Sunshine Biscuits, Inc.

W. P. IHRIE & SONS 167 W. P. Ihrie & Sons, Division of Sunshine Biscuits, Inc. and Local Union No. 68, American Bakery & Confectionery Workers International Union , AFL-CIO. Case 5-CA-3524 May 31,1967 DECISION AND ORDER On December 23, 1966, Trial Examiner A. Norman Somers issued his Decision in the above- entitled proceeding, recommending that the complaint be dismissed, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. The Respondent filed an answering brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in the case, and finds merit in the General Counsel's exceptions. For the reasons detailed in his Decision, the Trial Examiner viewed this proceeding as presenting an issue involving the interpretation and application of a dues-checkoff provision contained in the existing contract between the Respondent and the Union, and he regarded the entire matter as involving "something less than `basic' to the collective- bargaining relationship." Such a case, he believes, lends itself more properly "to the kind of particularized and individual adjustments which an arbitrator is in a position to make by applying his sound judgment and sense of equity in interpreting the contract" rather than to the unfair labor practice procedures of the Act. The Trial Examiner accordingly concluded that the complaint should be dismissed and that it was unnecessary to determine the merits of the complaint's allegation that the Respondent violated Section 8(a)(5) and (1) of the Act by repudiating the checkoff provision of its contract with the Union. We do not accept his view of the case. As appears hereinafter, the record supports the complaint's charge that Respondent repudiated its checkoff obligation under the contract. By this action, Respondent unilaterally changed a contractual term or condition of employment, modifying its contract with the Union in a significant respect; its action will have a continuing impact on its relationship with the Union and the affected employees. We thus have before us what is essentially a matter of statutory violation (under Section 8(d) and 8(a)(5) of the Act), rather than of contract interpretation. The issue presented as a result of Respondent's conduct is the effect under the Act of an affirmative deauthorization vote upon a contractual dues-checkoff obligation of employer; it relates directly to the employer's statutory duty and is one which the Board is specially competent to resolve. We note, moreover, that neither party has even sought to invoke the contract's grievance- arbitration procedure herein. As the circumstances do not persuade us that we should, in the exercise of our discretion, defer to any other forum in this matter, we shall proceed to a consideration of the real question presented by this case.' In the deauthorization election held on May 26, 1966, the employees voted, 20 to 9, in favor of withdrawing from the Union the contractual authority to require membership in it as a condition of employment. The Regional Director certified the results of the election on June 6. On June 8, the Respondent sent a letter to the Union in which it stated that it deemed the vote to have eliminated from the contract both the union-shop clause and the dues-checkoff provision, and advised that it was returning to the employees the $5 that it had deducted from their wages in May toward payment of the June dues and that dues would no longer be deducted from the employees' wages. The Respondent also enclosed a copy of a notice to employees which had been posted in the plant on the same day. This notice, which was posted after several employees inquired when their already- deducted union dues would be returned to them, contained a statement that the employees were no longer required to be members of the Union or to pay dues to keep their jobs, that the dues deducted from the May paycheck would be returned to the employees, and that those employees who wished to retain their membership and pay dues should contact the Union, as the Respondent would no longer "handle any of these arrangements." Not one of the employees contacted the Union, either to resign his membership or to revoke his checkoff authorization. On June 13, however, the Respondent refunded to all employees the dues which had been deducted from their May wages and it has ceased the further checkoff of dues. The Board held in Penn Cork2 that, when there has been an affirmative deauthorization vote, outstanding checkoff authorizations originally executed by employees while a union-shop provision was in effect become vulnerable to revocation by employees regardless of their terms. As is also evident in the more recent Bedford Can decision,3 such affirmative vote does not automatically cancel existing authorizations for the checkoff of dues or ' See N L.R B v C & C Plywood Corp, 385 U S 421, The Crescent Bed Company, Inc, 157 NLRB 296, C & S Industries, Inc., 158 NLRB 454 Member Brown notes his concurring opinion in CloverleafDivision of.4dams Dairy Co , 147 NLRB 1410 2 Penn Cork & Closures, Inc , 156 NLRB 411, 414-415, enfd 376 F 2d 52 (C.A. 2) J Bedford Can Manufacturing Corp , 162 NLRB 1428 165 NLRB No. 2 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD alone require an employer to cease deducting dues in the face of a contractual checkoff provision. In the cited cases, the Board found that the employer violated the Act by continuing to make such deductions after the employees , following deauthorization elections , revoked their prior authorizations . In this case, the employer repudiated the checkoff provision of its collective -bargaining contract with the Union, not only in its application to employees who might not have wished to revoke their existing authorizations , but in its application generally as a continuing contractual provision which allowed new employees voluntarily to authorize this mode of paying their dues . It follows, and we find, that the Respondent thereby unilaterally modified its contract with the Union in violation of Section 8(a)(5) and (1) of the Act. Contrary to the Respondent 's contention , the record reveals no unusual circumstances which justify its conduct. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondent set forth above, occurring in connection with the operations described in section I of the Trial Examiner's Decision, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We have found that in June 1966 the Rspondent unlawfully repudiated its obligation to deduct dues from its employees' wages for transmittal to the Union. To remedy the Respondent's unfair labor practices, we shall order it to reimburse the Union, with interest at 6 percent per annum, for all membership dues it has improperly failed to transmit to the Union since June 1966, and to resume the monthly transmittal of such dues to the Union until effective revocation of checkoff authorizations are given.4 The Board, upon the basis of the foregoing findings and the entire record, makes the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By repudiating, refusing to honor, and unilaterally modifying the collective-bargaining agreement entered into between it and the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respondent, W. P. Ihrie & Sons , Division of Sunshine Biscuits, Inc., Baltimore , Maryland , its officers , agents, successors , and assigns , shall: 1. Cease and desist from: Repudiating, refusing to honor , or, except as permitted by Section 8(d) of the Act, unilaterally modifying the collective-bargaining agreement entered into between it and Local Union No. 68, American Bakery & Confectionery Workers International Union , AFL-CIO, or from engaging in any like or related conduct in derogation of its statutory duty to bargain with the Union. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Reimburse the Union for all membership dues it has failed to transmit to the Union since June 1966, as required by its contract with the Union, in the manner set forth in the section of this Decision and Order entitled "The Remedy." (b) Post at its plant in Baltimore , Maryland, copies of the attached notice marked "Appendix."5 Copies of said notice, to be furnished by the Regional Director for Region 5, shall , after being duly signed by the Respondent 's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 5, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. ' The parties' checkoff agreement also applied to initiation fees "which may from time to time be fixed and assessed by the Union," and the employees ' authorizations also applied to such fees. But the record does not show that such fees are an issue in this case. S In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board , and in order to effectuate W. P. IHRIE & SONS the policies of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT refuse to deduct union membership dues pursuant to our agreement with Local Union No. 68, American Bakery & Confectionery Workers International Union, AFL-CIO, and the checkoff authorizations maintained by our employees. WE WILL NOT engage in any like or related conduct in derogation of our statutory duty to bargain with the Union. WE WILL reimburse the Union for all dues we have failed to transmit to the Union since June 1966. W. P. IHRIE& SONS, DIVISION OF SUNSHINE BISCUITS, INC. (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board 's Regional Office, Sixth Floor, 707 North Calvert Street, Baltimore , Maryland 21202, Telephone 752-8460, Extension 2159. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE A. NORMAN SOMERS, Trial Examiner: This case, with all parties represented , was heard in Baltimore , Maryland, or October 18 and 25, 1966, on complaint of the General Counsel,' alleging that Respondent, by repudiating the checkoff provision of its contract with the Union (upon the Union's losing a union-shop "deauthorization" election), defaulted in its bargaining obligation with the Union in violation of Section 8(a)(5) and (1) of the Act. The parties presented evidence and oral argument , and the General Counsel and Respondent have filed briefs. Upon consideration of the entire record,2 the arguments of counsel both oral and written , and my observation of the witnesses , I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The Respondent, W. P. Ihrie & Sons, Division of Sunshine Biscuits , Inc., is a New York corporation operating in Baltimore , Maryland, where it makes and sells potato chips and similar items. During the preceding I Issued August 24, 1966 on a charge filed by the Union on June 22,1966 169 representative year , the sale and shipment of its products outside of Maryland and its receipt of goods from outside the State exceeded $50,000 in each category. It is not disputed and I find that Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Charging Party, Local Union No. 68 , American Bakery & Confectionery Workers International Union, AFL-CIO, hereinafter called the Union, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE A. The Union-Shop and CheckoffProvisions of the Contract, and the Checkoff Authorizations Signed by the Employees On November 22, 1965 , the Union after being duly certified , following a Board election , as exclusive bargaining representative of a unit composed of Respondent's (approximately 30) production and maintenance employees , executed a 3-year contract with Respondent covering these employees. The contract, among other things, provided for a grievance procedure culminating in arbitration , and it also included a union- shop provision and a checkoff clause. Article II required that all regular employees , after the 30-day grace period prescribed by the Act, shall, as a condition of continued employment be members of the Union . and thereafter shall continue membership in good standing in the Union by tender of periodic dues and initiation fees.... Article II-A provided that: From the last pay of each month the Company shall deduct the dues which may from time to time be fixed by the Union for the next succeeding months [and also the initiation fees of newly hired regular employees] but only in reference to such employees who shall have authorized the Company in writing to deduct such dues . This authorization shall remain in effect for the duration of this agreement , or for a period of one year from the date thereof, whichever occurs sooner. The Company shall transmit such dues to the official designated by the Union to receive the same. Ultimately, in January 1966 (after a first but abortive petition by a number of employees to have the Union "deauthorized" of its power, under the union -shop clause, to require membership as a condition of the job) all employees signed the two papers submitted to them by the Union; namely, an application for membership in the Union , and a checkoff authorization card. The card stated that the employee authorized the employer to deduct from his wages and pay to the Union his monthly dues ($5 in this case), that the authorization was "irrevocable for the period of one year or until the termination of the [contract], whichever occurred sooner ," and that it shall continue in effect "unless written notice to terminate this authorization is given by [the employee] to the Employer and the Union, by registered mail, not more than twenty (20) days and not less than (10) days [sic] prior to the expiration of each period of one year [or of the contract]." 2 As corrected by order issued on notice to all parties. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Events Culminating in the Deauthorization Election and Respondent 's Repudiation of the Checkoff Provision 1. The basic facts as relied on by General Counsel From the point of view of the General Counsel,3 all we need to know further is the following: Pursuant to a new petition duly filed April 15, 1966, a "deauthorization" election was held on May 26, 1966, under Section 9(e)(1) of the Act.4 In that election a majority of the employees in the unit voted in favor of withdrawing from the Union the authority, under the contract, to require membership in it as a condition of employment.5 The Regional Director, on June 6, certified the results to the Respondent and the Union. Thereupon, on June 8, the Respondent wrote the Union that it deemed the deauthorization vote to have "eliminated" both the union-shop clause and the checkoff provision of the contract and that it was accordingly returning to the employees the $5 that it had deducted from the employees' wages the last week in May toward payment of the June dues. The letter also enclosed a copy of a notice Respondent was posting that day to the employees, reading: AT THE U.S. LABOR BOARD ELECTION HELD ON MAY 26, 1966, YOU VOTED 20 TO 9 TO REMOVE THE UNION SHOP PROVISIONS FROM YOUR LABOR CONTRACT. ON JUNE 6, 1966, YOUR VOTE BECAME FINAL AND OFFICIAL. THIS ELECTION RESULTED FROM THE PETITION WHICH YOU FILED WITH THE U.S. LABOR BOARD. AS A RESULT OF THE FILING OF THIS PETITION AND YOUR MAJORITY VOTE AT THE ELECTION, NONE OF THE EMPLOYEES OF W. P. IHRIE & SONS ARE NOW REQUIRED TO BE UNION MEMBERS AND PAY UNION DUES TO KEEP THEIR JOBS. ALL OTHER PROVISIONS OF YOUR LABOR CONTRACT REMAIN IN EFFECT. THE $5.00 UNION DUES WHICH YOUR COMPANY WAS REQUIRED TO DEDUCT FROM YOUR PAY CHECK DATED MAY 25, 1966, COVERING UNION DUES FOR THE MONTH OF JUNE, WILL BE RETURNED TO YOU PROMPTLY. ANY OF YOU WHO WANT TO BE MEMBERS OF THE UNION AND PAY UNION DUES MUST CONTACT THE UNION REPRESENTATIVE AND MAKE ALL THE NECESSARY ARRANGEMENTS WITH HIM. YOUR COMPANY CAN NO LONGER HANDLE ANY OF THESE ARRANGEMENTS. IF YOU HAVE ANY QUESTIONS ABOUT THIS SITUATION PLEASE FEEL FREE TO SEE ME AND I WILL DO MY BEST TO ANSWER ANY OF YOUR QUESTIONS. PAUL D. IHRIE GENERAL MANAGER 3 And the Union also, whose position concurs with that of the General Counsel, unless otherwise indicated. ' Section 9(e)(1) provides that upon the filing with the Board of a petition by 30 percent or more of the employees in the unit covered by an employer-union agreement , that they want to rescind the authority of a labor organization to make membership in it a condition of employment, "the Board shall take a secret ballot of the employees in such unit and certify the results to such labor organization and to the employer " 5 Of 31 eligible employees, 29 cast valid ballots, 20 in favor and 9 against deauthorization 6 The paper was not placed in the record, nor was evidence of its contents otherwise proffered. However, in the brief filed with The notice was posted from June 8 to 13, inclusive. On June 13, Respondent refunded to all the employees the June dues which it had deducted from their wages on May 25, and ceased checking off dues any further. No employees, either before Respondent's letter of June 8 or since, submitted to Respondent or the Union a written revocation of the checkoff authorization, or notified either party of an actual or intended resignation from the Union. Also, before Respondent wrote the Union on June 8, it neither notified the Union nor consulted with it concerning its intended action. (The Union, in response, did not ask for any consultation. It replied by a letter from its attorney to the effect that it was filing with the Board the 8(a)(5) and (1) charge which initiated the instant proceeding (supra, fn. 1).) 2. The "background" facts as relied on by Respondent The Respondent contends that to evaluate the situation properly, we must take account of all events from the time the contract was executed to the time it repudiated the checkoff provision on June 8. In its answer to the complaint in this proceeding, Respondent seemed to assert as its defense the broad proposition, similar to that stated in its letter to the Union of June 8, that the majority vote in the deauthorization election "rescinded" both the union-security provision and the checkoff clause. However, at the hearing, in response to my request for a threshold statement of the positions of the parties preceding the presentation of evidence, Respondent, through counsel, stated it was not urging this as a general proposition but as the specific "practical" result of all the circumstances of this case from their outset. I therefore permitted Respondent to develop what occurred from the time the contract was signed to the time it repudiated the checkoff obligation in June. When the contract was signed on November 22, 1965, Respondent posted on its bulletin board a copy of the contract and an abstract of its terms. Thereupon employee Almeta Ball and about seven other employees told Robert Disney, the plant manager, that they did not wish to pay dues to the Union and asked how they could get out of doing so. Disney passed this on to Paul Ihrie, general manager of Respondent. Pursuant to consultation with Respondent's counsel, Ihrie prepared a paper which was signed by at least 30 percent of the employees and brought by Mrs. Ball to the Regional Office.6 The Regional Office thereupon prepared a deauthorization petition on the Board's standard form, and Mrs. Ball signed it on November 26. The Regional Director sent Respondent and the Union a copy of the petition with a notification of its filing. The Union then, on December 1, filed a charge, and on December 15 an amended charge with the Board, accusing Respondent of having, in violation of Section 8(a)(1) of the Act, instigated the deauthorization petition me, Respondent's counsel , who drafted the document, volunteers the information concerning its contents Since it accords with the assumption on which the record shows Respondent acted throughout the events here considered , it is pertinent to reproduce Respondent 's admitted version of the document it prepared to assist the deauthorization group in their project It reads. We, the undersigned, hereby notify the Labor Board that we desire an immediate election of all of the employees of this company for the purpose of deciding whether or not Articles II and Ila should be removed from the contract under the de- authorization setup of the Board W. P. IHRIE & SONS and assisted the employees in it. The charges were disposed of by an informal settlement agreement, executed January 19, 1966, by both parties and approved by the Regional Director, in which Respondent promised not to repeat this conduct or otherwise infringe upon the employees' Section 7 rights, and agreed to post a notice to that effect, which it did for the customary 60 days. On December 22, while the charges were still pending, the Union had written the employees reminding them of the union-shop and checkoff clauses in the contract and of the expiration of the grace period for joining. The Union enclosed, as it put it, for the "convenience" of the employees, a membership application and also a dues- checkoff authorization card, with a request that they be signed and returned to the Union. On December 27, Respondent posted a notice saying: It has been brought to our attention that you have received a letter from [the Union] calling your attention to the union shop and checkoff clause in our labor contract. A petition to take these clauses out of your contract has been filed by your members with the Labor Board of the United States Government. As we told you in the notice posted in the bulletin board on December 10, 1965, until final action is taken on your petition by the Labor Board you are not required to join the Bakery Union, sign a Bakery Union membership card, or pay any dues. About this time, Mrs. Ball, employee Elizabeth Brooks, and another employee called at the Regional Office to inquire about the status of the deauthorization petition. They were informed by Mrs. Louise Felton, the field examiner assigned to the matter, that it was held up pending investigation of the Union's charges against Respondent. When the charges were settled in January, Field Examiner Felton informed Mrs. Ball and her group that the deauthorization petition was subject to dismissal because of the assistance given the project by the employer, but that they could file a new petition after the expiration of the 60-day notice-posting period in the unfair labor practice case. Mrs. Ball then withdrew the petition "without prejudice." Thereupon in January, all the employees signed the union membership applications and checkoff authorization cards.' After this Respondent checked off from the employees' wages the dues for each month from February to May inclusive, in the manner provided in article II-A of the contract. As earlier stated, Respondent ceased doing so in June following the deauthorization election held May 26 on the new petition filed in April. Respondent's witnesses testified that immediately after the election of May 26 employee Ball asked Plant Manager Disney when the employees would ' Mrs. Ball testified that Field Examiner Felton told her group they had to sign the checkoff authorization card. This is not credited As she and employee Brooks testified, the group asked Mrs. Felton if the Union was within its "rights" when it "threatened" the employees with discharge if they did not join, and Mrs Felton replied that under the contract as then in force, membership in the Union was a condition of their job and the Union had the right to tell them so Mrs Ball's testimony that Examiner Felton said they had to sign the checkoff authorization reflects her interpretation of Examiner Felton's affirming to them that membership in the Union was a requirement of the job It is evident that Mrs. Ball assumed that a membership application and a checkoff authorization were part of a single mandatory package-a rather natural and reasonable assumption , under all the circumstances, from the time the Union, in its letter of 171 be refunded the $5 that Respondent on May 25 had withheld from their wages toward payment of the union dues for June. Disney passed this on to Ihrie, and Ihrie then consulted Respondent's counsel. The latter then drafted Ihrie's letter of June 8 to the Union repudiating the checkoff obligation and Respondent's notice posted that day to the employees. Respondent elicited testimony from employees Ball and Brooks concerning the discussions with Board agents in connection with the second petition. Since as Respondent stressed, and still does, at no time since the withdrawal of the first deauthorization petition did any employee consult with Respondent in regard to the second petition or disclose the nature of the discussions with the Regional Office, Respondent could hardly have relied on the course of dealings of these employees with the Board's agents for the action Respondent took on the strength of the outcome of the deauthorization election. However, the discussion with the Regional Office will be briefly sketched for such bearing as the reasonable expectation the employees might have on the ultimate issue. In April, employees Ball and Brooks and another employee inquired at the Regional Office about filing a new petition. They testified they were referred to a "gentleman" who advised them to prepare a paper for the employees' signatures, this time in their own "wording" and "handwriting." On April 12, Mrs. Ball submitted a handwritten paper, prepared by her and signed by 20 employees, which read: Petition to National Labor Relations Board April 12th, 1966 We the undersigned, employees of Mrs. Ihries Potatoes Chip Co., would like to stop paying union dues to Local#68 AFL-CIO and have the Closed shop clause removed from our contract" The gentleman to whom Mrs. Ball presented the paper said it would be examined for conformity with Board requirements. The Regional Office thereupon prepared on its standard form the deauthorization petition signed for Almeta Ball on April 15, which culminated in the deauthorization election held on May 26. Mrs. Ball testified that in her conversation of April 12 she asked the gentleman to whom she had submitted her paper whether this meant "that we won't have to pay union dues, if we are fortunate enough to win," and that the gentleman answered it did, but that in all other respects they would December 22, reminded the employees of their membership obligation , and enclosed the membership application and the checkoff-authorization card for their "convenience " 8 Upon the refusal of the General Counsel's representative to produce the original because it was a "showing-of-interest" document, which is part of the Board 's "confidential files," I admitted into evidence the copy which Mrs. Ball testified she retained in her possession from the time she drafted the paper given to the Region. Respondent saw this paper for the first time only 2 or 3 days prior to the hearing in this case The occasion was when Respondent's counsel, in preparing for this hearing, asked Mrs Ball if she had a copy of the document she had brought to the Board in April 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD still "be under the contract" for its 3-year duration.9 It does not appear that the gentleman in question was told of their having meanwhile joined the Union and signed checkoff authorization cards. On the other hand, a more positive indication of the source of the assumption of the employees concerning the effect of a successful deauthorization vote is the one which Respondent is shown to have expressed in its various communications throughout the events here reviewed-namely, that such a vote, as Respondent put it in its notices to the employees in December, would "take [the union-security and checkoff] clauses out of the contract," or as it put it in its letter of June 8 to the Union "eliminated" them, or, as it put it in its answer to the complaint, "rescinded" them. It must be said, however that the language of the preelection notices and the phraseology of the question on the deauthorization ballot are hardly calculated to shed a new light on such a view, if entertained.10 C. Conclusions 1. The opposing contentions concerning the impact of the deauthorization result on the checkoff clause The General Counsel contends that the deauthorization vote merely did away with the clause requiring membership in the Union as a condition of employment, but did not eliminate the clause requiring Respondent to check off the union dues from the employees' wages in accordance with their checkoff authorizations, and that by unilaterally repudiating its obligation under the checkoff clause in its entirety, at a time when no employee had submitted a revocation of the authorization or a resignation from the Union, Respondent "modified" a term of the agreement, and thereby violated its bargaining obligation under Section 8(a)(5) and (1) of the Act. Respondent, on the other hand, shying away, as previously stated, from its prior broad assumption concerning the effect of a deauthorization vote as such on the checkoff clause, contends that the circumstances taken as a whole gave the employees reason to think they could rest on the results of the deauthorization vote, without more, and justified the course it, Respondent, took. Each side claims support for its position in Penn Cork & Closures, Inc., 156 NLRB 411. There, after a majority of the employees voted to withdraw the Union's authority under the contract to require membership as a condition of employment, they delivered to the employer and the union a paper signed by each, stating that they were resigning from the union as of that date and that "no dues shall be deducted from our wages." At the union's request, the employer continued to deduct the dues from the employees' pay and notified the employees that it was doing so because the checkoff authorization they signed "by its terms cannot be revoked at this time," but that the 9 Mrs. Ball gave this testimony on her direct examination. On cross-examination , she claimed that every other Board agent, including Mrs. Felton , told her the same thing in the discussions during the first petition . I do not credit this, since on direct Mrs Ball detailed her various conversations with Board agents during the first petition , and it would seem clear that she had no discussion with any Board agent concerning the legal effect of a "successful" deauthorization vote until she introduced the subject to the "gentleman " with whom she discussed the filing of the second petition Nor do I credit the testimony of employee Brooks corroborating Mrs. Ball concerning the alleged talks on that subject preceding the April visit. Mrs. Brooks testified they raised the subject in presenting the second petition because they disliked what Mrs dues were "being kept in a special fund," and that "when the right to the dues has been judicially determined, the dues will be either refunded to [them] or paid to the Union." The Board concluded that in these circumstances the employer "by continuing to deduct union membership dues pursuant to checkoff authorizations" unlawfully assisted the union in violation of Section 8(a)(1) and (2) of the Act, and ordered reimbursement of all dues checked off from the pay of these employees from the date they resigned from the union and "attempted to revoke their dues checkoff authorizations." The General Counsel sees the followup action taken by the employees in Penn Cork as the indispensable basis for the employees' being released from their individual checkoff authorizations and of the employer's being relieved of the obligation to check off the employees' dues as stated in the contract. Respondent, on the other hand, sees the case as supporting the proposition that the strict language of the individual checkoff authorizations, and by that token the checkoff clause of the contract, can be overcome by the particular circumstances of the case. The trough in which each side finds nourishment is the Board's treatment of the contention there made by the union" "that the right to discontinue union membership is not the right to revoke outstanding checkoff authorizations inasmuch as signing a checkoff authorization is optional with employees and not dependent upon the existence of union security." The Board observed (p. 414): Checkoff is optional, of course, but on the facts before us we cannot agree that the exercise of this option by employees is in all circumstances independent of the impact of union security. Here the Respondent and the Union had agreed to a contract containing both union-security and checkoff provisions. The contract not only required the employees to be union members but offered them the convenience of paying membership dues effortlessly through wage deduction which the Employer agreed to make. When executing these checkoff authorizations, the employees can hardly have been unmindful of the fact that they had to pay union dues. In these circumstances it would be unreasonable to infer that all employees who authorized the checkoff would have done so apart from the existence of the union- security provision and the necessity of paying union dues, or to infer that these same employees would, as a whole, wish to continue their checkoff authorizations even after the union-security provision was inoperative. Hence we conclude that when there has been an affirmative deauthorization vote, outstanding checkoff authorizations originally executed while a union-security provision is in effect become vulnerable to revocation regardless of their terms. Felton said to them in the talks during the first petition (supra, footnote 7). They could hardly have felt so if she had told them what they claimed the gentleman had said to them in April and which, Mrs Brooks testified , pleased them 11 The Board's notice of election (which was posted at the plant for about 3 days before the deauthorization election) contained a sample ballot showing that the employees were to vote "Yes" or "No" on the following question: Do you wish to withdraw the authority of your bargaining representative to require, under its agreement with the Employer, that membership in the Union be a condition of employment 9 11 The employer stood mute as a neutral "stakeholder." W. P. IHRIE & SONS The General Counsel stresses that being "vulnerable to revocation" is not the same as having been revoked, and that until the employees have exercised the option achieved by the deauthorization vote of resigning from the Union and revoking the checkoff authorization the checkoff authorizations continued in effect, and so too did the Respondent's obligation under article II-A of the contract to check off their monthly dues to the Union. Respondent meets the above with the contention, previously stated, that the employees, as a result of their course of dealing with the Board, had reason to believe that the deauthorization vote as such would accomplish for them their declared objective of being free of any further dues obligation to the Union, that no one advised them of the need for the followup action of the kind taken in Penn Cork, and that Respondent was in no position to advise them because its hands were tied and lips sealed by the restraints placed on it in the settlement of the prior unfair labor practice proceeding. This explanation, whatever its plausibility, would account for Respondent's construing the vote of 20 of the 31 employees in the unit (supra, footnote 5) as an implied severance from the Union and revocation of the checkoff authorization. But what of the other 11-the 9 who voted against deauthorization and the 2 who did not vote? Respondent' s answer is that it could not distinguish the majority who wanted out from the minority who might still have wanted in, so it wiped the slate clean as to the lot. But would that not have been reason to stand by and wait for those who wanted out to come forward and say so in the manner that the checkoff authorization cards said they must do? If indeed Respondent felt itself in the dilemma it claimed, it would seem rather strange that it acted immediately on the receipt of the certification of the results of the deauthorization election, instead of either waiting for the defectors to identify themselves or communicating its asserted dilemma to the Union so as to exchange views regarding a practical solution. On the other hand, the Union too could have initiated steps with Respondent to try to salvage the checkoff clause in respect to the remnant still adhering to it. It did not do so. This may have been because the Union saw some hazard in a communication to the employees that if they want to be free of any further obligation to the Union they must take some followup action of the kind taken by the employees in Penn Cork. Such a course could touch off a stampede of resignations that might well carry along all or part of the loyal remnant in its momentum. Or it may have felt that it was not incumbent on it to suggest to the working force the taking of steps that were adverse to its own interests. Whatever its reasons, the Union did not initiate any 12 Crown Zellerbach Corporation, 95 NLRB 753; McDonnell Aircraft Corporation, 109 NLRB 930, 934-935; United Telephone Company of the West, 112 NLRB 779; Morton Salt Company, 119 NLRB 1402, National Dairy Products Corporation, 126 NLRB 434; Montgomery Ward & Co , Incorporated, 137 NLRB 418, 423, Hercules Motor Corporation, 136 NLRB 1648, 1652 " In Title 11 of the Labor- Management Relations Act of 1947 (establishing the Federal Mediation and Conciliation Service) Congress declared Sec 203 (d). Final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settlement of grievance disputes arising over the application of an existing collective bargaining agreement To avoid misunderstanding, the policy has always been limited to instances where the issue turned on the interpretation of the contract as distinguished from the Act Thus it was not applied to cases where the dispute turned on a direct application of principles of the statute, such as, for example, a discriminatory 173 overtures with Respondent for a practical way to distinguish the loyal from the defecting employees. The above is not to say that overtures by the Union to the Respondent would necessarily have borne fruit, since it is manifest that however Respondent hedges on that position now, it was quite explicit from the outset about assuming that if the union-security clause were voted out in the deauthorization election, the checkoff clause would go with it. Since Respondent has avoided taking that position before us in this litigation, I do not see that we are called upon to reach out on our own to pass upon that broad proposition. 2. Applicability of the policy of relegating disputants to their contractual remedies The sum of all the foregoing, it would seem to me, is to call into play that aspect of Board policy in which it sometimes, in the exercise of a sound discretion, leaves the parties to the remedies provided in the contract they made. As earlier noted, the contract here provides a grievance-arbitration machinery for resolving disputes concerning the interpretation of provisions of the contract-albeit it was neither used nor sought to be invoked by either party. For years the Board as a matter of policy, where the unfair labor practice issue turned not on the interpretation of the Act but on the interpretation of particular clauses in a contract, refrained from deciding the unfair labor practice issue and relegated the parties to their contract remedies. 12 The policy stemmed from the belief that it would advance the objective of industrial peace and stability if the parties were encouraged to incorporate in their contracts a peaceful machinery for resolving disputes over the interpretation and application of provisions of the contract.13 The policy was also an accomodation between two doctrines that are sometimes in collision course-namely, at the one end, that "the breach of a contract is not per se an unfair labor practice"14 and at the other, that an unfair labor practice does not cease to be such merely because it is also a breach of contract.15 Such a policy would have been sufficient to dispose of the instant case, since the unfair labor practice accusation is admittedly premised upon the claim that Respondent breached the checkoff provision of the contract, and the dispute turns on the scope of that clause and the individual checkoff authorizations. However, the Board in a recent line of decisions has limited the doctrine. In Cloverleaf Division of Adams Dairy Co., 147 NLRB 1410, the Board declared that except where there is an outstanding arbitration award or a pending arbitration proceeding, discharge case The Board, in such instance, has always decided the unfair labor practice issue even where discrimination against employees was forbidden by the collective -bargaining contract and the contract had a provision for processing grievances through arbitration. Thor Power Tool Company, 148 NLRB 1379, 1381, enfd. 351 F.2d 584,587 (C A 7) The only exception is where the grievance-arbitration machinery has advanced to the stage of an actual rendition of an arbitrator 's award There the Board, since Spielberg Manufacturing Company, 112 NLRB 1080, has deferred to the award if rendered under the safeguards laid down under the doctrine of that case See Precision Fittings, Inc., 141 NLRB 1034,1040-43 '4 United Mine Workers (Boone County Coal Corp) v N.L.R.B., 257 F.2d 211 (C.A.D.C.). i" See Dunau, Contractual Prohibition of Unfair Labor Practices Jurisdictional Problems, 57 Col L Rev. 52, 65, 80 (1957). 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which should "also put at rest the unfair labor practice controversy in a manner sufficient to effectuate the policies of the Act," the Board will decide the unfair labor practice issue even if in the process it must also interpret the contract. The Cloverleaf doctrine underlies a number of recent cases in which the Board decided the unfair labor practice issue despite the fact that to do so it had to interpret the contract, and the contract provided a grievance-arbitration machinery for disputes over interpretation and application of its provisions, but which the parties had not used or which had not advanced to the stage of an arbitrator's award rendered or being awaited. 16 A fortiori would the Board not permit a question of contract interpretation to deter it from deciding the unfair labor practice issue where the contract does not provide for arbitration. 17 An analysis of the new line of decisions, however, indicates that they represent a limitation on, not an abandonment of, the old doctrine. The limitation, as a reading of the pilot cases of Cloverleaf, Smith Cabinet, and Century Papers show (supra, footnote 16), was the result of efforts by respondents to avoid liability for conduct which but for the contract would clearly be a violation of the Act-in each instance a unilateral change of working conditions-by claiming that under the contract the union waived the right to be consulted about the change. The Board, in each instance, on examination of the contract, concluded that the reliance on the contract was a sham, and did not warrant deferral to the grievance-arbitration machinery of the contract, since the issue, in essence, turned on the interpretation of the statute, not the contract. 18 In the case before us, the contract is not raised by the accused as a defense, but by the accuser as the affirmative basis for the accusation. The conduct is not one which but for the contract would be a violation of the Act, but one which but for the contract would not be a statutory violation. Indeed, the General Counsel admits that if there has been no breach of the contract here, then no unfair labor practice has been committed. On that score, this case differs from Penn Cork. There the basis for the accusation against the employer was that in violation of the strictures in the Act against assisting a labor organization, the employer was taking money from the employees and giving it to the Union, and the employer asserted his obligation under the contract as the, justification for its conduct. Here, as stated, the obligation under the contract is asserted as the affirmative basis for the accusation that the statute was violated, namely, that because the employer breached the provision of the contract requiring him to take from the employees and give to the Union, it thereby violated the Act. On the face of it at least, an accusation thus founded solely on a breach of a contract conflicts with the previously stated proposition that a breach of a collective- bargaining contract as such is not a violation of the Act.19 The "as such" or "per se" (supra, footnote 14) or "ipso facto" qualification (C & S Industries, 158 NLRB 454) has undergone progressive shrinkage through the application of the competing policy underlying Section 8(d) of the Act. (Though the General Counsel does not mention Section 8(d), it is presumably, if indeed not the necessary, basis for his claim that a violation of Section 8(a)(5) was committed.) Section 8(d) forbids a party to a collective -bargaining contract to "terminate or modify such contract" except under the procedures there prescribed (which were not followed here). On that score, the General Counsel relies on such cases as C & S Industries, supra, and Crescent Bed Co., supra, footnote 16, enfd. 63 LRRM 2480 (C.A.D.C.). There the Board found 8(a)(5) violations based upon 8(d)-forbidden modifications of the contract by the employer. But in each instance there was no genuine issue over whether what the employer did was in fact a modification. In C & S Industries, the employer, as in Cloverleaf and Smith Cabinet, changed a working condition. It instituted an incentive pay system (about which the contract was silent) and defended on the ground that the contract did not forbid it (and anyway, it had several months earlier broached the general subject to the Union). The Board found the change to have been made in the teeth of the explicit provision in the contract that "there shall be no change in the method of payment ... without prior negotiations and written consent of the Union." [Emphasis supplied.] In concluding that the employer thereby "modified" the contract within the meaning of Section 8(d), and hence violated Section 8(a)(5), the Board stated the following qualification (p. 458): Of course, the breadth of Section 8(d) is not such as to make any default in a contract obligation an unfair labor practice .... But ... where an employer unilaterally effects a change which has a continuing impact on a basic term or condition of employment, wages for example, more is involved than just a simple default in a contractual obligation. [Emphasis supplied.] 16 Smith Cabinet Manufacturing Company, Inc, 147 NLRB 1506; Century Papers, Inc, 155 NLRB 358; Crescent Bed Company, Inc, 157 NLRB 296, enfd 63 LRRM 2480 (C.A.D C , Nov. 16, 1966), C & S Industries, Inc., 158 NLRB 454; Long Lake Lumber Company, 160 NLRB 1475 But see Flintkote Company, 149 NLRB 1561 17 C & C Plywood Corporation, 148 NLRB 414 The Ninth Circuit set aside the Board's 8(a)(5) order in that case (351 F 2d 224), on the ground that where an issue of contract interpretation is involved, the parties must be relegated to their breach-of- contract remedies under Section 301 of the LMRA, and the Board is divested of power to decide the issue The question of whether the Board retains or is divested of its authority in such an instance is pending on certiorari granted by the Supreme Court in that case 384 U S 903 The discussion in this Decision assumes the existence of the Board's power to decide the unfair labor practice issue despite the need for interpreting the contract We here are concerned with when the Board, as a matter of discretion and in advancement of the policy earlier stated , will voluntarily refrain from deciding the issue and relegate the parties to their contract remedies See Flintkote Co , supra, 1563, fn 1 iS Cloverleaf (p 1415). "[T] he . dispute before us . involves basically a disagreement over statutory rather than contractual obligations " Smith Cabinet (p 1508)- "The Union's complaint . does not grow out of the collective-bargaining agreement or its administration [but] is directed at . the denial of a statutory right of the Union to bargain about terms and conditions of employment which are not covered by the contract." Century Papers "Respondent's effort[s] to invoke a question of contract interpretation is wholly untenable and must fall in view of the plain and unambiguous provisions of the contract." 11 The Congress which enacted the Taft-Hartley Act of 1947 rejected a proposal to make the breach of a collective -bargaining agreement as such an unfair labor practice , and provided instead a remedy by court suit under Section 301 H. Conf. Rept. 510, 80th Cong , 1st Sess 41-42; 1 Leg Hist 545-546 (1947) The House Conference Report stated that "once the parties have made a collective bargaining contract , the enforcement of that contract should be left to the usual processes of the law and not to the National Labor Relations Board " 1 Leg Hist at 546. W. P. IHRIE & SONS And as reasons for refusing to defer to the contract's grievance-arbitration procedure (which was not utilized by either party) the Board stressed that (pp. 459-460): Here we do not have an issue which, although cast in unfair labor practice terms, is essentially one involving a contract dispute, making it reasonably probable that arbitration will put the statutory infringement finally at rest in a manner sufficient to effectuate the policies of the Act. Nor does resolution of the unfair labor practice issue here involved primarily turn on an interpretation of specific contractual provisions of ambiguous meaning, within the special competence of an arbitrator to determine. [Emphasis supplied.] I would think the matter of whether "the issue . primarily turns on an interpretation of specific contractual provisions of ambiguous meaning" is the key to the problem. This appears in even clearer focus in the Crescent Bed case. The central issue there was not the alleged breach or modification by the employer of particular parts of the contract but the employer's total repudiation of it (on the ground that though it was signed by itself and the local, the International, whose approval and countersignature were required, had unduly delayed signing it). The Board held that despite the delay the contract did go into effect, and Respondent's complete repudiation of the product of the prolonged negotiations was a violation of Section 8(a)(5). The Board also found that "other changes unilaterally instituted by Respondent in the terms and conditions established by the contract, such as its refusal to process grievances, to accept Union checkoff cards, and to furnish the Union with an up-to-date seniority list, are independent violations of Section 8(a)(5)." The items other than the refusal to accept the checkoff cards are outright violations by an employer of his bargaining obligation with the employees' representative as imposed by the Act. As to the refusal to accept the checkoff cards, no rationale was given for including it among the "independent " violations-except as part of a general caveat to the employer to "honor" the contract as a whole, which in fact, was the remedy the Board provided. See Hyde's Super Market, 145 NLRB 1252, enfd. 339 F.2d 568 (C.A. 9). The Board made no specific mention of the checkoff in its cease-and-desist order, and, in its discretion, refused to require the employer to reimburse the union for dues not checked off, because of the union's own dereliction in delaying prompt execution of the contract by the International. In any event, once the existence of the contract was established, the refusal to accept the checkoff cards was a clear flouting of an explicit term of the contract , involving no dispute over its meaning or application , within the province of an arbitrator . In striking contrast was the Board's statement in that same case regarding a provision in genuine dispute, as follows: ... It is not for the Board to construe the full meaning or effect of the contractual provision by which Respondent was permitted to make certain unilateral changes in incentive rates which has given rise to this 20 In Crescent Bed, a court suit by the union under Section 301 of the Act (supra, fn 19) to compel the employer to go to arbitration (infra, In 21) was then pending but undecided Before the Board , neither side disputed the Board 's concurrent power to decide the unfair labor practice issue if it chose See supra, fn 17 It was merely a matter of discretion whether the Board , in respect to the incentive clause issue , would relegate the parties to their contract remedies or decide that issue, as it did the other issues 175 proceeding.2 The parties are free to pursue their respective contentions as to the proper interpretation of this provision under the grievance-arbitration clause of the contract which is presently in effect and which we are ordering Respondent to abide by. [Emphasis supplied.] 2 United Telephone Company of the West, and United Utilities, Incorporated, 112 NLRB 779, Morton Salt Company, 119 NLRB 1402, National Dairy Products Corporation, Detroit Creamery Division , 126 NLRB 434 As is to be observed, the cases relied on by the Board are from among those cited in footnote 12 of this Decision as illustrative of the policy, preceding the Cloverleaf case, of relegating parties to available , even if unused , contract remedies, where the unfair labor practice issue turns on the interpretation of a contract.20 This indicates that the Cloverleaf doctrine and the line of decisions cited in footnote 16 as illustrative of the "newer" policy, were not intended to put an end to the "older" doctrine, but to assure a more discriminating and selective application of it. The intent was to confine it to instances where the issue "is essentially one involving a contract dispute" and where the particular circumstances justify relegating the disputants to the grievance-arbitration machinery of the contract even before the parties have exhausted its use (cf. Flintkote Co., 149 NLRB 1561), or begun to use it (Crescent Bed, on the incentive rates issue).21 In the instant case, while it is true that a checkoff provision is a mandatory subject of good-faith bargaining in the formulation of a contract (H. K. Porter Company v. N.L.R.B., 363 F.2d 272 (C.A.D.C.), cert. denied 385 U.S. 851), it is also true that the issue here turns on the resolution of the conflict over the interpretation and application of the checkoff clause of the contract as drawn. Was it the intention of the parties that the checkoff clause survive the union-security provision or that with the demise of the one, the other should go too? If the checkoff clause had an independent life of its own, is the entire working force to be regarded as having continued as members of the Union, even though, as a practical matter, the 20 who voted in favor of deauthorization presumably sought to proclaim their desire to be free of all further obligation to the Union, instead of merely to vindicate their freedom of choice in the abstract? The question of whether the employees retained or severed their membership involves the relationship of the Union to its members inter se. Such a relationship is ordinarily controlled by the terms of the "contract" of membership between the Union and the employees who joineed it. I.A.M. v. Gonzalez, 356 U.S. 617, 618. The duties, obligations, and conditions of that relationship are ordinarily the subject of State law, and under our Act, Congress "expressly denied" the assertion of power over them. Id. at 620. Wisconsin Motor Corporation (Local 283, U.A.W.), 145 NLRB 1097, 1121-22. If the entire working force is to be deemed to have continued as members because of failure to take express resignation steps, is the 21 If the Respondent should refuse to go to arbitration, the Union can compel it to do so by court suit under Section 301 of the LMRA for specific performance of the arbitration provision Lincoln Mills of America v. Textile Workers , 353 US 448 Cf supra, fn 20; Steelworkers v Warrior & Gulf Navigation Co , 363 U S 574 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union to be reimbursed to the extent of the dues accruing for the entire working force or should it be equitably limited to the 11 in the unit who did not vote in favor of deauthorization? If the latter, can a practicable method be worked out for identifying them and what efforts, if any, has the Union made to seek out this Gideon's army? This last brings us to the next consideration. Not only is the interpretation of the checkoff clause in this particular instance beset with traps and pitfalls reaching into the domain of the "contract" of membership between the Union and the employees, but our whole travail would be over something less than "basic" to the collective- bargaining relationship. To be sure, the checkoff provides a convenient means of collecting dues from the remnant who are still content to adhere to the Union, but it is hardly assuming too much to say that in an urban community like Baltimore, access to that group for purpose of dues collection is not beset with the kind of difficulty which would undermine the Union's capacity to act as collective- bargaining representative. Such undermining as the Union has sustained, unhappily to it, flows not from the failure to salvage the checkoff in respect to the loyal remnant, but from the deauthorization choice of the majority, which has some of the practical stigmata of a no-confidence vote. This, to be sure, weakens a representative's bargaining position, but it stems from how the Act is written. An adverse deauthorization vote is a hazard a union assumes when it has included a union-shop clause in its contract. But unlike an actual decertification, the result of a deauthorization vote is not irreversible, because the Union, for the duration of the contract, retains the opportunity to prove its value to the working and thus to win the disaffected back to its fold. Also, Respondent must still deal with the Union for the duration of the contract as the employees' exclusive bargaining representative in respect to grievances and other terms and conditions of the job. Should the Respondent fail to do so and resort to 22 We might perhaps have had a different case if the Board, in the deauthonzation proceeding , perhaps in the preelection notices or even on the face of the ballot (see supra, fn. 10), inserted a caveat to employees who joined the Union and signed a checkoff authorization, of the need, even in the event of a contrivances calculated to discredit the Union's status as exclusive bargaining representatives of the employees, the doors of the Agency are still open to what, in such an instance, would be preponderantly an unfair labor practice issue, rather than the other way around. In sum , the situation involves the adjustment of individual equities turning on a multiplicity of variables and particulars, some of them reaching outside the specific issue before us. In the posture before us, they are a briar patch, which, as I see it at least, would make it the better part of wisdom for us not to seek to meet them on the basis of a rationale of general application, that a quasi- judicial body of Government must make. (See Securities and Exchange Commission v. Chenery Corporation, 318 U.S. 80; 332 U.S. 194.) Rather, do they lend themselves to the kind of particularized and individual adjustments, which an arbitrator is in a position to make by applying his sound judgment and sense of equity in interpreting the contract of the Union with the Respondent (as well as of the Union with the employees who became members), in the light of all the particulars unfolded by the situation in this case. As a corollary, his award would apply to the instant situation , and would control no other case for the future.22 On the basis of the foregoing, I reach the following: CONCLUSION OF LAW Under the particular circumstances of this case, it will better effectuate the policies of the Act to have the issue of whether Respondent breached the checkoff provision of the contract resolved under the grievance-arbitration procedure of the contract or under the Union's remedy for breach of contract by court suit under Section 301 of the LMRA (supra, footnote 21) than determined as an unfair labor practice issue arising under the Act. [Recommended Order omitted from publication.] successful outcome of a deauthonzation vote, to take the follow- up action of the kind exemplified by the Penn Cork case Some thought, however, would have to be given to whether this might not create more problems than it solves