Hughes Tool Co.

318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD HUGHES TOOL COMPANY and INDEPENDENT METAL WORK- ERS UNION, LOCALS 1 and 2. Case No. 39-RC-133.' April 22, 1953 SECOND SUPPLEMENTAL DECISION, ORDER, AND DIRECTION On August 15, 1946, pursuant to a Decision and Direction of Election by the Board,2 the Independent Metal Workers Union, Locals 1 and 2, hereinafter termed the Independent, was certified as the collective-bargaining representative for all production and maintenance employees at the Employer's Houston, Texas, tool plant. On April 20, 1950, pursuant to elections directed by the Board, the Board found that the Independent again had been selected by the Employer's pro- duction and maintenance employees at the Houston plant as their bargaining representative and further found that "Because the said organization is now the recognized exclusive bargaining representative of a plant-wide unit ... the said organization may continue to bargain for these employees as part of the plant-wide unit which it currently represents."3 Thereafter, on August 18, 1952, the International Association of Machinists, hereinafter termed the IAM, filed a motion with the Board to revoke the certification of the Independent issued as described above.4 The motion was grounded on the ICase No. 39-RC-133 was filed by United Steelworkers of America. CIO, and was con- solidatgd for purposes of hearing and decision with Cases Nos. 39-RC-127, 128, and 134 filed, respectively, by Carpenters Local Union No. 213, AFL, Local Union No. 211 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL, and District No. 37, International Association of Machinists. As Independent Metal Workers Union, Locals 1 and 2, was selected as repre- sentative of the plantwide unit sought by the United Steelworkers in Case No. 39-RC- 133, and its representation therein is at issue here, the caption and case number listing have been modified and amended for purposes of clarity. 2 Hughes Tool Company, 69 NLRB 294. 3Hughes Tool Company, 88 NLRB 1038, and Supplemental Decision and Certification issued therein. The plantwide unit which the Board found the independent continued to repre- sent was a modification of the broad unit in which that Union had previously been certified. The unit, as modified, consists of all hourly paid nonsupervisory production and maintenance employees, including journeymen carpenters and apprentices, and all nonsupervisory salaried employees working in the production area, except timekeepers, but excluding the carpenter foreman, all journeymen maintenance pipefitters and apprentices, the pipefitter foreman, executives, supervisory, office clerical, and professional employees, electrical employees, printshop employees, industrial relations department employees, accounting department employees, other than shop clerks , all engineering department employees except mechanics, helpers, and laborers in the laboratory, cafeteria employees, and all supervisors as defined in the amended Act. 4While the standing of the IAM as moving party in the instant proceeding is a source of "doubt" to our dissenting colleagues, in our view it has sufficient interest to warrant con- sideration of its motion. We say this on the basis of the participation of the IAM in the 1950 elections wherein the independent gained recertification; the showing of interest submitted by the lAM with its petition in Case No. 39-RC-480, now pending on appeal before the Board and in which the IAM seeks certification in the unit now represented by the Independent; and the supporting affidavits of employees adversely affected by the Independent's conduct which were submitted in support of this motion. It is clear, on these facts, that the IAM is not an interloper but a party of past and present interest in the representation of these employees which may, under these facts, for itself or as a medium for the affected em- ployees, call the attention of the Board to practices inconsistent with the certification of the statutory representative. Moreover, our chief concern is to protect our certification from being abused by discriminatory practices ; not with how the abuse is brought to our attention. 104 NLRB No. 33. HUGHES TOOL COMPANY 319 allegation that the Independent has misused, and continues to misuse , the certification as exclusive bargaining representative by failing to process and present grievances of all members of the bargaining unit on a nondiscriminatory basis.' On October 27, 1952, the Board issued notice that all parties of interest might submit briefs, together with relevant sup- porting material, on the issues raised by the motion of the IAM. In accord with this notice, the Independent, the IAM, the Employer, and the United Steelworkers of America, CIO, herein termed the Steelworkers, filed responses. On request of the Independent, oral argument was heard before the Board on February 10, 1953. The Independent and the IAM were represented by counsel and participated in the argument. The Employer was also represented at the argument but did not participate therein. Upon full consideration of the motion and the record of this proceeding, the Board makes the following findings and conclusions. As noted above, Locals 1 and 2 of the Independent have been jointly certified as the representative of the employees at the Employer' s Houston plant since 1946. During that period, Local 1 has represented the white employees who comprise the great majority of the plant personnel, and Local 2 has represented the Negro workers in the plant. During the summer of 1952, Local 1 announced that it would henceforth require that employees who were not members of the Independent be charged $15 for each grievance and $400 for each arbitration proceeding in which the Independent served as their representative. A notice to this effect was posted and charges have been made accordingly.6 Members of Local 1 SAn additional allegation in the motion consisted of a contention that the Independent and the Employer had violated "the contract and the Texas Statutes" in that they refused to permit an employee to resign from membership in the Independent and were continuing to deduct dues from his wages despite the fact that he had signed a withdrawal of dues- deduction authorization. It is clear that this allegation, the facts of which are in dispute. concerns alleged misconduct by the Independent not directly bearing upon its responsi- bilities under the certification. Accordingly, we deny the IAM motion to the limited extent that it is based upon this secondary allegation. 6 The independent admits both the institution of the fee system and the fact that actual assessments under its terms have been made . The bulletin announcing the fees was circu- lated in the plant and read as follows: Attention: Non- Union Members This notice applies only to those employees who are not members of the independent Metal Workers Union, Local #1. In order to fairly distribute the costs of Union representation, the following charges will be made to non- members who seek Union assistance: Grievance- Fifteen ($15.00) dollars for the processing of a grievance through the grievance procedure and to the point of arbitration, including the securing of adjustment of the grievance from the Company. Arbitration: Four hundred ($400.00) dollars for the processing of a grievance through the arbi- tration procedure. Non-members who do not pay the above fees will have the right to process their own grievances. However, the Independent Metal Workers Union reserves the right to insist that adjustment of such grievances strictly follow the terms of the contract and to insist that it be present at the actual adjustment of the non-members grievance. 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are not required to pay fees for such services other than their regular dues of $1 a month. Local 2 has not instituted the fee system. The IAM contends in its motion that the Independent, through Local l's action, is seriously abusing the status of exclusive bargaining representative accorded that organization by the certification of the Board. In support of this contention, it argues that the certified bargaining representative owes a duty of nondiscriminatory representation of all employees in the bargaining unit whether or not they are members. This duty, the IAM asserts, is violated by a policy which denies the services of the representative to nonmembers except upon the payment of discriminatory fees, thereby punishing and coercing those individuals into joining the Independent. The Independent, on the other hand, defends the fee system as a nondiscriminatory method of equitably sharing the costs of representation and further contends that "prior to the fee system, certain IAM members were weighing our grievance men down with spurious grievances." The Independent also asserts that the motion concerns practices the illegality of which should be tested and litigated in unfair labor practice proceedings rather than by motion to revoke the certification. The Employer, while not taking any position as to the legality of the assessment of fees by the Independent, contends in its brief that both the bargaining relationship at the plant and the contract now in effect between it and the Independent would be seriously and adversely affected if the motion to revoke were granted. It therefore requests that the Board deny the motion or, in the alternative, that the Board, rather than revoke the certificate, correct the illegality by a finding and order that the Independent cease such practices in the future. The Employer also states that, upon learning of the existence of the fee system, it notified the Independent that "The Company will continue to allow any individual employee or a group of employees who desire to do so to present grievances to it at any time and to have such grievances ad- justed without the intervention of your Union as long as the We urge all persons to join the Independent Metal Workers Union. We feel that the Union can handle matters for you better than you can handle them for yourself. Union, representation, when you are in distress, can be a vital thing . It includes: Job Security: Protection, through the grievance and arbitration procedure, from unfair discharge. In this situation, the one dollar a month will cause the Union to protect your job. Promotion: Protection, through the grievance and arbitration procedure, from being unfairly by passed by junior employees who do not have your fitness and ability. Fair Pay: Protection, through the grievance and arbitration procedure , from being erroneously or improperly paid. Fair Working Conditions: Establishment, through negotiations, of a contract providing for fair wages, hours, and conditions of employment. We are preparing to negotiate a new contract with the Hughes Tool Company . However, to bargain effectively with the Company and to secure a fair contract for you, we must present a united front. We therefore urge all those employees who have not yet joined the Union to join now and to not only join, but also to take an active part in Union affairs. Independent Metal Workers Union HUGHES TOOL COMPANY 321 adjustment is not inconsistent with the terms of the collective bargaining agreement, but we will , of course , give your Union an opportunity to be present at such adjustment ." The Employer further stated to the Independent that " to the extent that your ... [grievance and arbitration fee system] is contrary to the provisions of the Act and the applicable decisions , we do not condone it and will not be a party to it." Before dealing with the merits of the allegations made against the Independent , it is necessary to examine the procedural issue raised by the latter organization and by our dissenting colleagues . In substance , that contention is that the propriety or legality of the Independent ' s grievance charges should be challenged in unfair labor practice pro- ceedings rather than by the method of certificate revocation. In support of this position , it has been asserted that the 1947 amendments to the Act eliminated any necessity for certificate revocation actions by providing that certain labor union activities were unfair labor practices and were tobe remedied as such. We cannot , on full consideration , accept this con- tention. Only one occasion has previously arisen in which the Board has entertained and rendered a decision on a motion to revoke the certification of a labor organization .' In that case, Larus & Brother Company , Inc.,8 the Board held that as the certified union "did fail to perform its full statutory duty under the certification," the certification would have been rescinded had it not been voluntarily relinquished following institution of proceedings under the motion to revoke . The Board's decision further stated, The Board has no express authority to remedy un- democratic practices within the structure of union organ- izations , but we have conceived it our duty under the statute to see to it that any organization certified under Section 9 (c) as the bargaining representative acted as a genuine representative of all the employees in the bargaining unit. (Emphasis supplied.) The Larus case was, of course, decided in 1945, prior to the enactment of provisions making certain union activities unfair labor practices subject to the same remedial action as those of employees. Contrary to the impression of our dissenting colleagues, however, the legislative history of the 1947 amendments does not contain any indication that the addition of such unfair labor practice provisions under Section 8 b) was a substitution, replacement, or cancellation of the Board's authority to rescind certifications under ?The Board has, however, recently adjudged and declared certain certifications to be "of no further force and effect" because of abuse of its processes with regard to the affi- davit requirements of Section 9 (f), (g), and (h) of the Act. See, for example, Consolidated Cigar Corporation (Local Industrial Union 80, F.T.W., CIO), 4-RC-996, Order dated Decem- ber 19, 1952. 8 62 NLRB 1075. 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 9 although Congress was clearly aware of the existence of the latter power,9 Yet our dissenting colleagues are appar- ently overthrowing the Larus decision and taking either the position (which one is not clear) that the Board cannot reach conduct of the type here involved except by unfair labor practice proceedings, or that the Board cannot remedy the conduct by the revocation procedure unless it at least con- stitutes an unfair labor practice violative of Section 8 (b) of the Act. The Board has not, however, at any time based its authority to revoke certifications upon the limited ground of the unavailability of any other remedy, statutory or other- wise. On the contrary, on a number of occasions both before and after the passage of the 1947 amendments, the Board has reiterated the existence of the revocation procedure as an anticipatory curb of a variety of actions not compatible with the status of certified bargaining representatives.10 We, there- fore, adhere to the view that the authority of this agency to police and rescind certifications issued under Section 9, where the facts show abuse of the certification by the bargaining representative, has not been circumscribed or eliminated by the amendments to the Act. We are of the further opinion that the existence of concurrent remedies for the alleged misconduct under the provisions of Section 8 (b) is not a barrier to the consideration of the IAM motion. Whether such a concurrent remedy does exist is undetermined. In this instance, a charge has been filed in the Thirty-ninth Subregion by an individual who alleges that the Independent's grievance and arbitration fees violate Section 8 9 The only comment on the Larus case, indeed , during the hearings and debates on the 1947 amendments was with respect to the practice of segregated locals. See House Con- ference Report No. 510 on H.R. 3020, 80th Congress, p. 41. 10 See, for example, Veneer Products, Inc., 81 NLRB 492 (Herzog, Houston, and Gray participating); Bronx County News Corporation, 89 NLRB 1567 (Herzog. Houston, Murdock, and Styles participating); and The Coleman Company, Inc., 101 NLRB 120 (Herzog, Styles, and Peterson participating), all dealing with allegations of racial prejudice or other denial of equal representation. See also, Sunbeam Corporation, 89 NLRB 469, 98 NLRB 525; and Lane Wells Company 79 NLRB 252, on revocation of certificates for reasons connected with the affidavit filing sections of the Act. In the latter case, the Board, citing the Larus case, made the statement that "... the Board has the power to police its own certifications and can thereby fully effectuate the policies ofSection9 (I), (g), and (h). If changing circumstances should give rise to a situation in which the Board for policy reasons would not issue a certification in the first instance, it has power either on its own motion or that of the Em- ployer to recall the certificate." Numerous examples of the same statement of policing power over the certification appear in cases which issued before the 1947 amendments. See, for example, Carter Manufacturing Company, 59 NLRB 204; Southwestern Portland Cement Company, 61 NLRB 1217; Atlanta Oak Flooring Co., 62 NLRB 973; General Motors Corporation (Chevrolet Shell Division), 62 NLRB 427; Wichita Falls Foundry & Machine Co., 69 NLRB 458; and R.K.O. Pictures, Inc., et al., 61 NLRB 112, where it was held "... it is the duty of the exclusive represent- ative of the employees in an appropriate bargaining unit to represent all employees therein without hostile discrimination and with a view to the promotion of their best interests. Should either ... [of the participating labor organizations] engage in such restrictive prac- tices, or otherwise circumvent the objectives of the Board inherent in this decision, the Board will not regard itself as precluded, upon consideration of the circumstances thus presented, from taking appropriate remedial action, including either a redetermination of the bargaining unit or revocation of the certification herein." HUGHES TOOL COMPANY 323 (b) (1) (A):u The disposition of this charge and the question whether a complaint should be issued , litigated , and brought to judgment before the Board is a matter which , by statute, is within the exclusive province of the autonomous General Counsel." Under these circumstances , it would be inadvisable and presumptuous for the Board now to prejudge the merits of the issues raised by that charge and to decline or accept the IAM motion accordingly. We are therefore not persuaded that it would be either wise or equitable to disregard the merits of this motion on the ground that it may or may not be the subject of a future complaint which might or might not result in a remedial order. Moreover , to accept such a disposition would be to find that only matters subject to the provisions of Section 8 (b) constitute sufficient abuse of the duties of the certified bargaining agent to warrant revocation of the certificate . On the contrary, we believe that the negative prohibitions upon certain conduct by labor organizations found in Section 8 (b) are not wholly interchangeable with, and equivalent to, the affirmative duties arising under a certi- fication through the processes of Section 9. Accordingly, we are not, as our dissenting colleagues assert, testing the "legality" of the Independent ' s conduct in this proceeding. While that question would be the issue in a prosecution under Section 8 (b) of the Act, the question in the instant proceeding is whether or not the conduct is incompatible with the status and obligations of a certified bargaining representative . It is this vital difference , and not any intent on the part of the majority of this Board to "pre- clude " judicial review , which is responsible for this proceeding not falling within the specific provisions for court review contained in Section 10 which relate to unfair labor practice decisions . Moreover , to assume as our dissenting colleagues do, that this action necessarily deprives the Independent of court review seems somewhat premature in view of a recent court decision , now on appeal , concerning Board revocation of other certificates for reasons concerning the affidavit requirements of the Act. ' Even assuming the position taken by the minority, however , we firmly believe that the fact that Board action in representation cases is ordinarily not directly reviewable in court should not and indeed has not deterred the Board from taking such action where it is warranted .14 The fact that the scheme of the statute makes 11 A charge, docketed as 39-CB-39, was filed by an individual on July 7, 1952 , alleging that the same conduct of the independent at issue herein violated Section 8 (b) (1) (A) and Section 8 (b) (2). This charge was withdrawn on October 16, and a new charge alleging the same conduct as a violation of Section 8 (b) (1) (A) was filed on October 20, 1952. This charge, docketed as 39-CB- 44, has not, to the present time, been either dismissed or made the subject of a complaint. 12Cf. Times Square Stores Corporation, 79 NLRB 361. 13 See American Communications Association v . Paul M. Herzog, 110 F. Supp. 220(D.C., D.C.). i4See, for example, United Aircraft Corporation, Pratt & Whitney Aircraft Division, 103 NLRB 102, where the Board denied certification to a union because of certain preelection conduct found inimical to an atmosphere of free choice by the employees concerned. Our dissenting colleagues joined in this decision , although it is clear that the union affected adversely by that action had no more rights of court appeal than the Independent herein. 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD specific provision for review of final orders in unfair labor practice cases alone is not by direction of this Board but by the Congress. Even assuming that the alleged misconduct in the instant case were remediable under Section 8 (b), the Board does not consider that the mere existence of another method of correcting the conduct is sufficient reason to deny the instant motion. Although revocation of certificates is a method which is sparingly used, it is one which may be best suited to curb certain types of conduct. The period of time which must necessarily pass before the alleged wrong is corrected as well as the minimum remedy necessary to adjust a situation may appreciably affect the choice and value of the remedial action. In a comparable situation, the Board has consistently allowed a union which is the victim of discriminatory conduct during an election to contest the results by filing objections to the election in a supplemental representation proceeding, to file unfair labor practice charges, or to seek both remedies. Arbitrarily to allow less choice in an instance dealing with conduct such as that alleged herein would be without legal or equitable basis. We turn, therefore, to a consideration of the merits of the motion. The contention of the IAM, as noted, is that the fees charged nonmembers for representation by the Inde- pendent in grievance and arbitration proceedings constitute a denial of equal representation and therefore an abuse of the certification. The defense of the Independent, reduced to its simple terms, is that it does not refuse to represent any employee in the bargaining unit, but merely requires the payment of fees to equalize the financial burden arising from the expenses of those proceedings." The issue, accord- ingly, is whether the imposition of these fees is in derogation of the duties of the bargaining representative to provide equal representation to all employees in the unit, or is only a justifiable measure to control and discourage "free riders." The question which must first be answered is what relation- ship the Independent's conduct bears to the duties and responsi- bilities of a certified bargaining representative. It is patent that all actions involving disparate action towards members and nonmembers of a certified labor organization are not, p pr se, acts in derogation of the position of exclusive bargaining representative. Thus, a union might conceivably offer certain social or lodge facilities to members and deny them to nonmembers without abusing any duty arising under the certification and the Act. On the other hand, such a union could not assess nonmembers for costs arising from contract negotiations for the latter are the exclusive duty and pre- is As previously stated, the Independent further claims that prior to institution of the fees, JAM members were filing spurious grievances. The independent also argues that the petitioning LAM, itself, has attempted to secure financial support from nonmembers in shops where it is the representative by use of an "agency shop" system. As the facts concerning the "agency shop" are not before the Board or at issue herein, the Board does not consider this contention material or relevant. HUGHES TOOL COMPANY 325 rogative of the certified representative which the nonmember minority is both entitled to and bound under. It is necessary, therefore, in ascertaining whether the Independent's grievance policies are within a prohibited zone, to examine the statutory source of the certified union's status and authority. Section 9 (a) of the Act, as amended, provides: Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other con- ditions of employment: Provided, That any individual em- ployee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining con- tract or agreement then in effect: Provided further, That the bargaining representative has been given opportunity tobe present at such adjustment. (Emphasis supplied.) The Board has, accordingly, observed that an organization which is granted exclusive bargaining rights under Section 9 has, in return, assumed the basic responsibility to act as a "genuine representative of all the employees in the bargaining unit."16 (Emphasis supplied.) To hold otherwise, in view of the language of Section 9, would be to allow the exclusive position of the representative obtained through the authority of the Act to be used in a manner detrimental to the very employees the statute is designed to protect. In the Larus case , involving a racial segregation situation, the Board found that this basic responsibility had been abused where the "certified union used its statutory powers to ex- clusive representative to compel dues payments and continuance of membership, with respect to an organization [a Negro local] which was not the certified union." It noted the Supreme Court decisions in the Steele, Wallace, and Tunstall cases,"' and stated that "These holdings give support to many decisions of this Board in which we have said that there is a duty on the statutory bargaining agent to represent all members of the unit equally and without discrimination, on the basis of race, color, or creed." (Emphasis supplied.) The duty of equal representation, however, which is inherent in the exclusive representative status accorded by the statute, is not concerned alone with questions of race, color, or creed. The certified representative's exclusive authority to bargain and represent may be achieved by virtue of the support of a 16Larus & Bros. Company, Inc-, supr. lTSteele v. Louisville & N.R. Co., et al., 65 S. Ct. 227; Wallace Corp. v. N.L.R .B., 323 U.S. 248; Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, Ocean Lodge No. 76, et al., 65 S. Ct. 236. 283230 0 - 54 - 22 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bare majority of the employees in the appropriate unit. Discrimination in the performance of the duties of the repre- sentative designed to deny equal treatment to those of the minority is to subvert the privilege and rights granted by the statute. Whether such discrimination is based on union member- ship or the lack thereof, rather than on considerations of race, creed, or color is, in our opinion, irrelevant. We believe it is also clear that the presentation and adjust- ment of grievances is an activity which is subject to this requirement of nondiscriminatory representation by the certi- fied union. The prominent part which grievance handling plays in the representation of employees is readily apparent. As the Board has stated previously, "Grievances are usually more than mere personal dissatisfactions or complaints of employees and their adjustment frequently involves the interpretation and application of the terms of a contract or otherwise affects the terms and conditions of employment not covered by a contract."18 The adjustment of grievances, viewed in the larger aspect, constitutes, to a great degree, the actual administration of a collective -bargaining contract. The importance of grievance presentation and adjustment as a part of the representation of employees is also noted in the statute. Section 2 (5) of the Act observes that a labor organi- zation exists for the purpose, among others, of dealing with employers concerning grievance s.19 Section 9 (a), as will be more fully discussed hereinafter, specifically recognizes the critical position grievance presentation and adjustment occupies in the relationship between the employee and the employer, the representative and the employer, and the employee and the representative. We find, therefore, in accord with the views of the Fifth Circuit court that "The handling of grievances ... is part of the business (a certified union] has assumed and must be done with impartiality." m The question is posed , however, as to whether the 1947 amendments to the Act and, in particular, to Section 9 (a) is Bethlehem Steel Company, Shipbuilding Division, 89 NLRB 341 at 344. l9Section 2 (5) states, in full. "The term 'labor organization' means any organization of any kind, or any agency or employee representation committee or plan , in which em- ployees participate and which exists for the purpose , in whole or in part, of dealing with employees concerning grievances, labor disputes , wages, rates of pay, hours of employment, or conditions of work." 20 Hughes Tool Company v. N.L.R.B., 147 F . 2d 69 (C. A. 5, 1945), dealing with the issues of whether an employee may call in a representative other than the certified union to repre- sent him in grievance procedures and the scope of the certified union's right to participate in presentation and adjustment of grievances brought by individuals . At the Board hearing, however, an offer of proof to the effect that the certified union had refused to handle griev- ances filed by members of other unions was rejected. On this subsidiary point the court noted that "We think a meritorious grievance is entitled , if desired , to the aid and counte- nance of the bargaining representative If the griever is a member of another union and can- not be represented by his own union, it is the more necessary that he have the aid of the representative." On the same point, the court added, "When the [certified union] accepted certification as the bargaining representative for the group, it accepted a trust . It became bound to represent equally and in good faith the interests of the whole group [citing the Steele case, supra] ... It ought not discriminate in the execution of its duties between its own members and employees who belong to another union or to no union." HUGHES TOOL COMPANY 327 did not diminish the certified representative's responsibility in this regard. Under Section 9 (a) of the Wagner Act, the individual employee or group of employees in a unit repre- sented by a certified union was granted "the right at any time to present grievances to their employer" notwithstanding the otherwise exclusive status of the certified representative on matters touching on collective bargaining. The same section was amended in 1947 to provide further that the individual employee or group of employees had the right "to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective bargaining contractor agreement then in effect" and providing "that the bargaining representative has been given opportunity to be present at such adjustment." Despite the fact that the statute, by force of these provisos in Section 9 (a), grants the certified representative less than an exclusive position in the handling of grievances, we do not consider that the certified union's responsibility concerning those grievances on which its aid is requested has been lessened. It is clear that Congress, in amending the section, was concerned with the dual problem of an individual employee's right to choose to process a grievance without interference by the representative and the representative' s interest in preserving intact the terms and conditions of its contract and its right to bargain about such terms.n This is a distinctly different matter from that of the representative' s responsi- bility insofar as those grievances which are tendered it by the voluntary act of the employee. We, accordingly, find that the amended Section 9 (a) still gives rise to a duty by labor organizations, as the exclusive representative in grievance proceedings (other than those processed through preference by the individual himself), impartially and without discrimi- nation to accept and process all grievances placed in its hands by the employees it represents. The question thus finally becomes whether or not the grievance and arbitration fees charged herein are in conflict with that duty to represent employees in grievance proceedings without discrimination. We find the answer to be in the affirmative. As we have noted above, all employees in an appropriate unit are entitled, upon their request, to the impartial assistance of the certified representative in the filing and adjustment of grievances. The duty of the certified representative to render such impartial assistance is clearly evaded where some employees are forced to pay a price for such help or to forego it entirely. The latter result is precisely what occurs under the fee schedule set up by the Independent. There are obvious reasons why the assistance of the certified labor organization is of great value to an employee with a n See Senate Report No. 105 on S. 1126, 80th Congress, "'The amendment contained in the revised proviso for Section 9 (a) clarified the right of individual employees or groups of employees to present grievances ... The revised language would make it clear that the employee's right to present grievances exists independently of the rights of the bargaining representative, if the bargaining representative has been given an opportunity to be present at the adjustment .... " 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD legitimate grievance. The established procedures and ex- perienced personnel which the union has at hand;22 the background of preceding cases and knowledge of the contract stemming from participation in its negotiation; and the very prestige and authority of the union itself are all factors which may well mean the difference between the success and failure of the grievance. nWhere a certified bargaining representative exists, it has been held that the employees are not entitled to be represented in grievance proceedings by any labor organization other than the certificate holder.' The defense of the Independent--that it does not "refuse" such assistance as certified representative but merely requires payment for it--begs the question. It is the employee's option alone as to whether the services of the representative are to be used in his behalf. By demanding the payment of a $15 or $400 fee by nonmembers as a prerequisite to their obtaining the assistance they are entitled to as employees in the unit and refusing the representation if not paid, the Independent has abused the privileged status it occupies as certified repre- sentative by using that status as a license to grant or deny representation according to its own arbitrary standards. The Independent further asserts that its fees are justified as a legitimate method of solving the "free rider" problem by an equitable assessment of fees from nonmembers who "elect" to utilize the union's facilities. We find no merit in this contention. While the question of employees who accept representation without sharing in its expenses is a historic and troublesome problem we do not consider that the measures placed in effect by the Independent present a permissible solution.' The Independent, in realistic terms, is claiming the privilege of refusing representation to some of the employees in a group except as a hired agent. Thus, it will assist, in grievance proceedings, in enforcement of 2The Independent, in this instance, has successfully negotiated the inclusion of a compre- hensive grievance system in its contract. Article IX of that agreement provides for a three- step procedure with provision for arbitration thereafter . The grievance is first presented to the foreman, subforeman, or grievance man in the section in which it arises. If unsettled at that stage, it is presented to the chief grievance man for the shift who attempts to settle the matter with the general foreman or division head. If still unsettled, it is then presented to the grievance committee and the corresponding management committee . The Independent, by the terms of the contract, appoints the grievance man (in the first step) for each section of each shift, the chief grievance man (for the second step) for each shift, and the grievance committee for the final step. All grievance representatives of the Independent are guaranteed full pay, by the contract, for all working time spent away from their duties on investigation and presentation of grievances. 22 There is an additional question as to whether an employer would be in violation of the Act if he refused to adjust or discuss the individual grievances of an employee or group of employees where a certified union represents a majority. The General Counsel, in Adminis- trative Decision of the General Counsel on Appeal, Case No. 418, made public November 3, 1952, indicated a view that such refusal would not violate the Act and that he would not issue a complaint under such circumstances. uSee Hughes Tool Company v. N.L.R.B., supr 2Indeed, the record affords some justification for doubting the assertion that the Inde- pendent's fees amount to a "fair and equitable" sharing of costs. Membership in the Inde- pendent involves the payment of Si a month dues which presumably covers the costs of not only grievance and arbitration proceedings but all other facets of union business and benefits. The independent alludes to the fact that its last arbitration case brought an ex- (Continued) HUGHES TOOL COMPANY 329 rights accruing to an employee under a collective -bargaining contract only if that employee will join its organization or make a substantial payment . The Independent is barred, by the law of the State of Texas, from obtaining compulsory membership." We do not believe that, in the alternative, it may require a fee from nonmember employees for services which are due the latter as a matter of right. By adopting such a procedure , the Independent has, ih effect , taken the position that it will only represent its members in the important area of contract administration. V Finally, we do not consider the contention of the Independent that its policy was precipitated by "spurious grievances" filed by the IAM adherents in the plant in an attempt to clog the grievance machinery affords justification for its position. It is clear that the Independent , or any other certified union, may refuse to process grievances presented to it where they lack merit. Accordingly , we find that the Independent , through the action of its Local 1 in requiring the payment of $15 and $400 for handling grievances or arbitration involving non- members, has engaged in conduct constituting a clear evasion and abuse of the standard of conduct imposed upon the exclusive representative under Section 9 (a) of the Act. We further find that this conduct is sufficient ground for revocation of the certification of the Independent and its Locals 1 and 2 as representative of these employees. In view of the special circumstances present in this case, however, including the fact that this is a case of first impression and that the joint holder of the certificate , Local 2, has not engaged in the discriminatory action, we shall not revoke the certification of the Independent without first affording that organization an opportunity to correct its conduct. If 25 (Continuation) penditure of $1,000 . Arbitration, however, generally occurs only over problems of con- siderable importance to the union and employees as a whole , and may be regarded as a group project rather than one carried out for the assistance of an individual alone. More- over, we note with regard to grievance procedures that the contract in effect between the Independent and the Employer guarantees full pay to union representatives for working tittle lost in the processing of grievances. 26 The Texas Statutes , V.T.C.S. 5207 (a) provide, in part: Any contract which requires or prescribes that employees or applicants for employ- ment in order to work for an employer shall or shall not be or remain members of a labor union, shall be null and void and against public policy ... . Section 14 (b) of the Labor Management Relations Act of 1947 provides: Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employ- ment in any State or Territory in which such execution or application is prohibited by State or Territorial law. 27 The Board and the courts have consistently regarded a labor union which is recognized or has a contract for representation of its members only as having a status inferior to and less than that contemplated by Section 9 of the Act. See McQuay- Norris Mfg. Co. v. N.L.R.B., 116 F. 2d 748 (C.A. 7, 1940) enforcing 21 NLRB 709 , cert. denied 313 U.S. 565. In accord with this position is the Board 's long- standing ruling that a members -only contract will not bar an election upon a petition filed during its term. See, for example, Massell Company, 89 NLRB 409. 330 DECISIONS OF NATIONAL LABOR RELATIONS HOARD the Independent anc its Local 1 immediately discontinue the practices complained of herein and post appropriate notices to that effect within ten (10 ) days after receipt of this Decision notifying all employees that the Independent and its Local 1 will henceforth , on request , receive and process all meri- torious grievances without special charge whether or not they - are filed by members or nonmembers , we shall, by further order , deny the motion to revoke . If such action is not forthcoming , however , we shall order that the certifi- cation of the Independent and its Locals 1 and 2 be rescinded. We shall further direct that the Regional Director for the Sixteenth Region file a report with the Board at Washington, D. C., within fifteen ( 15) days from the date of this Decision, Order, and Direction , stating what action has been taken by the Independent and its Local 1 in compliance herewith. ORDER IT IS HEREBY ORDERED that the certification of the Independent Metal Workers Union , Locals 1 and 2, issued in Cases Nos . 16-R-1489 and 39-RC-133, shall be revoked unless the Independent Metal Workers Union and its Local 1 discontinue , immediately upon receipt of this Order, the practice of charging nonmembers $ 15 for the processing of a grievance and $400 for the processing of an arbitration case, and unless the Independent Metal Workers Union and its Local 1 within ten ( 10) days from the date of this Order post notices at their business offices and meeting halls at_ Houston, Texas , notifying all employees in the unit represented by those organizations that the Independent Metal Workers Union and its Local 1 have discontinued such fees and will henceforth , on request , receive and process all meritorious grievances of employees within the unit without special charge whether or not they originate from members or nonmembers . Such notices , when posted, shall be maintained by the Independent Metal Workers Union and its Local 1 for a period of thirty (30) consecutive days thereafter, and reasonable steps shall be taken by the Independent Metal Workers Union and its Local 1, to insure that said notices are not altered, defaced, or covered by any other material. Signed copies of such notices shall also be sent to the Regional Director for the Sixteenth Region, for posting, the Employer willing, at the Hughes Tool Company Houston plant in the places where notices to employees are customarily posted. DIRECTION The Regional Director for the Sixteenth Region is hereby directed to file a written report with the Board, at Washington, D.C., within fifteen ( 15) days from the date of this Decision, Order, and Direction , stating what action has been taken by the Independent Metal Workers Union and its Local 1 in compliance with the terms of said Decision , Order, and Direction. HUGHES TOOL COMPANY 331 Chairman Herzog and Member Peterson, dissenting: Without passing, one way or the other, upon the propriety of the Independent's conduct, we cannot agree with our colleagues that this is an appropriate method by which to test the legality of that conduct. When Congress amended the National Labor Relations Act in 1947, it sought to proscribe certain union behavior which it considered inimical to sound collective bargaining. It gave no license to the Board to prohibit other conduct which might appear to us to interfere with employees' rights. Yet the majority here proposes the unusual step of forcing the Independent to abandon this conduct without first determining, through the pending unfair labor practice proceeding, whether or not it actually violates any of the standards which Congress established.28 Furthermore, this method of outlawing the conduct has the disadvantage of depriving the Independent of court review of the Board's action. If the Independent resists the mandate of the majority, it immediately loses its certificate, and its status as bargaining agent presumably is subject to immediate challenge by the IAM in an election. It appears to us that where the illegality of a union's conduct is as much in doubt as it is here, and where the case, even if it were presented to the Board in an unfair labor practice proceeding, would admittedly be one of first impression, we should not either anticipate the issuance of a complaint by the General Coun- sel29 or preclude review by the courts. We are also doubtful about the standing of the IAM to raise this question. It is not a party to any contract with the Company, but is simply seeking to disrupt the existing bargaining re- lationship for its own ends. Those ends are, it would seem, to supplant the Independent as the representative of some of these employees, without awaiting what would otherwise be an appropriate time to do so, by securing revocation of its incumbent rival's certification. 30 28The cases cited by the majority which deal with noncompliance or fraudulent compliance with Section 9 (f), (g), and (h) of the Act are inapplicable here. They rest on the different premise that the union fraudulently induced action by the Board which the Board, had the true facts been known, would have had no authority to take. We do not here propose "overthrowing" the Larus decision, but merely question the wisdom of extending its technique in practice, for the first time in 8 years , to this very different set of facts. 29A charge alleging this very conduct as a violation of the Act is still pending in the Regional Office (39-CB-44). The Board's latest order to the Company to bargain with the Independent issued as recently as July 1952 (100 NLRB 208). The IAM has since appealed the Regional Director's dismissal of its petition for a new election.