W. R. Grace & Co.

500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD W. R. Grace & Co., Southbridge Plastics Division and Grady Eddings. Case 26-CA-3089 November 5, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA On June 24, 1969, Trial Examiner Myron S. Waks 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 Decision, together with a supporting brief, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 and briefs, and the entire record in this case, and adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the complaint be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MYRON S WAKS, Trial Examiner This case, tried at Selma, Tennessee, on January 7 and 8, 1969, pursuant to a charge filed on June 3, 1968,' and a complaint issued September 5, presents the question first whether the Board should defer to an arbitrator's decision issued October 28, and, if such deferral is not warranted, whether the Respondent discharged Loyd Whirley in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, in that it condoned his participation in an unlawful strike and later discharged him, at least in part, for this reason Respondent's motion made at the beginning of the hearing,' which I then denied, and later renewed in its brief, to dismiss the complaint in deference to the arbitrator's award is disposed of in accordance with the decision hereinafter set forth. 'All dates hereinafter referred to occurred in 1968 'On October 16 Respondent had filed a pretrial motion that the Upon the entire record in this case and after due consideration of the briefs filed by the parties, I make the following FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The pleadings establish and I find that the Company is engaged in the manufacture of plastic products at its plant in Corinth, Mississippi, further that the Company, during the 12 months preceding the issuance of complaint, in the course of its business operations received at its Corinth, Mississippi, location, products valued in excess of $50,000 directly from points located outside the State of Mississippi, and, during the same period, sold and shipped from its Corinth, Mississippi, location, products valued in excess of $50,000 directly to points located outside the State of Mississippi Upon these admitted facts, it is conceded and I find that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATIONS INVOLVED The pleadings further establish and I find that Local Union No 759 and the International Union of United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, are now, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act III. THE ALLEGED UNFAIR LABOR PRACTICES The central question presented by the complaint, which alleges a violation of the Act based on the discharge of Loyd Whirley, is whether Whirley's discharge for his role in a breach-of-contract strike was unlawful because Respondent had condoned the unlawful aspect of this otherwise protected concerted activity' The threshhold question, the resolution of which I find makes unnecessary a determination of the issue presented by the complaint, is whether the Board should defer to an arbitrator's award which, inter alia , upheld the Company's action in discharging Whirley A The Discharge of Whirlev In order that the arguments of the parties and my decision concerning the question of deferring to the arbitration award may be fully understood, there is set forth below the circumstances surrounding the discharge of Whirley Upon reporting to work on May 13, at 3 p m (the start of the second shift), the alleged discriminatee, Whirley, a utility laborer for the Respondent since January 17, parked his car in an unauthorized space When Whirley complaint herein be dismissed and that the Board defer to the arbitrator's award, that was denied on December 3 by Associate Chief Trial Examiner Charles W Schneider, who concluded on the basis of the award and the briefs of parties that there were issues presented which might be illuminated by an evidentiary hearing 'There is no dispute between the parties that the strike was in breach of contract or that the discharge of Whirley was based, at least in part, on Whirley's role in the strike 'In setting forth the events which culminated in Whirley's discharge, it has been my intention to refrain from any suggestion as to how I would have ruled on any facts in dispute had I considered the case on its merits 179 NLRB No. 81 W. R. GRACE & CO. 501 returned to his car at 11 p m that night, he found a ticket ha-' been placed under his windshield wiper by the guard and that the wiper was damaged. Whirley repaired the wiper at a cost of $7.50, and on May 14 reported this matter to Personnel Director Robinson, claimed that the wiper had been damaged by the guard who placed the ticket there, and requested that the Company reimburse him for the wiper Later that evening, Robinson spoke to Whirley and informed him that he would have to prove that the guard had broken the wiper before the Company would reimburse him Whirley thereafter related the substance of his conversation with Robinson to his fellow employees And there is testimony which would indicate that this was the precipitating factor in the walkout which followed At 7 p.m. that evening the employees in the print shop including Whirley engaged in a walkout leaving the company premises, they were subsequently joined by a majority of the second-shift employees. The striking employees first gathered in cars and on foot on the road in front of the plant There is testimony that Whirley was one of the first employees to punch out and was observed waving other employees to join the group on the road. During the time the striking employees were on the road Respondent's Production Manager Wayne Small inquired of them the reason for the strike and was told of various grievances including the problem of parking spaces. There is also testimony that Union Treasurer Ralph Lambert told the strikers that they were acting in breach of contract, that he requested them to return to work, and that he stated that the Union might suffer the consequences if they did not The employees were also advised that the company representative would meet with them on the company premises in an attempt to resolve their grievances; however, the striking employees refused to meet with the Company on the plant premises insisting that any meetings would have to be at the union hall This was agreed to and the employees repaired to the union hall where what was described as a noisy meeting ensued. Supervisors Wayne Small and Joe Brewer were present throughout the meeting Personnel Director Robinson, who was not present at the plant when the walkout occurred, arrived at the hall later, and spoke to the employees. There is a sharp conflict in testimony as to what was said by Robinson at the meeting. It is not disputed that Robinson advised the employees that they were in breach of contract and requested that they return to work. General Counsel's witnesses testified that Robinson also told the employees that if they returned to work before the start of the 11 p.m shift no disciplinary action would be taken This was denied by Robinson. Several other witnesses were called by Respondent, including officers of the local union, who testified that they had heard no such promise made. Robinson testified that in fact he had responded to a question in this regard by an unidentified employee by stating he could make no promises since Ira Frantzman, the operations manager, was out of the city and he would have to discuss the matter with him There was further testimony by Robinson and local union officers that after they had returned to the plant they had questioned Robinson, first in the guard house and later in his office, as to what disciplinary action, if any, the Company would take because of the strike, and that Robinson had indicated he did not know because Frantzman was out of the city. According to Robinson, following the walkout he instituted an investigation to learn who the instigators had been, that based on the information disclosed by the investigation he was satisfied that Whirley was a leader in the strike. Robinson then testified that in a later conversation with Whirley he learned that Whirley had been employed by Guardsmark, a guard service company used by the Employer, and because of an agreement with Guardsmark not to hire their employees he had checked Whirley's file and learned for the first time that Whirley had failed to list Guardsmark as a prior employer on his application form Robinson further testified that this was an offense which the Company has regarded as a sufficient basis to deny employment to an applicant or to discharge an employee already on the job The Company would not have learned of Whirley's omission on the employment form in the ordinary course of events and was made aware of it as a result of its activities in connection with the investigation of the May 14 strike According to the Company upon Frantzman's return to the plant on Tuesday, May 21, Robinson discussed with Frantzman what he had learned regarding Whirley's role in the strike and Whirley's failure to disclose his prior employment with Guardsmark Whirley's suspension with a view to discharge in accordance with the terms of the collective-bargaining agreement for what was believed to be his leadership role in the strike and his omission on his employment form was agreed to by Frantzman Whirley was informed of the Company's decision on May 24, when he was suspended with a view to discharge, on May 28, Whirley received his paycheck and discharge papers through the mail B. The Arbitration Proceeding and the Award Upholding the Discharge of Whirley Following his notification of discharge , a grievance signed by Whirley and a union committeeman was filed under the contract on May 31.5 On October 17 an arbitration proceeding was held before Arbitrator Tony Sabella in which the grievances arising from the discharge of Whirley and the disciplinary action taken against participants in the May 25, as well as the May 14 strike was submitted On October 28, the arbitrator issued his opinion and award upholding the Company 's discipline of the strikers including Whirley In his opinion and award , the arbitrator , noted certain facts which are undisputed . Thus the arbitrator noted the stipulation of the parties that the grievants including Whirley had participated in an illegal work stoppage on May 14 and/or May 25, 1968 The arbitrator also noted that the Company in the past had been "plagued by a series of work stoppages " As to the walkouts involved in the case before him the arbitrator found that during the May 14 strike, Personnel Director Robinson "informed the assembled group of their illegal action and requested them to return to work," that "[t]he meeting got out of hand and the Company Officials decided to leave," that shortly thereafter the walkout ended; the arbitrator also found that the May 25 walkout was related to grievant Whirley's discharge. Directing his attention to the May 14 stoppage and Whirley's discharge, the arbitrator found "no decision 'On June 3, Grady Eddings, as an individual , filed the 8(a)(1) and (3) charge in this case alleging discrimination by the Company as to 20 employees including Whirley The charge was filed after a further strike on May 25 to protest Whirley's discharge had resulted in the discharge or suspension of the named employees for their participation in both the strikes of May 14 and 25 or the strike of May 25 only The charge was dismissed as to all named employees except Whirley as to whom this complaint issued 502 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD regarding a discharge was made immediately because plant Manager Frantzman was out of town and no decision could be made in his absence because he had so ordered in the light of the tense situation and threats of walkouts for discharges", that, following Frantzman's return the following Tuesday, "a decision, cleared with the local attorney, to discharge grievant Whirley was made because he was a `leader' in the walkout, had urged the employees to clock out and had falsified his application for employment by not including employment with and discharge by an independent plant protection agency, also employed by the Company." The arbitrator thereafter stated with regard to the May 25 walkout that "The discharge of Whirley even if illegal and in violation of the agreement does not justify the walkout However the discharge of grievant Whirley does not appear to have been in violation of the agreement, or illegal." After rejecting the Union's contention of condonation based on the lapse of time between Whirley's application and his discharge, in part, for falsification of the application, the arbitrator states, "In any event the Company was justified in discharging grievant Whirley for the May 14th walkout " The arbitrator then considered the Union's contention that company officials present at the May 14 meeting including Robinson promised no reprisals if the employees returned to work, concluding, "Based on the entire record the undersigned does not find that such agreement or promise was made." Finally, the arbitrator who did not discuss the cases of the other individual grievants concluded that the factors used to determine discipline was proper and nondiscriminatory C. Analysis of the Issues Presented Regarding Deference to the Arbitration Award discharge, moreover that the limitation on the arbitrator's authority in the collective-bargaining agreement precluded the arbitrator in this case from fully considering the question of condonation which is presented by this complaint In addition the General Counsel urges that the "due process" aspects of the Board's standards were not met According to the General Counsel, because a union officer during the walkout on May 14 expressed some concern to the strikers with regard to potential union liability for the unauthorized strike, the "interests of Loyd C Whirley and the [Union] are not neccessarily identical in this peculiar situation, and thus no presumption of regularity should attach to the arbitration proceedings " Furthermore, the General Counsel argues that because there is no transcript of the arbitration proceeding it is impossible to determine the regularity of the proceeding. It is General Counsel's position that in view of the foregoing the evidence adduced by Respondent on this record is insufficient to establish that the arbitration proceeding was "fair and regular." It is Respondent's position that the Board's standards for deference to the arbitration have been met and that this has been established in the record in this case Respondent argues that the arbitrator's authority under the contract did not preclude his consideration of the issue of condonation under the Act, but rather required it, that the arbitrator in fact considered the question of condonation under the Act, that the arbitrator's decision was not repugnant to the policies of the Act, and that the proceeding was "fair and regular " Thus the issues raised by the parties on the question of deferral to the arbitration are (1) whether the question of condonation posited by the complaint was considered by the arbitrator and (2) whether the arbitration proceeding met the Board's requirement of essential fairness It is well established that the Board is not precluded from adjudicating unfair labor practice charges even though they have been the subject of an arbitration proceeding and award It is also well established that the Board has considerable discretion to respect an arbitration award and decline to exercise its authority over alleged unfair labor practices if to do so will promote industrial peace and stability by encouraging the practice and procedure of collective bargaining The Board's basic guides for its hospitable acceptance of the arbitral process as set forth in Spielberg Manufacturing Company, 112 NLRB 1080, 1082, require as to the arbitration that the "proceedings appear to have been fair and regular, all parties had agreed to be bound, and the decision of the [arbitrator] is not clearly repugnant to the purposes and policies of the Act " In International Harvester Company, 138 NLRB 923, the Board reiterated and elaborated on these standards stating that it would withhold its authority to adjudicate unfair labor practice charges involving the same subject matter, "unless it clearly appears that the arbitration proceedings were tainted by fraud, collusion, unfairness, or serious procedural irregularities or that the award was clearly repugnant to the purposes and policies of the Act." General Counsel, recognizing the Board's policy as set forth above, nonetheless contends that in this case there should be no deferral to the arbitrator's award, which the parties had agreed would be final and binding, because he asserts it did not meet the standards which the Board required In support of his position the General Counsel asserts that the arbitrator did not consider all aspects of the Board's condonation doctrine in upholding the l Whether the question of condonation posited by the complaint was considered by the arbitrator General Counsel's argument on this aspect of the case appears to be bottomed on what he perceives to be the application of a test for condonation at odds with that of the Board's as demonstrated by its decision in Packers Hide Association, Inc , 152 NLRB 655.° The General 'The Board had found on the stipulated facts of that case that the respondent had condoned the discriminatee 's conduct in instigating a breach-of-contract strike and that his later discharge therefore was violative of Sec 8(a)(3) and (1) of the Act In that case the employees, led by the discriminatee , a union steward , had walked out to protest the discharge of Christiansen, a fellow employee, who had refused to perform a temporary assignment Respondent at 2 p m that afternoon told the employees that they could come back to work but that Christiansen was "fired " Later that afternoon , respondent told the union representative "it would be okay" for the employees to return to work but that he would not take back Christiansen, that a meeting would be held with the union the following afternoon All employees returned to work the following day When respondent met with the union the discipline as to Christiansen was adjusted , but the union steward was discharged for instigating the strike The Board in finding condonation concluded on the facts that the respondent in returning the strikers to work said nothing about a meeting with the union and made no reservation , actual or potential, limiting the status of the strikers in any respect upon their return to work The Board noted that at the time of the conversations returning the strikers to work the respondent was aware of the discriminatee 's role in the strike It was the Board's view that the scheduled meeting was to consider the discharge of Christiansen and was not intended by the parties to leave open any question pertaining to the discipline of the strikers, that respondent's decision to return the strikers had been to "forgive and forget" all aspects of the strike including both leadership and participation Accordingly the W. R. GRACE & CO. 503 Counsel concedes that the arbitrator determined that Respondent made no express promise to or agreement with its employees that reprisals would not be taken for the May 14 walkout. However, the General Counsel argues (citing the Board's Decision in Packers Hide, supra) that condonation can occur in a manner other than by express promise or agreement and contends that the arbitrator did not consider this in reaching his decision. In support of this contention the General Counsel argues that the arbitrator's opinion does not reflect his consideration of this aspect of condonation General Counsel argues further that, since the arbitrator's authority under article IV, section 3 of the collective agreement ' was "confined exclusively" to the interpretation of the provisions at issue between the parties and he could not "add to, adjust, or modify any provision of [the] Agreement," this precluded the arbitrator, in determining whether Whirley's discharge was for "good cause,"' from considering whether there was such condonation of Whirley's strike conduct under the Act as to make his discharge unlawful.' Relying on the Board's decision in the Raytheon case,'° the General Counsel urges that since the arbitrator was precluded by the contract from considering the question of condonation under the Act and his opinion does not reflect that he made such a determination, deference to his award would Board concluded that by inviting the strikers to return to work, under the circumstances present, the respondent had condoned the breach of contract The Court of Appeals for the Eighth Circuit which reversed the Board's Decision (360 F 2d 59) viewed respondent's conduct in a different light It noted as regards respondent ' s action in offering to return the strikers to work at 2 p in that "This action should not be resurrected as evidence of condonation as the invitation was not accompanied with an indication of waiver of disciplinary action " It rejected the inference that the meeting the next day was to discuss Christiansen's discharge merely, and found no evidence that the company "had any intention of `wiping the slate clean' and forgiving the strikers' misconduct " The court found nothing was said to indicate that the permissible return to work resolved the problem in that it was for any duration other than until an orderly meeting could be held and the matter discussed In the court 's view there was "an obvious misunderstanding by the Board of the doctrine of condonation " It stated "Condonation can be found and is invocable only where there is clear and convincing evidence that the employer has completely forgiven the guilty employee for his misconduct - and agrees to a resumption of company-employee relationship as though no misconduct has occurred The doctrine prohibits an employer from misleadingly agreeing to return its employees to work and then taking disciplinary action for something apparently forgiven " As discussed infra, the test for condonation articulated by the court, was later cited with approval by the Board in American River Constructors . 163 NLRB No 67 'Art IV, sec 3, provides Jurisdiction and authority of the Arbitrator of the grievance and his opinion and award shall be confined exclusively to the interpretation of the explicit provision or provisions of this Agreement at issue between the Union and the Company He shall have no authority to add to, adjust, change or modify any provision of this Agreement 'The agreement provides (art 11) that - the Management of the Company and the direction of the working force includes the right to discharge for a good cause 'General Counsel' s argument that condonation as applied to Whirley's discharge was considered only as applied to Whirley 's omission on the application form, I find to be clearly without merit It is readily apparent from the arbitrator's opinion that the issue of condonation relating to Whirley's strike activity was considered The arbitrator states (at p 5), "the Company was justified in discharging grievant Whitley for the May 14th walkout" and proceeds to find Respondent made no promise or agreement that there would be no discipline of strikers if they returned to work The arbitrator also found that the delay in the discharge of Whitley was due to the absence of Operations Manager Frantzman with whom such disciplinary action had to be cleared ' '140 NLRB 883, enforcement denied (on other grounds ) 326 F 2d 471 (C A 1) not be warranted under the Board's standards In response to the General Counsel's argument that the arbitrator was precluded by the collective-bargaining agreement from determining the lawfullness of Whirley's discharge under the Act, the Respondent asserts that both article IV, section 3 of the contract, imposing limitations on the authority of the arbitrator, and article II of the contract, limiting discharge to "good cause," must be read together with article VI, section 2, entitled "Non-Discrimination " Under article VI, section 2, the Union and the Company undertake to "abide by and comply with all applicable Federal Laws banning discrimination in regard to hire, promotions and job assignments" and emphasizes that the parties understand "that neither the Company or the Union or their agents or members will discriminate against or coerce any employee because of his membership or non-membership in the Union . ."" On the basis of this provision the Respondent asserts that the contract contemplates prohibitions against discharge under the Act, and the arbitrator perforce was required to consider the unfair labor practice question presented in the complaint in arriving at his decision as to Whirley's discharge under the contract In view of article II and article VI, section 2, of the contract, and in light of the position taken by the Respondent in the arbitration proceeding as well as the language of the arbitrator's opinion, I conclude that the contract required the arbitrator to determine the legality of Whirley's discharge in deciding whether there was "good cause" for the Employer's action. Thus, in discussing the May 25 strike in protest of Whirley's discharge the arbitrator in his opinion states, "The discharge of grievant Whirley . even if illegal and in violation of the agreement does not justify the walkout. However the discharge of grievant Whirley does not appear to have been in violation of the agreement, or illegal." (Emphasis supplied ) Furthermore it appears from the record in this case that the reference by the arbitrator to the lawfullness of Whirley's discharge was to the Act Respondent, who apparently regarded the Act as applicable to the question of whether there had been employer condonation of Whirley's conduct during the May 14 strike, presented the question for the arbitrator's determination within the framework of the condonation doctrine as applied under the Act. Thus in his arbitration brief the Respondent in discussing the question of condonation relied on cases arising under the Act in urging to the arbitrator that the Company's action did not constitute condonation of Whirley's conduct. The cases argued to the arbitrator included inter alia the court's decision in Packers Hide Association v. N L R B , supra, and the test for condonation set forth by the court in that case. "Art V1, sec 2, provides I Both the Company and the Union agree that they will not discriminate against any employee because of sex, race, color, creed, age, nationality or religious beliefs and that both parties will abide by and comply with all applicable Federal Laws banning discrimination in regard to hire, promotions and job assignments It is understood that the application of this Article and Section applies specifically to such discrimination as prohibited by Federal Law such as discrimination due to an employee' s sex, race, color, creed, age, nationality or religious beliefs 2 It is additionally understood that neither the Company or the Union or their agents or members will discriminate against or coerce any employee because of his membership or non-membership in the Union and all employees are equally free to become or not to become members of the Union 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Furthermore, even if the arbitrator was not required under article VI, section 2, to consider the lawfulness of Whirley's discharge under the Act, I nonetheless find, based on the law of condonation argued to the arbitrator, that the law applied in determining condonation was that applied in Board cases. And since the issue presented to the arbitrator was the same as that which is presented by the complaint and I am satisfied that the law applied was also the same as that which would be applied in this proceeding, General Counsel's argument on this aspect of the case would be without merit In concluding that the question of condonation was determined under the law applied in Board cases, I find no merit to the General Counsel's argument that the arbitrator's opinion reflects a test for condonation which would require an express promise by the Employer of no disciplinary action Similarly, I find no merit to the argument that the arbitrator's finding that "Personnal Director Robinson spoke to the employees on the night of May 14, 1968 and `informed the assembled group of their illegal action and requested them to return to work"' demonstrates a misapplication of the Board's condonation doctrine since under the Board's Decision in Packers Hide this would support a finding of condonation In the first place I am not persuaded in this case that because the arbitrator directed his attention to the question of an alleged express promise to forgive the employees' strike activity it follows therefore that the arbitrator did not consider all the circumstances in arriving at his conclusion that there was no employer condonation It appears rather that the arbitrator in directing his attention to the question of an express promise by the Employer was merely meeting the thrust of the Union's factual argument at the arbitration proceeding In addition I note that the arbitrator stated that his conclusion •as to this aspect of the case was "Based on the entire record " Furthermore, I find that the court's decision in Packers Hide, which was argued to the arbitrator, does not delineate a test at odds with that of the Board. For while the reviewing court in Packers Hide believed the Board had applied a test in that case different from that which in its view the law required, the Board thereafter indicated that it had no disagreement with the court regarding the test to be followed For in the latter case of American River Constructors, 163 NLRB No 67, the Board in passing on a question of condonation expressly relied on the test articulated by the court in Packers Hide, stating "A court of appeals has recently stated that the Board's doctrine of condonation 'prohibits I an employer from misleadingly agreeing to return its employees to work and then taking disciplinary action for something apparently forgiven "' Thus reliance by the arbitrator on the test set forth by the court in Packers Hide could not in the circumstances be said to depart from the standards applied by the Board in such cases, so as to have resulted in a decision at odds with the Board's view of the law.' 2 "If the General Counsel by his argument is suggesting withholding deference to the arbitrator's award because the arbitrator' s result in applying a proper test of condonation differs from that which might be reached by the Board , his argument is clearly without merit The scope of review of an arbitrator' s decision does not comprehend withholding deference to an award where the arbitrator , in weighing the inferences which may reasonably be drawn from the facts , has made a finding different from that which the Board may have reached in considering the matter de novo Spielberg Manufacturing Co , supra in any event it does not follow from the Board's opinion in Packers Hide that it would have found condonation in this case Applying the proper test , the issue becomes one of fact turning on the peculiar circumstances in each case In Packers Accordingly, I conclude that the arbitrator was not precluded in this case from considering the issue of condonation as posited by the unfair labor practice complaint, that the issue was litigated, that the law presented for his consideration in resolving the issue was the law applicable in cases arising under the Act, and that his decision, which I find evidences his consideration of the lawfulness of the discharge, in any event does not reflect a misapplication of the law to be applied, and is not clearly repugnant to the policies of the Act 13 2. Whether the arbitration proceeding met the Board's requirements of essential fairness The remaining question raised by the General Counsel's argument opposing deferral to the arbitrator's award is whether the standard of "due process" required by the Board in arbitration proceedings has been met in this case As noted earlier the Board has stated that it will defer to an award "unless it clearly appears that the arbitration proceedings were tainted by fraud, collusion, unfairness, or serious procedural irregularities .. "' ° The grounds urged by General Counsel in opposition to deferral fall short of meeting this standard As more fully discussed below, I find that the fact merely that a local union official at the start of the strike expressed some concern for potential union liability is insufficient particularly on the facts of this case to preclude deferral to the arbitrator's award Similarly, I find that the absence of a transcript of the arbitration proceedings to be an inadequate basis for withholding Board deferral, either as a general matter or in the circumstances of this case Finally, I find that the Respondent in any event has adduced sufficient evidence on this record to vitiate any suspicion of "unfairness" which the General Counsel's contentions may suggest and that nothing further is required The Union's expression of concern for liability for the breach-of-contract strike, I find, would be insufficient, in the circumstances in which it occurred, to infer that the Union had an interest adverse to Whirley so as to raise a substantial question whether the Union adequately represented Whitley in the arbitration. In this case the contract (article III, section 1 and 2) specifically exempted the Union from any liability for a breach-of-contract strike when, as here, the Union did not "encourage, Hide, unlike this case, the Board found, inter aim , that when the employer was discussing the strikers' return to work it had made clear that the employee whose discharge had caused the strike would not be taken back, and at the time of these discussions the employer was fully aware that the alleged discriminatee had instigated the walkout These circumstances may well have contributed to the Board's finding that the absence of any other reservation, such as disciplining the known instigator of the strike in returning the employees to work, constituted condonation by the employer Furthermore in this case, even assuming the arbitrator did not rely on Robinson's testimony that he had stated at the meeting of May 14 that he could make no promises regarding reprisals for the unlawful strike activity, there is the arbitrator's finding that the Company had been "plagued" by a number of walkouts and testimony that during negotiation of the current contract the Employer had stated that employees would be disciplined for future breaches of the no-strike provision "See Denver-Chicago Trucking Company. Inc, 132 NLRB 1416, Modern Motor Express, Inc , 149 NLRB 1507, compare Raytheon Company. supra, Monsanto Chemical Company, 130 NLRB 1097 In view of all the foregoing reasons underlying my conclusions in this aspect of the case, 1 did not find it necessary to rely on, nor did I consider in reaching this result, the arbitrator's postarbitration letter stating that he considered the question of condonation under the Act (Resp Exh 16 "International Harvester Company, supra W. R. GRACE & CO. sanction , or approve" the strike and actively sought to "discourage and endeavor to prevent or terminate" such strike." It was during the act of fulfilling this very contract obligation at the start of the strike that a local union officer remarked that the Union might suffer if the employees did not return to work This remark, which apparently was intended to bring about a cessation of the strike, I find, in view of the Union's exemption from liability under the contract did not reflect any real concern by the Union. Furthermore, apart from finding this evidence in itself to be insufficient as a basis for inferring that the Union would not fully represent Whirley, the record in this case, as discussed more fully infra, refutes this suggestion. Similarly, the argument that the lack of a transcript precludes Board deferral to the arbitration award is unpersuasive both as a general matter and in this case To adopt the view that a transcript of an arbitration proceeding is a sine qua non to Board deferral, as General Counsel has suggested on this record, would impose an unnecessary requirement on the parties and derogate from the full encouragement of the private settlement of disputes by adding a burdensome expense to the agreed-upon method of settlement. This is a very real consideration, as is demonstrated by the fact that in the vast majority of arbitration proceedings no transcript is made ' 6 Moreover, the Board has indicated in Denver-Chicago Trucking, 132 NLRB at 1421, that it will not "fix standards of formality in procedure on the part of grievance and arbitration panels which must be met before their awards could receive endorsement," stating "We consider it enough under Spielberg if the procedures adopted meet normal standards as to sufficiency, fairness, and regularity. As to these, each case must rest on its own bottoms." And, it does not appear that the Board has considered the absence of a transcript, without more, as a sufficient basis to abstain from the exercise of its policy of "hospitable acceptance" to an arbitration award which otherwise meets the Spielberg standards. Thus it appears from a close reading of Modern Motor Express, Inc , 149 NLRB 1507, 1511, that, in Denver-Chicago, supra, wherein the Board deferred to the decision of a bipartite "Under this contract provision there is an additional requirement that the International Union upon written notice from the Local Union or the Employer, will notify the Local Union that the strike is unauthorized and that the employees should cease the violation There is no suggestion in this record that this requirement was invoked , or if invoked , that it was not fulfilled "See Arthur M Ross, The Well Aged Arbitration Case , 11 Industrial and Labor Relations Review, p 262 ( 1958), in which it is pointed out that from a survey conducted by the American Arbitration Association it was learned that in only 22 7 percent of the cases reviewed was there a transcript of the arbitration proceeding it was also noted that in the 22 7 percent of the cases where there was a transcript of the proceeding that the average time from hearing to decision was 4 5 months - in the other 77 2 percent of the cases where there was no transcript the average time from the hearing to decision was only 14 months In this case the contract required that the arbitrator's decision issue within 30 days , which it did "Trial Examiner Thomas Wilson, who presided at the trial in both cases, after recounting the procedure followed in the Denver-Chicago case, noted in his decision in Modern Motor (at 1511), as regards the proceeding before the bipartite board in that case (the Cleveland Committee), that, "On all matters of procedures the grievance machinery in the instant cases was an exact counterpart of these in the Denver-Chicago case In fact the Cleveland Committee had added one improvement in that it provided a transcript of the proceedings " (Emphasis supplied ) 505 board for the resolution of disputes under the governing collective-bargaining agreement, there was no transcript of the hearing before the bipartite board " Finally where there is no transcript of the arbitration proceeding and there is some evidence which purports to derogate from a finding of essential fairness in the proceeding, this itself may be litigated The ultimate determination of whether deference is to be accorded the arbitral award can be made on the basis of evidence developed in the record of an unfair labor practice proceeding. Such a hearing, as here, can serve to illuminate whether there has been essential fairness in the arbitration proceeding. Based on the record in this case a refusal to defer to the arbitral award for the lack of a transcript of the proceeding would be unwarranted Respondent Company established through witnesses called in this proceeding that evidence was adduced under oath at the arbitration hearing which would have fully developed what occurred at the meeting during which the Company's conduct is asserted to have constituted condonation. Thus, the evidence in this record demonstrates that the parties were provided the opportunity to present their conflicting views of what occurred Respondent's witness Robinson stated in this record that he had testified substantially the same in this proceeding as he had at the arbitration hearing. And it is uncontradicted that the alleged discriminatee was represented by an International union representative, that he was afforded the opportunity to call witnesses, and indeed called 12 or 13 witnesses who testified at the arbitration proceeding concerning the events which had occurred, including the statement allegedly made by Robinson that there would be no disciplinary action if the employees returned to work This evidence, as well as the arguments made to the arbitrator as reflected by his opinion, adequately refutes any suggestion that Whirley was not fairly represented by the Union and provides a basis in this case for the conclusion that the arbitration proceeding met the test of essential fairness required by the Board for deferral to the arbitral award. D Conclusion Accordingly, I find that the Board should defer to the decision of the arbitrator. It is thus unnecessary to decide the substantive merits of the complaint" CONCLUSIONS OF LAW 1. W. R. Grace & Co., Southbridge Plastics Division, is an employer engaged in commerce within the meaning of Section 2( 6) and (7) of the Act. 2 Local Union No. 759 and the International Union of United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, are now , and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. 3 The arbitration award upholding the discharge of Loyd Whirley by the Respondent is entitled to deference RECOMMENDED ORDER It is hereby recommended that the complaint be dismissed in its entirety. "See Eazor Express. Inc, 172 NLRB No 201