first blush, would tend
to show that the Union had failed to properly represent the
unit employees from the time of the execution of the con-
tract which is part of the subject matter of this proceeding.
Gipson testified, in substance, that a number of the items
negotiated by the Respondent and the Union during the
negotiations period before the execution of the agreement
were not included in the agreement which the Union signed,
that a number of items upon which there was no agreement
were included in the agreement which the Union signed.
However, upon being confronted with the agreement itself,
and upon thorough cross-examination , in every instance
cited by Gipson in his direct testimony he ultimately admit-
ted that (a) the items which he testified were negotiated and
agreed to but not included in the agreement are, in fact,
included in portions of the agreement of which he had not
been aware or which he had not understood ; (b) the items
which were in the agreement which he claimed were not
negotiated by the parties or agreed upon by the parties were,
in fact, either not in the agreement or were agreed upon by
the parties ; and (c) certain items which were agreed upon
but which were not included in the agreement were matters
of practice between the parties which had been established
over the years and to which they are still adhering.
As an example of Gipson's allegations which were later
retracted by him on cross-examination , Gipson testified
that there was nothing in the new agreement providing the
employees with one and one half times the regular rate of
pay for all work performed over 32 hours in a work week
when a holiday falls on a Saturday. However , on being
confronted with language in the present contract , Gipson
ultimately admitted that , in fact, the contract does provide
for overtime after 32 hours when a holiday falls on a Satur-
day and moreover provides for overtime after 32 hours
when a holiday falls on a Sunday . This example shows how
in virtually every instance Gipson reversed himself. Thus, it
cannot be concluded, that the Union failed to give the em-
ployees or the Respondent whom it represents proper repre-
sentation with regard to the negotiations execution and
administration of the current bargaining agreement.10
Both Gipson and William P. Goodman , the Charging
Parties herein, testified to the alleged inefficiency and al-
leged failure by Robert Hanna, a union business agent as-
signed to service the unit of Respondent 's employees. They
testified that because of Hanna's failure to properly repre-
sent the unit employees , a petition to remove Hanna was
circulated and presented to Walter Schuler, secretary-trea-
surer of the ' Union on October 19, 1971. However , Schuler
refused to act upon this petition stating that the unit of the
Respondent 's employees had already had two other busi-
ness agents whom the Respondent 's employees complained
of and the Union could not keep changing business agents
constantly . Gipson admitted on cross-examination that the
employees did not file intraunion charges against Hanna in
accordance with the Union 's bylaws and constitution. Fur-
ther , Goodman testified that Hanna had Goodman re-
moved as alternate steward for the drivers and Gipson
testified that he had originally been shop steward of both
the garage and,the warehouse but that Hanna had removed
him from his duties with regard to the garage. Thus, if
Gipson's and Goodman 's direct testimony were to be given
full credence it would tend to show there was at least some
antagonism between Gipson and Goodman on the one
hand, and Hanna on the other . However, as the testimony
unfolded and as details were brought out, it must be con-
cluded that Gipson and Goodman's testimony with regard
to Hanna 's failure to represent the employees and Hanna's
alleged avenging of them because of the petition to remove
10 This is not to reflect in this respect upon Gipson 's basic credibility. It
is apparent that he either did not understand the wording of parts of the
agreement or did not comprehend their impact.
GREAT SCOTT SUPERMARKETS, INC. 455
him actually results in an opposite conclusion.
With regard to the alleged failure of Hanna to represent
the employees of the Respondent and to process grievances,
both Gipson and Goodman testified to a number of occa-
sions upon which, allegedly, Hanna either neglected or re-
fused to process the grievances which Goodman and
Gipson presented on behalf of the unit employees.
Thus, Gipson testified that he had received quite a few
complaints about overtime. However, on cross-examina-
tion, Gipson virtually admitted that the overtime problem,
and most especially the rotation of overtime, had been the
subject of negotiations between Hanna and Respondent
representative Steve Cutler and that the Union achieved
satisfactory resolution of this problem through Hanna.
Another complaint raised by Gipson was that the Union
was not properly representing employees who were injured
on the job and who desired to go home as a result of such
injures. However, in these instances too, I find and con-
clude that the Union, through Hanna, did represent the
employees. Thus, there was a grievance with regard to an
employee named Revitzer who was injured on the job, went
to a clinic for treatment and then went home without per-
mission. He was not paid for the time he missed as a result
of his going home. Steven Cutler, Respondent's director of
warehousing and transportation, considered the injury too
minor to excuse Revitzer and, as a result, Revitzer was not
paid for the time he missed. Revitzer thereafter filed a griev-
ance which was processed by Hanna in a discussion be-
tween Hanna, Cutler, Gipson, and the grievant. As a result
of this grievance discussion, Revitzer was paid for the time
he missed. Thus, in this respect, it must be concluded that
Hanna did, indeed, vigorously represent the employees in
the unit. This was true not only as to the Revitzer grievance
but as to other grievances filed by employees who were
injured or who grieved with regard to rotation or assignment
or pay for overtime.
With regard to testimony given by Charging Party Good-
man, the record reveals an almost equal resolution of griev-
ances with which Goodman was involved or had
knowledge. Goodman testified that in one instance the Re-
spondent was sending out for road service calls the fleet
superintendent, a supervisor, instead of a unit mechanic. It
was claimed that this was in derogation of the right of a
mechanic working in the garage to perform the road service
work. However, in addition to the fact that no particular
grievance was ever filed in this matter, the testimony of
Cutler shows that the matter was brought directly to
Cutler's attention by Hanna and that the matter was re-
solved by Cutler's agreeing to send out a mechanic to ac-
company the fleet superintendent when road service work
become necessary. Cutler did admit that there was another
informal grievance taken up by Hanna which was not neces-
sarily resolved i0avor of the employees. This was a request
by the employees that there be an afternoon mechanic on
duty. Hanna vigorously suggested to Cutler that such a
mechanic be appointed. Cutler informed Hanna that there
was not sufficient work to justify the hiring of an afternoon
mechanic and, furthermore, there was no requirement for
such in the bargaining agreement. However, this matter was
never filed as a formal grievance and there is no question
but that Hanna did aggressively seek to persuade Cutler to
hire the afternoon mechanic.
Also, Goodman testified with regard to another alleged
unreso'Ived grievance in which Goodman objected to the
son of the Respondent's security director pumping gas and
washing trucks and who was not a member of the Union.
However, the record shows, that'Hanna did speak to Cutler
about this matter and vigorously protested to him but that
the matter was not resolved because the young man in-
volved left the Respondent's employ to return to school.
Accordingly, there was nothing further for Hanna to pro-
cess by way of a grievance.
Goodman had other complaints with regard to safety of
the trucks which Goodman and others drove in their em-
ploy with the Respondent: One related to missing steps
which were somehow knocked off the trailers which made
it difficult or dangerous to use the same. Another was that
there were no platforms to stand on when hooking up the
trailer. A third complaint was that vehicles were going out
overloaded. With regard to the first two complaints, name-
ly, the lack of steps and the fact that there was no safe place
to stand in hooking up trailers, both of these matters were
taken up by Hanna with Cutler who worked out the matter
with the garage superintendent whereby steps were immedi-
ately replaced if they were broken off and a substance was
placed on top of the gas tank which made the tank less
slippery to stand on when attaching trailers to trucks. In
neither of these events were formal grievances filed. Theo-
retically, Hanna was not required to come into the picture
unless such formal grievances were filed. Accordingly, it
must be concluded that Hanna went beyond the mere car-
rying out of his duties and did more than he was required
to do under union requirements and practice. With regard
to the overloading, Goodman testified that he once refused
to take out a truck which he thought was overloaded and
was told by Respondent that if he did not take it out he
would be given the worst equipment possible to drive. In
testifying, however, Goodman admitted he never filed a
grievance with regard to this threat by the Respondent.
Therefore, there is no proof that the matter was ever
brought to the attention of Hanna or anyone else in the
Union responsible for such matters.
Thus, it is concluded that the allegation that the Union
either through Hanna or any other official refused or ne-
glected to process grievances or fully represent the employ-
ees in the unit was largely dissipated either by the testimony
of Goodman or Gipson upon their cross-examination which
revealed, not necessarily that they did not intend to be
truthful in their allegations, but, rather, were mistaken or
did not correctly remember what actually had occurred. It
is concluded that the majority, if not all, of the complaints
and grievances filed by either of these two individuals o° by
other members of the unit, were vigorously processed by
Hanna and by the Union and resulted in favorable out-
comes on behalf of the employees involved, especially in
those matters in which Hanna took an active part.
With regard to Goodman's testimony that Hanna re-
moved him from his job as alternate steward in the truckdri-
ver group, the record shows that Goodman was appointed
an alternate steward by the regular steward, Jesse Ander-
son, only 3 or 4 months before the wildcat strike which is
the subject of this proceeding. Goodman testified that Han-
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
na himself approved of this appointment. Thereafter, some-
time shortly before the events herein, according to Good-
man, Hanna told Goodman that the latter was no longer to
act as alternate steward. According to Goodman this action
by Hanna was taken for the reason that Goodman was too
vigorous in attempting to persuade Hanna to process griev-
ances. However, if Hanna did tell Goodman that the latter
was removed from his position as alternate steward, such
action by Hanna was never communicated to Steve Cutler,
the company representative with whom most, if not all, of
grievances and complaints were discussed by Hanna and
the stewards. Additionally, besides Goodman's testimony to
the effect that he had been removed by Hanna, none of the
other Respondent's employees who were called by the Gen-
eral Counsel testified as to any knowledge of such action on
the part of Hanna against Goodman. With regard to
Gipson's testimony that he was removed as steward over the
garage employees and permitted to remain only as steward
of the warehouse employees, Gipson's testimony was rather
equivocal. However, a careful reading of that testimony
leaves the impression that it is more than likely that
Gipson's removal as steward over the garage employees
came as a result of a vote taken among the garage employees
or, possibly, among both the garage employees and the
warehouse employees and was not the result of a direct
authoritarian action on the part of Hanna.
Thus, I find and conclude that from the record presented
in this case, there is not established any deep antagonism on
the part of Hanna against either Gipson or Goodman or, for
that matter, any other employee involved in this proceeding
as a dischargee or alleged discnminatee. It should also be
noted, in connection with the Union's entire handling of the
grievances of these employees regarding their discharge as
a result of the wildcat strike, that these grievances were
immediately processed by the Union and that Hanna did
not take any part in either the panel hearings held in July
to investigate the merits of the grievances nor did Hanna,
so far as the record reveals, participate in any manner in
making the decision of the Union with regard to the merits
of the grievances of these dischargees. Thus, even if Hanna
did harbor some malice against Goodman, Gipson, or any
other ex-employee of the Respondent, his complete separa-
tion from any determination with the Respondent, his com-
plete separation from any determination with regard to
these employees after they were discharged, reflects that the
Union was more than careful in securing information from
other individuals aside from Hanna and was, therefore, not
influenced in any way by any feelings which Hanna might
have harbored against any of these employees."
Goodman additionally testified that on the afternoon of
the day on which his panel hearing was scheduled, which
hearing was not held that day because Goodman arrived
late from out of town, Goodman spoke to Jerome Coleman,
the union counsel and member of the panel.12 According to
11 In disposing of these allegations of lack of representation by both the
Union and Hanna of the employees involved in this proceeding, I have not
repeated all of the testimony with regard to all of the grievances allegedly or
refused processing by Hanna However, the results reached herein would
have been the same inasmuch as all of these matters were resolved'by the
testimony of the parties in much the same manner and with the same result.
Goodman, during that discussion, Goodman asked a num-
ber of questions with regard to the panel hearings and the
outcome thereof. Goodman testified that Coleman told him
that Coleman did not see any way possible that the Union
would arbitrate Goodman's case or any of the cases. Ac-
cording to Goodman, Coleman told him that it would be left
up to Coleman to make the decision as to whether to go to
arbitration and that Coleman further explicated by stating
that the panel would have to advise the executive board not
to go to arbitration because this involved approximately 30
people and at $1,000 a person they were talking about
$30,000 expense between the Company and the Union. On
cross-examination, Goodman again repeated that Coleman
told him that Coleman did not feel there was enough evi-
dence to arbitrate these cases and that he would recommend
against the arbitration because of the expense involved.
However, Coleman testified at some length with regard to
the 2-hour conversation he had with Goodman on that day.
Coleman brought out the fact that at the time he spoke to
Goodman the panel hearings were just starting and, as a
matter of fact, only one hearing as to one of the dischargees
had been had up to that point. Therefore, according to
Coleman, he could never have told Goodman at that time
that the hearing showed that there was not enough evidence
to proceed to arbitration on any of the grievances of any of
the dischargees. In fact, Coleman testified, most of the time
spent in conversing with Goodman was in explaining to
Goodman how the panel operated, how it was set up, how
the members were selected, what their duties were, and what
recommendations they were empowered to make to the
Union's executive board. Coleman further testified that he
explained to Goodman that arbitration was quite similar to
a court proceeding and explained the time and the cost
necessary for processing a grievance through arbitration. At
that time, the cost of the possible arbitration of the griev-
ances of all of the dischargees did come up and Coleman
said that if the Union or the Company took the position that
there were to be approximately 30 separate arbitrations,
Coleman could foresee the cost as being very great and that
it could involve as much as $1,000 per grievance. However,
he denied that he mentioned the cost as the reason or possi-
ble reason that the Union would not go to arbitration.
I conclude and believe that both Coleman and Goodman
sought to be complete in their testimony as each recalled
this conversation. However, after carefully reviewing the
testimony, and after having observed both of the witnesses
on the stand, I have come to the conclusion that although
Goodman was sincere in his testimony he was somewhat
confused as to the context in which certain remarks were
made by Coleman and that the version of the conversation
as related by Coleman who was clear, concise, and obvious-
ly attempting to give as accurate an account as possible, is
the more credible of the versions. I therefore find and con-
clude that Coleman did his best to inform Goodman of the
entire matter and that there is no indication on the record
sufficient to prove that Coleman was prejudiced in any
manner against Goodman or any other dischargee or could
not fairly represent them in an arbitration proceeding
12 It should be noted, in connection with Goodman 's failure to appear at
the scheduled time for his panel hearing, that Goodman was given another
'date and his hearing was eventually given to him by the union panel.
GREAT SCOTT SUPERMARKETS , INC. 457
brought by the Union with regard to their discharge griev-
ances.
Goodman further testified that the grievances with regard
to the discharges were not promptly handled by the Union
within the time limits provided- therein in the collective-
bargaining agreement. However, the testimony of
Respondent's Vice President William Horowitz and corre-
spondence between Horowitz and Schuler, secretary-trea-
surer of the Union show that the grievances were handled
expeditiously and within the time limit provided in the bar-
gaining agreement.
With regard to the panel meetings held in July 1972, there
was some intimation by Goodman that these proceedings
did not comply with accepted standards and that there were
procedural defects in the hearings. One of these defects
alluded to was that the employees were not permitted to be
represented at the hearings by counsel. However, William
Johnson, a union business agent who was appointed to chair
the panel hearings, testified that the panel hearings were
standard procedure under the agreement with the Respon-
dent and under other contracts between the Union and
other employers. The members of the panel were Johnson,
Coleman, and another business agent of the Union, not
Hanna. Additionally, Johnson testified, without contradic-
tion, that any employee-member of the Union whose griev-
ance is being heard by the panel is permitted to bring any
witnesses or any other material necessary to support his
grievance. Additionally, if the employer involved desires to
present his side of the case he may do so through whatever
representative the employer chooses. The grievants are noti-
fied of the hearing in timely fashion so that they may pre-
pare for the hearing. Johnson has been the chairman of the
panel for a period of approximately 4 years and this has
been the procedure carved out in all cases. The reason the
grievants are not generally permitted to bring in their own
attorneys is because the Union represents them and the
nature of the panel hearing is investigative. Moreover, the
business agent involved in the particular grievance, in this
case Hanna, is not permitted to appear at the panel hearings
in order to avoid arguments between the agent and the
employer or anyone else attending the hearing.
It must be emphasized that this is an intraunion hearing
and the purpose of the panel hearing has been set forth a
number of times heretofore in this Decision. In the light of
Johnson's testimony, I find and conclude that there was
nothing irregular in the procedure of the panels which
would in any way be prejudicial to the employees involved
herein or which would indicate that the Union is so preju-
diced or that its interests are in such direct conflict with that
of the employees involved that the Union through Coleman,
its counsel, cannot represent these employees in the arbitra-
tion proceeding.
There remains one other incident testified to by a witness
for the General Counsel which was offered for the purpose
of showing that the Union did not properly represent all of
the employees at any stage of the proceedings. David Ren-
nie was a truckdriver who was allegedly discharged improp-
erly on the date the unauthorized strike began. Rennie,
therefore, was one of the grievants who was scheduled to
appear before the panel in July 1972. Rennie's hearing was
scheduled for July 6, and Rennie had received notice to that
effect. However, after his discharge, Rennie had,obtained a
position as an over-the-road truckdnver with another firm
and on July 5 was in Connecticut, unable to return to De-
troit in time for the hearing. Accordingly, at approximately
10 p.m. on the night of July 5 he called his wife by telephone,
informed her of the matter, and asked that she call the
Union andinform the Union that Rennie would be unable
to attend the hearing as scheduled and that the hearing,
therefore, should be postponed. Rennie's wife testified as to
the foregoing and further testified that the following morn-
ing at approximately 10 to 10:30 a.m. she called the Union
and spoke to Johnson, whom she mistakenly testified was
the doorman of the Union. She explained Rennie's situation
and asked for another date. She testified that Johnson an-
swered that he could not grant an adjournment, that the
Union was anxious to wind up these matters, and that what-
ever testimony was given at Rennie's scheduled hearing
would have to suffice for the purpose of disposing of the
matter.
Johnson testified that he did speak to Mrs. Rennie shortly
before the hearing was scheduled and explained to her that
the hearing could not be called off at that late date; that the
panel would hear from the Respondent at that time; and
Rennie should contact the Union at his earliest convenience
so a date could be set for Rennie to appear before the panel
and give his version of the grievance.
Rennie testified that he arrived home on July 7 and pro-
ceeded to the union hall on Saturday morning, July 8. At
that time he spoke to Walter Schuler, the secretary-treasurer
of the Union. He told Schuler that he thought he had re-
ceived a "pretty raw deal" in that his hearing had not been
rescheduled at the request of his wife but that he further told
Schuler that he really was not concerned with the hearings
or anything else except that he wanted to learn the identity
of the persons who had given signed statements to the Re-
spondent to the effect that Rennie had threatened them
during the wildcat strike. Rennie further testified that on
Friday morning, July 7, he attempted to contact Johnson
but could not reach Johnson. However, Rennie further ad-
mitted that he never attempted to call either Coleman, the
counsel for the Union who acted as panel secretary, or
Johnson at any later date to request a hearing before the
panel so that he could present his side of the case.
It is apparent, from all of this testimony, and Rennie's
admissions as to what his real interest in the hearing was,
that Rennie was not interested in getting a hearing and only
interested in getting the information with regard to the two
people who allegedly gave statements against him.
Additionally, Johnson testified that both William Good-
man and another alleged discriminatee, 'Ben Frazzitta, had
,requested the panel for adjournments of their panel hear-
ings for the reason that they would be unable to attend.
They were granted such adjournments and the hearings for
both -of these employees were rescheduled. Certainly, under
these circumstances, and in view of the fact thatboth Good-
man and Frazzitta were in the hearing room atthe time that
Johnson testified and did not contradict Johnson's testimo-
ny to this effect, it is concluded that the testimony of Mrs.
Rennie with regard to Johnson's refusal to reschedule a
hearing for grievant David Rennie is not accurate and that
she evidently misunderstood the import of Johnson's state-
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments to her.
The foregoing represents , in somewhat summary form,
the testimony and other evidence presented by the General
Counsel to sustain , his contention that the Union cannot
properly represent the dischargees in grievance proceedings
before an arbitrator . In further support of his contention,
counsel for the General Counsel points out that Coleman,
the Union's counsel, testified in support of the Union's
position that, therefore , he would be incapable of repre-
senting the employees before an arbitrator . General Coun-
sel points out that Coleman volunteered this testimony at
the behest of the Respondent and that the purpose of this
testimony was to clear the Union 's conduct during the strike
and that Coleman 's primary interest was to protect the
Union's "good name" and demonstrated "a lack of ^ the
adequate motivation that is needed to prosecute the griev-
ances through arbitration ." Furthermore, the General
Counsel contends that the Union 's conduct during the peri-
od of the wildcat strike was such as to demonstrate that the
Union was anxious only to protect itself against damage
suits rather than protect the employees.
There is no direct evidence as to what the Union 's atti-
tude was during the wildcat strike period . It is true that the
Union did attempt to persuade the employees who walked
out during that period to return to work and refused to
authorize the strike . However, under the contract with the
Respondent, the Union was obliged to conduct itself in this
manner.13 The fact that the Union did not condone the
wildcat strike was in conformity with the contract provision
which provided that grievances should be processed
through the grievance procedure and not by the means of
self-help on the part of the employees . Thus the Union's
conduct in this respect cannot be said to disqualify it nor
does it demonstrate that there is a lack of adequate motiva-
tion needed to process the grievances , through arbitration.
This is also true with regard to the conduct of the Union's
counsel , Coleman . The fact that Coleman testified with re-
gard to the Union's conduct in administering the panel
hearings and with regard to his conversation with Good-
man, heretofore related , does not demonstrate a lack of
willingness or motivation on behalf of the alleged discrimi-
natees whose grievances he would have to represent before
an arbitrator.
Counsel for the General Counsel admits that it is possible
that under all the circumstances of this case and in the light
of the testimony he presented , the record does not establish
a per se case of inability to represent . I find and conclude
that neither does the record present sufficient evidence to
infer that the Union is possessed of an inability to represent
its employee -members. The General Counsel cites as a per
se case the case of Kansas Meat Packers, 198 NLRB No. 2.
However, in that case the Board decided not to defer to
arbitration, despite contractual provisions therefore, be-
cause the dischargees whose discharges were alleged to have
been in violation of the Act were discharged at the request
'of a union representative for having engaged in conduct
displeasing to such representative . Furthermore, the union
in that case had never filed a grievance on behalf of the
13 See for example Eazor Express, Inc v. Teamsters, 357 F.Supp. 158 (D C
Pa)
dischargees nor did it make any investigation of the reasons
for the discharges. The Board held,14 that under these cir-
cumstances "we conclude that it would be repugnant to the
purposes of the Act to defer to arbitration in this case, as
to do so would relegate the Charging Parties to an arbitral
process authored, administered and invoked entirely by
parties hostile to their interest."
In the instant case, the Union did file grievances on be-
half of the discharged employees herein and, moreover, did
not in any manner whatsoever seek to have these employees
discharged. In fact, by seeking to induce them to go back
to work and to quit their unauthorized strike, it demonstrat-
ed a desire to prevent such discharges.
It is true that the Board, in National Radio Company, 198
NLRB No. 1, the leading case on deferral to arbitration
where an alleged unlawful discharge was the basis of the
complaint, held that the deferral was predicated upon the
Board's finding that the interests of the Union and employ-
ee were in "substantial harmony" and that there was, there-
fore, no ground for assuming that the employees' interests
would be inadequately represented under contractual pro-
cedures. While in the case at bar there is demonstrably a
feeling of some antagonism toward the Union on the part
of, at least, Goodman and Gipson, the Charging Parties,
there is no substantial evidence that the Union bears any
antagonism toward any of the dischargees including Good-
man and Gipson. While the dischargees might have been
unhappy with the Union's original determination after the
panel hearings not to proceed to arbitration of the griev-
ances, there is no evidence that the Union's decision was
made with malice or even a lack of desire to represent these
employees or that the Union's interest conflicted in any way
with the interest of these dischargees. This case, it would
seem, does not present a clear-cut demonstration that the
Union cannot represent the employees properly within the
rationale of the Board's decision in the Kansas Meat Packers
case, supra. It is concluded that the facts in the present case
as heretofore set forth and as brought out by the testimony
with regard to the Union's ability to represent these employ-
ees fall more nearly within the Board's rationale in National
Radio Company, supra.
I find that despite possible misgivings on the part of the
employees, or at least on the part of Gipson and Goodman,
that the Union did not decide their cases correctly after the
panel hearings, there is not presented a situation of such
substantial disharmony so as to preclude the Union from
adequately representing these employees. The fact that the
Union decided, at one stage of the proceeding, that the
grievants would not fare well before an arbitrator under the
facts presented at the panel hearings as delineated by the
various provisions of the collective-bargaining agreement,
does not establish that the Union cannot represent these
employees in the arbitration proceedings with which it has
declared itself wilting to proceed. The Union's position and
especially the position of Coleman, who will undoubtedly
represent the Union at any arbitration proceedings, is not
unlike that of an attorney who informs his client that he
does not think that the client has a good case but who
nevertheless, upon the client's urging, proceeds to litigate
14 At page 3
GREAT SCOTT SUPERMARKETS, INC. 459
the client's matter to the best of his ability. This is, indeed,
the Union's duty and there is no satisfactory showing in the
record presented that the Union cannot or will not perform
its duty to the best of its ability.
There is one last technical contention of the General
Counsel with regard to the arbitrability of the discharges of
the alleged discriminatees. The General Counsel points out
that Szumski and Simerly's grievances were settled by the
signing of releases and, in the case of Szumski, by his rein-
statement without backpay. Counsel for the General Coun-
sel argues that under established arbitration law the
arbitrator should find that these two cases are no longer
arbitrable and have been settled. Thus, he argues, only the
Board proceeding remains with respect to these two individ-
uals. However, the record adequately demonstrates that
both the Respondent's demand upon the Union to arbitrate
the discharges and the Union's consent thereto, list among
the discharges to be arbitrated those of Szumski and Simer-
ly. It is not for me to prejudge here what the arbitrator might
do with regard to the disposition of the cases of these two
individuals. Moreover, the cases of both Szumski and Sim-
erly, as well as those of all of the other employees, would
be subject to future review by the Board under the Order
which will follow this Decision. Additionally, the arbitra-
tion proceedings themselves, with regard to all of the discri-
minatees, would be subject to further review by the Board
and to further charges, pursuant to the Board's decision in
Spielberg Manufacturing Company, 112 NLRB 36.
V. THE MOTION TO AMEND THE COMPLAINT
Subsequent to the hearing in this case, on March 6, 1973,
counsel for the General Counsel moved to amend the com-
plaint to add an additional discriminatee, Philip Mascaro.
The amendment would add to paragraph 12 of the com-
plaint, a third paragraph entitled 12(c) which alleges, in
substance, that on April 10, 1972, contrary to the provisions
of section 3 of article VIII of the collective-bargaming
agreement referred to in paragraph 10 of the complaint.
Respondent terminated the employment of Mascaro for
having engaged in the wildcat strike.
Mascaro was not named in the original complaint or in
the original charges filed herein by Gipson and Goodman.
In fact, the charge relating to Mascaro was filed by Mascaro
on January 22, 1973, the day the hearing started herein. In
support of his motion, counsel for the General Counsel,
while admitting that the Mascaro charge was filed more
than 6 months after the alleged unlawful discharge and,
further admitting that if the Mascaro charge had to stand
alone, it could not do so by reason of the 6-month limitation
for issuance of complaints contained in Section 10(b) of the
Act,15 nevertheless argues that the Mascaro discharge arose
out of the same situation as did the discharge of the other
alleged discriminatees mentioned in the consolidated com-
plaint herein. Thus, Mascaro participated in the unauthor-
15 The proviso of Section 10(b) of the Act bars the issuance of a complaint
where it is "based upon an unfair labor practice occurring more than 6
months prior to the filing of the charge with the Board and the service of a
copy thereof upon the person against whom such charge is made .
ized strike on April 7, 1972, he was discharged on April 10,
1972, although he participated in the strike less than 24
hours and therefore was discharged in violation of section
3, article VIII, of the collective-bargaining agreement. He
further argues that all of the other dischargees were dis-
charged because of their participation in the said unauthor-
ized walkout and the theory of the complaint is that they
were discharged in violation of the same section of the
collective-bargaining agreement and, therefore, the com-
plaint should be amended to include Mascaro under Board
precedent in such situations.16
The Respondent argues against granting the motion, ba-
sically upon the ground that in the cases cited by counsel
for the General Counsel as precedent for his motion, the
Charging Party, in the original complaint, and in the am-
endments thereto, were the same but that in the instant
motion to amend Mascaro is not the same Charging Party
as were the original Charging Parties upon whose charges
the consolidated complaint herein was issued. Furthermore,
argues the Respondent, the theory of counsel for the Gener-
al Counsel as to the alleged basis for finding the discharge
of Mascaro to be discriminatory is different than the theory
with regard to the other discriminatees set forth in the con-
solidated complaint. Supporting this argument the Respon-
dent states that the General Counsel's theory with regard to
the other discriminatees was either (a) that the Respondent
discharged the alleged discriminatees during the first 24
hours of the strike and therefore violated the foregoing sec-
tion of the collective-bargaining agreement or (b) fired some
of them the next day, as of the first day of the strike, and
therefore violated the said section of the collective-bargain-
ing agreement. In the case of Mascaro, however, the Re-
spondent further argues, Mascaro was discharged on April
10, some 3 days after the commencement of the strike and
was discharged, according to the theory of the General
Counsel, because he had engaged in such strike although he
engaged in the strike for only part of the first 24 hours of
the strike and Respondent thereby violated the said section
of the bargaining agreement. Lastly, the Respondent argues
that, as noted before, Mascaro was not discharged on the
same day or days as were the other alleged discriminatees.
Although on the surface Respondent's argument may
seem to have some appeal, I find after due consideration
that the differences without any real distinction. According-
ly, on the basis of the precedent cited by the General Coun-
sel and on my finding that the discharge of Mascaro arose
out of the same strike and allegedly in violation of the same
section of the collective-bargaining agreement, the motion
to amend is hereby granted on the basis of the precedent
cited by the General Counsel. In making this decision, I
have considered the probability that had Mascaro's dis-
charge been litigated at the hearing herein or had the Gener-
al Counsel made a motion at the hearing in this case to
amend the complaint to include Mascaro, I would have
granted such motion without the filing of a new charge.
Accordingly, under all of the circumstances the fact that the
charge with regard to Mascaro was filed more than 6
months after the event which it alleges was violative of the
16 Exber, Inc, d/b/a El Cortez Hotel, 160 NLRB 1442, 1446; Central Power
& Light Co, 173 NLRB 287, fn 1, 289-290
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act is not a persuasive reason to refuse to amend the consol-
idated complaint to add Mascaro as an additional alleged
discriminatee. To now hold that the amendment requested
by the General Counsel is barred merely because the charge
by Mascaro was filed 6 months after the event in view of the
fact that I would have been obliged to grant an amendment
made at the hearing to the same effect could only be deemed
to be illogical.
However, in view of my disposition heretofore of the issue
of deferring this entire matter to arbitration with regard to
the other alleged discriminatees, there is presented the prob-
lem of how to dispose of the Mascaro situation. As noted,
the Respondent and the Union have agreed to go to arbitra-
tion with regard to the discharges of all of the other alleged
discriminatees named in the consolidated complaint herein.
However, because of the fact that at the time of such agree-
ment Mascaro was not named in the complaint and his
discharge was not discussed, there is no agreement between
the Respondent and the Union to arbitrate the Mascaro
discharge. Certainly, Mascaro's rights are equal to the rights
of all of the other individuals who were allegedly unlawfully
discharged. Moreover, his obligation to-submit this matter
to grievance and arbitration would be the same as those of
the other employees named in this proceeding. Additional-
ly, the Union would have an equal duty to represent Masca-
ro in such an arbitration proceeding as it has with regard to
all of the other alleged discriminatees. Therefore, rather
than delay proceedings for a further protracted period and
delay my order herein until the parties have agreed to arbi-
trate Mascaro's discharge and to permit the Respondent to
answer the additional allegation of the complaint as amend-
ed pursuant to my granting of the General Counsel's motion
for such amendment, I make my order disposing of this
proceeding, deferring the matter to arbitration, conditional
upon the mutual consent of the Union and the Respondent
to arbitrate Mascaro's discharge. Such agreement to arbi-
trate Mascaro's discharge must be reached within the rea-
sonable time limited by the Order following.17
Upon the foregoing findings and conclusions, and the
record heretofore developed herein, and pursuant to Section
10(c) of the Act, I hereby recommend the following:18
ORDER
The complaint is dismissed in its entirety except that
jurisdiction is hereby retained for the purpose of entertain-
ing an appropriate and timely motion for further consider-
ation upon a proper showing that (a) the dispute as to all
the dischargees named in the complaint and amendment
has not been submitted promptly to arbitration, (b) the
dispute has not been resolved by the arbitration procedure
or the decision of the arbitrator is not wholly dispositive of
the issues in this case, and (c) that the grievance or arbitra-
tion procedures have not been fair and regular or have
reached a result which is repugnant to the Act.
17 I have carefully considered the cases cited by the Respondent in its
opposition to the General Counsel's motion to amend the complaint. I do not
find them dispositive of the issues presented by the motion of the General
Counsel to amend the complaint.
18 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.