National Radio Co., Inc.

NATIONAL RADIO COMPANY, INC. 527 National Radio Company, Inc. and Local No. 231, International Union of Electrical, Radio & Machine Workers, AFL-CIO. Case 1-CA-6991 July 31, 1972 DECISION AND ORDER On July 13, 1970, Trial Examiner Lloyd Buchanan issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner 's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that these allegations be dismissed . Thereafter, Respon- dent and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. The Union filed a brief in answer to Respondent's exceptions. The National Labor Relations Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that, except for the Trial Examiner's denial of Respondent's motion to defer to arbitration, no prejudicial error was committed . The rulings, with this exception, are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions , the briefs, and the entire record in this case, and finds merit in certain of Respondent's exceptions . Accordingly, the Board adopts the findings , conclusions, and recommenda- tions of the Trial Examiner only to the extent consistent herewith. The complaint alleged and the General Counsel contends that Respondent refused to bargain in good faith, in violation of Section 8(a)(5) of the Act: (1) by unilaterally imposing a condition that union repre- sentatives record and report their movements in the plant while processing grievances on compensated time ; (2) by failing to comply with a contractual commitment to reinstate a service awards program for employees with 25 years' employment; (3) by failing to print and distribute to all employees copies of the current collective-bargaining agreement; and (4) by failing to implement an agreed upon system of warning rules with respect to employee discipline. It is also alleged and contended that Respondent violated Section 8(a)(3) by its disciplinary suspen- sion, and then discharge, of an employee and union representative . The employee was discharged for his admitted refusal to comply with the reporting requirements established by Respondent. With a single exception, the Trial Examiner found the 198 NLRB No. 1 violations stated above: he found no violation arising from the fact that the disciplinary warning system had not been implemented at the time of hearing. Respondent excepts to these findings principally on the grounds that the alleged violations involve disputes arising under the collective-bargaining contract between the parties, that those disputes were subject to grievance and arbitration proceedings under the contract, and that the principal dispute has been submitted to an arbitrator for final decision. For that reason, Respondent asserts the Board should withhold exercise of its remedial authority in deference to the dispute settlement mechanism agreed upon between the parties. We find merit in that exception. 1. The Union has represented the production and maintenance employees at Respondent's radio man- ufacturing plant for 18 years. The relationship between the parties has been harmonious and productive but was marred by an economic strike, the Union's first, in August 1969. The current collective-bargaining agreement between the parties provides, inter alia, that Respondent shall pay union representatives for time lost in settling grievances and that the representatives "shall be permitted free movement within the plant area for which they are responsible" in handling grievances. The contract also contains a management rights clause which provides, in relevant part, that "the management of the plant and the direction of the working forces, including the right to . . . establish rules pertaimng to the operation of the plant, is vested in the Company . . . . Complaints that the Company has violated the terms of this paragraph may be subject to the grievance procedure." Finally, the contract provides a four-step grievance procedure culminating in mandatory arbitration of "any differences or disputes between the parties as to the interpretation of the terms of the contract which cannot be adjusted through the grievance procedure." The central issue here, the propriety of Respondent's imposition of a reporting requirement and subsequent efforts to enforce it, turns upon the meaning and application of these contract clauses, and the parties' experience in applying them. The Trial Examiner found that Respondent violat- ed Section 8(a)(5) of the Act by unilaterally institut- ing a plant rule requiring union representatives to report to their supervisors upon leaving their work areas to conduct grievance business for the Union. The Trial Examiner also found that the discipline and discharge of employee William O'Connell for refusal to comply with the reporting rule violated Section 8(a)(3) of the Act. We find merit in Respondent's exception to the Trial Examiner's failure to stay this proceeding pending outcome of 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the parties' contractual grievance-arbitration proce- dure. O'Connell, an electronic technician, had been employed by Respondent since 1952. During all that time he had been an active union adherent, had participated in grievance handling, and had, for the Union, negotiated all but two of the contracts between the parties. He had been president of the Union for 5 years prior to his discharge, and during that time he personally had performed virtually all of the Union's grievance handling duties. The contract provided for compensation for union officials for time spent on grievance duties, subject to certain limitations: Section 2. Required time lost by the Union Stewards or other representatives in settling grievances shall be paid for by the Company except that no such grievance time will be paid in excess of two (2) hours per week for Stewards and members of the Grievance Committee and four (4) hours per week for the President, Vice- President and Chief Stewards. If in any week the stewards do not use the two hours above provided, the above maximum time allowed for the President, Vice-President and Chief Stewards shall be increased for that week by the amount of time not used by the Stewards that week. The Company shall supply the Union with all neces- sary information in connection with grievances. Section 3. Stewards and Local Union officials and two (2) members of the Grievance Committee shall be permitted free movement within the plant area for which they are responsible. Section 4. No Union business other than grievances shall be conducted on the Company's time. It appears that O'Connell's representative duties involved not merely step 4 grievances, as provided by the contract, but also grievances at steps 1, 2, and 3 which, under the contract, are to be handled by stewards and grievance committee men.' Indeed, O'Connell testified that much of the compensated time he spent on union business was related to the "prevention" of grievances, rather than to the filing or processing of grievances. O'Connell spent 1,195 compensated hours on such duties in 1969, and 1,520 such hours in 1968. Prior to the events herein Respondent made no objection to the scope of O'Connell's activities, or to the amount of time they consumed. So far as the record shows, the only previous discussion of O'Connell's activities occurred in September 1969 when O'Connell was asked by Miller, then O'Connell's supervisor, to keep a record of the times when O'Connell was away from work on grievance business. O'Connell failed to keep the requested record, but was not disciplined for such failure. Thereafter, on December 10, 1969, Miller instruct- ed O'Connell that upon leaving his work area to handle grievances he was to tell Miller where he was going and approximately how long he would be, and to notify Miller upon his return to the department. Later that same day O'Connell received a written warning for failing to notify Miller when he went to another plant on the premises on a grievance matter.2 O'Connell filed a grievance the same day, 1 The full text of the Grievances Article is as follows Article XIV--Gnevances Section 1 . Any dispute or grievance that may anse between the Union and the Company shall be taken up as promptly as possible as follows Step I . Between the aggrieved employee and the department foreman . The aggrieved employee may be accompanied by the department steward if he desires. If no satisfactory settlement is reached between them in twenty-four (24) hours then Step 2 Between the Chief Steward and Department Steward and the Plant Superintendent and Department Foreman Following Step 2 in the above procedure grievances and answers thereto within the time limits specified will be in writing and signed by proper officials. If no satisfactory settlement is reached between them in twenty-four (24) hours following Step 2, then Step 3. The Grievance Committee (consisting of the Chief Steward of the plant involved and one ( 1) committeeman from each plant) shall meet with the Plant Superintendent involved, a representative of the Industrial , Relations Department and one ( 1) other person designated by the Management, to attempt to resolve all grievances not settled by Step 2. The meetings shall be scheduled for Thursday at 2.00 p.m. if such grievances apse If no satisfactory settlement is reached, then Step 4 The Union President , Vice-President, Chief Steward involved and Department Steward involved shall meet with the Plant Superintendent involved, a representative of the Industrial Relations Department, and two (2) other Management designees and attempt to resolve all grievances not settled by Step 3 Such meetings shall be scheduled not later than one (1) week after failure to reach agreement in Step 3 Meeting days may be changed by mutual agreement, and a representative of the International Union may be called in to take part in the grievance procedure under Step 4. If no satisfactory settlement is arrived at, either party may submit the matter to arbitration as hereinafter provided In the event that any of the individuals designated in Steps 3 and 4 above are unable to serve, a substitute may be named. Section 2 Required time lost by the Union Stewards or other representatives in settling grievances shall be paid for by the Company except that no such grievance time will be paid in excess of two (2) hours per week for Stewards and members of the Grievance Committee and four (4) hours per week for the President , Vice-President and Chief Stewards If in any week the stewards do not use the two hours above provided, the above maximum time allowed for the President, Vice- President and Chief Stewards shall be increased for that week by the amount of time not used by the Stewards that week The Company shall supply the Union with all necessary information in connection with grievances. Section 3. Stewards and Local Union officials and two (2) members of the Grievance Committee shall be permitted free movement within the plant area for which they are responsible Section 4 No Union business other than grievances shall be conducted on the Company's time 2 Respondent has not contended herein that O'Connell was engaged in any activity other than grievance handling on behalf of the Union when he left his department without notifying supervision and was variously disciplined therefor. The issue of O'Connell's activities is raised only by the General Counsel who asserts, in effect , that by mutual consent O'Connell NATIONAL RADIO COMPANY, INC. contending that the "free movement" clause of the grievance article meant that he did not have to report in and out of his work area as required by Miller. On December 30, 1969, O'Connell left his depart- ment and again omitted to tell Miller where he was going and for what purpose, and Miller issued another formal written warning to him. On January 8, 1970, Miller issued still another warning because O'Connell refused to report back to his department, as directed, from the finance department where he had gone without prior disclosure to Miller. On January 28, the Union filed a demand for arbitration of the grievances arising out of the December 10, 1969, warning to O'Connell.3 The Union contended that the discipline imposed on O'Connell for not reporting to his supervisor was in direct conflict with the "free movement" clause of the contract. That same day, the Union filed unfair labor practice charges alleging violations of Section 8(a)(3) and (5) of the Act. After being transferred to another department on February 26, 1970, O'Connell was again told that he would have to comply with the reporting procedures before leaving his department on grievance business. Notwithstanding this notification, O'Connell on the same day twice failed to comply with these reporting requirements and was given two written warnings. O'Connell filed grievances as to both warnings that day. On March 4, 1970, O'Connell left his department early in the day on grievance business and informed his supervisor that he would be gone about 2 hours and would return no later than lunchtime. O'Connell did not return to his department at all that workday, and his supervisor's efforts to locate him during the afternoon, including paging him on the plant public address system, were unavailing. This incident caused Respondent to suspend O'Connell on March 6 for 10 days for failing to return to his department after completing grievance business. O'Connell returned to work on March 16 and on March 17 he was given another warning for failing to report back to his department after completing grievance work in the personnel department. After this warning, O'Connell met with Respondent's director of industrial relations, William Kajos, who reviewed O'Connell's entire record and then dis- charged him for "acts of insubordination, after numerous verbal warnings, written warnings, and a suspension." The Union filed a grievance based on O'Connell's discharge and, on April 6, 1970, amended the unfair had been permitted to become a full-time union representative with no production duties. But whether that is true and whether the parties intended, if so, to modify the written contract are, in the first instance, issues for a contract arbitrator. 529 labor practice charges herein to include the suspen- sion and subsequent discharge of O'Connell. The complaint herein issued on April 9, and, on April 10, the Union requested Arbitrator Archibald Cox to adjourn the arbitration proceeding scheduled for April 27. The request was denied and the hearing occurred as scheduled. The issues which the parties stipulated to the arbitrator were: 1. Did the Company violate Article XIII of its collective-bargaining contract with the Union by: a) the warning notices to William O'Connell dated December 10, 1969, December 30, 1969, January 8, 1970 and February 26, 1970, and b) the suspension of William O'Connell on December 10, 1969, and c) the suspension of William O'Connell on March 6, 1970, and d) the discharge of William O'Connell on March 17, 1970? 2. To what remedy, if any, is William O'Con- nell entitled? Professor Cox held an arbitration hearing on April 27, 1970. Respondent, on May 5, asked the Regional Director for Region 1 to stay this unfair labor practice proceeding pending arbitration; the Union opposed the motion. Thereafter, the Regional Direc- tor denied the motion and the General Counsel, by telegraphic order, affirmed the Regional Director's decision. Respondent renewed its motion at the outset of the hearing herein, but the Trial Examiner denied the motion and conducted the hearing on May 25 through 27. He issued his decision on July 13. On July 27, Professor Cox granted the Union's request for a continuance of the arbitration proceed- ing and informed the parties in a memorandum that he would not issue his decision until after the Board has acted in the instant proceeding. The issue raised is, in several respects, identical to that of Collyer Insulated Wire, 192 NLRB No. 150. In this case, as in Collyer, the controversy is, at bottom, a substantial dispute over the meaning of contract provisions. In this respect we disagree with the Trial Examiner's conclusion that "the relevant contract terms here are not in dispute" and his consequent assumption that Respondent's adoption of the reporting requirement was unilateral action. In our view the contract provisions and the parties' dealings under the contract raise these substantial issues, among others: (1) whether Respondent's actions fell within its contractually secured "right to establish rules pertaining to the operation of the plant," (art. 3 Arbitration was also demanded of a disciplinary suspension O'Connell had incurred in a matter not related to the reporting requirement. See part 2, infra 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V, sec. 2); (2) whether the application of such a rule to O'Connell infringed the contractual guarantee to the Union that its agents would be "permitted free movement within the plant area for which they are responsible" (art. XIV, sec. 3); (3) whether Respon- dent's decision to discipline and discharge O'Connell for refusing to follow the reporting procedure pending disposition of his grievance was for just cause within the meaning of article XIII; and (4) the extent, if any, to which these contractual provisions might have been affected by the parties' course of dealing under the contract. Thus, the considerations which impelled us to withhold our processes in Collyer are likewise operative here. In one respect, however, the cases are to be distinguished. Here we are presented with the claim that Respondent has not only violated Section 8(a)(5) by its assertedly unilateral action, but also Section 8(a)(3) by its discipline of O'Connell. The General Counsel contends that, in effecting that discipline, Respondent was motivated by union animus. That allegation and contention add a dimension to this case which was not present in Collyer, where no claim was made that respondent acted from a desire or with an intent either to abridge Section 7 rights, or to penalize employees for their exercise of those rights, In Collyer it was literally true that decision of the contract dispute would supply the decision of the unfair labor practice controversy: The contract there either did or did not authorize the changes in working conditions and wages which were assertedly violative of Section 8(a)(5). Here, by contrast, there exists a narrow penumbra of the dispute wherein it is possible that adoption of the reporting procedure was within Respondent's contractually sanctioned domain and, so, no breach of agreement, but nevertheless prohibited by the Act because under- taken for discriminatory motive. This narrow possi- bility requires that we be especially cautious in declining to assert the exclusive jurisdiction granted to us by Congress to prevent and remedy violations of Section 8 of the Act, for there does exist that possibility that a contractually sound and entirely proper arbitrator's award might fail to dispose of all issues arising under the Act. With these grave concerns fully in mind, we nevertheless conclude that our jurisdiction of the controversy was improvidently asserted prior to the issuance of the arbitrator's award. In our view the issues presented to us should not be decided in advance of an authoritative declaration by the arbitrator whether Respondent's promulgation of the reporting procedure was within its contractually 4 In light of our disposition of this issue, we neither reach nor decide the question whether the Trial Examiner was in error in his holding that no established prerogative. We are led to this conclusion by practical as well as by statutory considerations. 2. The complaint alleges, further, that Respon- dent violated Section 8(a)(3) of the Act by suspend- ing O'Connell on December 10, 1969, for 3 days because he destroyed information assertedly required by Respondent in the course of its business. As more fully described in the attached Trial Examiner's Decision, the list kept by employee Alice Wise, an inspector, contained the names of employees who had manufactured defective parts. Wise apparently became concerned that she, a union member, was keeping such a list of fellow members' names and expressed this concern to O'Connell. O'Connell spoke to Wise's supervisor and learned that Wise had been asked by her supervisor to keep the list. O'Connell inquired why the list was requested and was told by the supervisor that he wanted the list for "personal" reasons. O'Connell thereupon destroyed the list in the supervisor's presence. He was promptly thereafter suspended. O'Connell's suspension for destroying the list was the subject of an immediately filed grievance. As already noted the grievance was denied at successive stages of the agreed-upon procedure and was submitted to Professor Cox for final resolution on April 27. The Charging Party and the General Counsel contend in this proceeding that the suspension of O'Connell was motivated by the Employer's union animus and was, therefore, effected in violation of Section 8(a)(3) of the Act. The Trial Examiner found the alleged violation.4 Respondent contends that because the propriety of O'Connell's suspension was submitted to the arbitrator, the Board should abstain from exercising jurisdiction pending an arbitral resolution. That contention squarely poses issues of primary importance: Whether the Board is empow- ered to abstain pending outcome of the arbitration proceeding, and whether, if so, it will effectuate the purposes of the Act to do so? We answer both questions affirmatively. In the Collyer decision we recently examined the legal predicate upon which the Board might, and in that case did, decline to intervene in a dispute over contract terms which was also, arguably, a refusal by the Employer to bargain in good faith as required by Section 8(a)(5). We noted, in particular, that the courts have upheld the Board's authority to do so in a proper case. We also reviewed the developments in our economy as well as the legislative and judicial responses to those developments, which warranted our abstention in that case and similar cases. Much of what was said in Collyer is equally showing of animus was necessary to his finding of violation NATIONAL RADIO COMPANY, INC. 531 applicable here, although the issues presented are concededly different. Collyer was, at bottom, a dispute over the meaning of contractual terms and we placed great reliance upon the fact that the alleged statutory violation and the alleged contractu- al violation so coalesced that resolution of either dispute in an appropriate forum would, perforce, supply the resolution of the other dispute.5 In this case, however, Respondent's contention that our authority is improvidently invoked does not rest on any presumed primacy- of an arbitrator to interpret an ambiguous or contested contract provision. Abstention is urged on the straightforward basis that the contract prohibits discipline for other than "just cause" and provides a mechanism for the quick and fair vindication of employee rights when that clause is violated. Implicit in Respondent's argument, as we appre- hend it, is the assumption that the arbitration proceeding will lead to a resolution of the dispute which will not be "repugnant to purposes and policies of the Act."6 If, as we believe, that is a tenable assumption, the fundamental considerations are the same here as in Collyer. Here, as there, an asserted wrong is remedia- ble in both a statutory and a contractual forum. Both jurisdictions exist by virtue of congressional actionj and our duty to serve the objectives of Congress requires that we seek a rational accommodation within that duality. We may not abdicate our statutory duty to prevent and remedy unfair labor practices. Yet, once an exclusive agent has been chosen by employees to represent them, we are charged with a duty fully to protect the structure of collective representation and the freedom of the parties to establish and maintain an effective and productive relationship. In this context, abstention simply cannot be equated with abdication. We are, instead, adjuring the parties to seek resolution of their dispute under the provisions of their own contract and thus fostering both the collective relationship and the 5 Coppus Engineering Corporation, 195 NLRB No. 113 8 Cf Spielberg Mfg Co, 112 NLRB 1080 ' Textile Workers Union of America v Lincoln Mills of Alabama, 353 U S. 448. B The procedure of abstaining from action, while retaining jurisdiction to act if necessary to ensure protection of Federal interests, is an established and respected one. Railroad Commission of Texas v. Pullman Co, 312 U.S 496, Fornais v. Ridge Tool Co, 400 U.S. 41 The doctrine of abstention has been invoked to avoid conflicts between forums with concurrent jurisdiction over disputes ansing under (a) Federal regulatory programs, Leiter Minerals Inc. v United States, 352 U S 220, (b) the Federal Bankruptcy Act, Thompson v Magnolia Petroleum Co, 309 U S 478, and (c) the Federal labor relations laws, America Federation of Labor v Watson, 327 U S 582 That procedure seems eminently as well suited to the accommodation of conflicting statutory aims as to the accommodation of conflicts inhering in constitutional federalism. 9 The Federal Mediation and Concilation Service, one of the agencies through which contracting parties can obtain the services of a skilled Federal policy favoring voluntary arbitration and dispute settlement. And by reserving jurisdiction we preserve the right of the Charging Party to seek from us vindication of statutory rights should the arbitra- tion reach a result not tolerable under the statute. As the Supreme Court observed in Carey v. Westing- house Electric Corp., 375 U.S. 261, 272: By allowing the dispute to go to arbitration its fragmentation is avoided to a substantial extent; and those conciliatory measures which Congress deemed vital to. "industrial peace" ... and which may be dispositive of the entire dispute, are encouraged. The superior authority of the Board may be invoked at any time. Meanwhile the therapy of arbitration is brought to bear in a complicated and troubled area. In sum, we conclude that the Board is empowered under the statute to defer action on a complained of violation of Section 8(a)(1) and (3), pending arbitra- tion, if, on balance, to do so will advance the policies and purposes of the Act.8 The question whether, in fact, the policies and purposes of the Act will be furthered by abstention here and in similar cases is more complex. The crucial determinant is, we believe, the reasonableness of the assumption that the arbitration procedure will resolve this dispute in a manner consistent with the standards of Spielberg. As we noted in Collyer, contract grievance and arbitration procedures have become an integral part of virtually all collective- bargaining contracts in this country. Though arbitra- tion like all systems for the resolution of disputes has its imperfections, the demand for and resort to services of skilled arbitrators has increased at a steady and heartening rate.9 The issue most often resolved by arbitrators is that of just cause for the imposition of discipline.10 Indeed, it is largely the insistence of unions upon procedures to protect employees against arbitrary treatment that has led to the modern ubiquity of contractual grievance and arbitration procedures.ii Wholly aside from consid- arbitrator, reports that annual requests for panels or direct appointments of arbitrators quadrupled between 1961 and 1971, the figures being respective- ly, 3,174 and 12,327 During the same period the number of arbitrators' awards issued annually under FMCS aegis have nearly doubled, from 1,553 to 2,840 Federal Mediation and Conciliation Service, 24th Annual Report, Fiscal Year 1971, p. 54-55. The disparity in those figures suggests that, with arbitration as with the Board , a substantial majority of potential disputes are settled between the parties without resort to third party compulsion. A respected authority in the field of labor arbitration has estimated that the practicing arbitrators in the country issued approximately 10,000 awards during a recent year. E Jones, Arbitration and the Public Interest, Proc , 20th Annual Meeting, National Academy of Arbitrators 45 (1971). io In fiscal 1971 almost half of all arbitration awards issued under FMCS auspices involved discharge and disciplinary action . FMCS, 24th Annual Report 55 11 "Even where there was littie evidence of irresponsible behavior on the part of management, the union seeking to organize employees the protection offered by collective bargaining against unfair disciplinary (Continued) 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD erations arising from the increasing caseload before this five-man Board,12 we believe the purposes of the Act are well served by encouraging the parties to those contracts to resolve their disputes without government intervention. The reference in Carey to the "therapy of arbitration" is not simply rhetorical. The relationship of contracting parties is strength- ened by the experience of mutual reliance on contract procedures. The intervention of this Board, by contrast, can sometimes be an unsettling force.13 There are also more specific reasons why the contractual procedures may be assumed to operate in such fashion as to resolve the underlying dispute in full and thus obviate the need for further action by the Board. It bears repeating that this case is cognizable by the Board at all only because the discipline here was imposed upon one who had distinguished himself as a union adherent. That is, but for the fact that O'Connell acted in behalf of the Union, his 3-day suspension would have presented only contractual issues and Section 8(a)(3) of the statute could not have come into play. We may assume that the Union will be aware of its institu- tional interests in protecting its officer and leading proponent against discipline which is thought to restrict his activities on the Union's behalf. In that respect, especially, it must be noted that the interests of the employee and his representative are in substantial harmony in this case and are likely to be so in every such case.14 It is sufficient to note here that in protecting O'Connell the Union protects itself as well and, for that reason, we see no ground to assume that O'Connell's interests will be inadequate- ly represented under the contractual procedures. Two final similarities between this case and Collyer reenforce our belief that abstention is appropriate. Here, as in Collyer and in Jos. Schlitz Brewing Company, 175 NLRB 141, the parties have had long established a stable and productive bargaining relationship.15 Second, although the alleged violation of Section 8(a)(3) subsumes a charge of union animus by treatment It is a mistake to feel that a union 's contribution is limited to periodic contract improvements , it has a great influence on disciplinary policies and actions This is felt on almost a daily basis during the life of an agreement, either because of the silent presence of the union or because the union has been quick to prosecute grievances relating to allegedly unfair discipline," S Shchter, J Healy and E Livernash, The Impact of Collective Bargaining on Management, 624 (1960) 12 This consideration should not be gainsaid , however In fiscal year 1971, the Board decided 836 contested unfair labor practice cases, an increase of more than 500 percent since 1957 13 "But if the Union may . call upon an outside agency the whole proceeding is necessarily disrupted The arbiters cannot continue. The whole controversy then shifts from the plant to the nearest Board hearing room, and thereafter to the nation's capital, and then on to the seat of any one of the eleven Courts of Appeals having geographical jurisdiction over the employer Whatever else that is, it is not giving full play to the means established by the parties . More than lost time, it introduces or magnifies advocative hostility For now a new adversary has entered the lists-the Respondent, we believe this case must be distin- guished from those in which a history of such animus or pattern of action subversive of Section 7 rights has been alleged.16 For these reasons we decline at this time to exercise our remedial powers in this case and so decline as well to render any decision now upon the merits. 3. Finally, Respondent is charged with violating Section 8(a)(5) by failing to comply with contractual obligations to resume an awards program for long service employees, to print and distribute copies of the current contract, and to establish a system of warning notices in connection with employee disci- pline. These allegations clearly raise simple contract disputes resolvable under the settlement procedures provided in the contract. These allegations of the complaint shall be dismissed in accordance with our decision in Collyer, supra. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed; provided, however that: The Board shall retain jurisdiction of this proceed- ing for the purpose of entertaining an appropriate and timely motion for further consideration upon a proper showing that either (a) the dispute has not, with reasonable promptness after the issuance of this decision, either been resolved by amicable settlement in the grievance procedure or submitted promptly to arbitration, or (b) the grievance or arbitration procedures have not been fair and regular or have reached a result which is repugnant to the Act. MEMBERS FANNING AND JENKINS, dissenting: The majority here extends its Collyer policy, of forcing the union and employer out of the Board's processes and into arbitration, to a case in which no question of contract interpretation is involved and in which the only issue is whether an employee was fired for union activity in violation of Section 8(a)(3). General Counsel who, from the nature of the complaint, aligns himself with one of the adversaries-the Union-but who as a sort of protector of the general public interest must advance his advocacy, pro and con, not in the manner best calculated to bung an end to the dispute, but in a manner thought, from that lofty vantage, to be best for the general good Even worse, that diversion ends in a decision which , if it determines the substantive issue adversely to the Employer as does this one leaves the Employer facing an additional adversary-the Board. This makes it necessary for the Employer to resist that determination in order to get the matter back where it started-in the laps of the arbitrators . To do that the Employer must come to court But the courthouse, says the Supreme Court, is not the place to work out industrial disputes when arbitration has been prescribed and is available " Sinclair Refining Company v N L R B, 306 F 2d 569, 579 (C.A. 5) 14 Cf Kansas Meat Packers, a Division of Aristo Foods, inc, 198 NLRB No. 2, issued this day. 15 Compare Curtis Manufacturing Co, Inc, 189 NLRB No. 38 16 Compare United Aircraft Corporation, 188 NLRB No. 96 NATIONAL RADIO COMPANY, INC. 533 There is therefore no contractual dispute which is, susceptible to arbitration. To compel the victim of this alleged discrimination to resort to arbitration is not "deferral," but a subcontracting to a private tribunal of the determination of rights conferred and guaranteed solely by the statute. Such action mocks the statute and the reason for this Board's existence. In the series of recent cases in which the majority has deferred to arbitration alleged violations involv- ing unilateral changes in collective-bargaining agree- ments, we have previously expressed our reasons why the Board lacks the power to refuse to decide such cases when they are brought to it, and why it is ill advised to refuse even if the Board had the power. Collyer Insulated Wire, 192 NLRB No. 150; Peerless Pressed Metal Corp., 198 NLRB No. 5; Appalachian Power Co., 198 NLRB No. 7; National Biscuit Co., 198 NLRB No. 4; Malrite of Wisconsin, Inc., 198 NLRB No. 3; among others. Those reasons are equally applicable here, and need not be repeated. But in discriminatory discharge cases, there are additional and cogent reasons for the Board to decide the merits of the case forthwith rather than subcontract the decision to private hands Statutory protection against discrimination on the job because of engaging in, or refraining from, union activity is an individual right, unlike the union or group right to be protected from unilateral changes in the collective-bargaining agreement. Because it is granted by the statute to individuals, it cannot be reduced, altered, or displaced by any agreement between the employer and the union. N.L.R.B. v. Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO and its Local 22, 391 U.S. 418; Lodge 743, 1AM v. United Aircraft Corp., 337 F.2d 5 (C.A. 2). A union and employer may lawfully agree to arbitrate any differences they have over provisions in their agreement. But they cannot lawfully agree that they will arbitrate between themselves discrimi- nation by one of them against an employee, unless that employee joins in or plainly acquiesces in and adopts that method of determining his rights, because Section 9(a) gives him the right to present his grievances outside the channels agreed upon by the employer and union. The contrary conclusion, adopted by the majority, subjects the individual rights of the employee to a tribunal he has never agreed to, has rejected by asking this Board to decide his case, and cannot on his own individual initiative invoke. Because only the union or employer can invoke the arbitration process, that process therefore may well leave him stranded even if he desired to submit to arbitration. Since the party who is complaining of the unlawful conduct against him has brought his case to the Board instead of pursuing arbitration, there is nothing voluntary about the arbitration which the Board is forcing upon him. Thus, the voluntary character of arbitration, which the majority extols as the main reason for compelling its use, is completely absent in the case of the individual discriminatee. His plight is reminiscent of the army private to whom the sergeant pointed and said, "I need one volunteer-you." The special competence of arbitrators in contract disputes, which is the only substantive justification the Supreme Court has found for ordering the contracting parties to arbitrate rather than litigate, does not exist in the field of statutory rights. The arbitration process cannot use the Board's investiga- tive or legal resources and capabilities, and arbitra- tors do not have the expertise in statutory issues which the Board has necessarily acquired through long, intimate, and specialized experience. Indeed, the majority concedes that its deferral to arbitration in this case "does not rest on any presumed primacy of an arbitrator to interpret an ambiguous or contested contract provision." Therefore the only reason the Supreme Court regarded as justifying arbitration is absent here. And more important, it is the Board and not arbitrators whom Congress has made responsible for determining violations of the statute. There is a public right and interest in preventing and remedying violations of the Act, which is perhaps even para- mount to the individual rights of which we have spoken above. We have pointed out in Collyer and in other cases since then that the Board is not empowered to delegate this responsibility to private tribunals, and that our colleagues' reliance on the Steelworkers' trilogy, Carey, Boys Markets, and other such cases was entirely misplaced because those cases involved no violations of the Act, but only disputes over the meaning of the contract. The inapplicability of these cases involving suits to compel arbitration has just been pointed out again by the Supreme Court in holding that "a § 301 suit to compel arbitration" is not pertinent to "an unfair labor practice proceeding where the Board is expressly limited by the provisions of § 8(d)." N. L. R. B. v. Burns International Security Services, Inc., 92 S.Ct. 1572(1972). Where no contract dispute exists, as here, there is nothing to arbitrate. Thus the majority is not deferring to arbitration, but subcon- tracting to a private tribunal the determination whether the statute was violated. Uniformity disap- pears, the preemption doctrine is frustrated, private tribunals proliferate with no real prospect of review of their actions, and anarchy begins to intrude. The majority asserts, in support of its result, that "[b]oth jurisdictions [this Board and arbitration] exist by virtue of congressional action," relying on Textile Workers Union of America, AFL-CIO v. 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lincoln Mills of Alabama, 353 U.S. 448. But the congressional action considered in Lincoln Mills extended only to suits under Section 301 to enforce contract provisions. Nothing in Lincoln Mills indi- cates that other than contract rights were amenable to arbitration. Other tribunals, e.g., the Court of Military Justice, also "exist by virtue of congression- al action," but this does not allow the Board to send its cases there. This rush to subcontract to private hands the determination of public and individual rights will eliminate those rights, sooner rather than later. The only way an 8(a)(3) discrimination case can be squeezed into the arbitration mold is by interpreting some contract clause such as one forbidding dis- charge without "good cause" as providing the same protection the statute provides against discrimina- tion. (Why would not the majority first ask an arbitrator to determine whether the clause should be so read?) The majority will then presume that the issue of discharge for union activity (or for refraining from such activity) was decided by the arbitrator even though the award does not mention it and decides only whether "good cause" existed. Terminal Transport Company, Inc., 185 NLRB No. 96. But as the majority concedes, arbitrators are concerned with "just cause for the imposition of discipline," and will dispose of this case on that ground in the arbitration proceeding. Thus, the majority engages in what they regard as a "tenable assumption" that the arbitration result "will not be `repugnant to purposes and policies of the Act.' " This assumption is not only not tenable, it is not possible. For it makes the existence of "good cause" a complete defense in a case where the reason for discharge is union support (or non-support). In many, and perhaps most, discharge cases, a good reason may exist for firing the employee; if so, the arbitration inquiry ends there, and the employee is out of a job. The Act, however, requires that the employee be protected against discharge for union reasons, even though there may be a different and good reason for his discharge. Consequently, the Board in nearly every discriminatory discharge case examines the evidence and the circumstances, in order to determine whether the "good" reason was the real reason or a pretext for firing the employee. Frequently the "good" cause is found to be a pretext. This protection of the Act is eliminated by the majority's subcontracting of such cases to arbitra- tion, which will go against the employee if the employer can unearth, even in hindsight, a "good cause" for firing the employee. That the union apparently has no interests adverse to the employee and does have an interest adverse to the employer cannot, contrary to the majority, provide any assurance that the arbitrator will determine whether the "good cause" was a pretext, since his sole authority and function is to interpret the "good cause" provision. Indeed, the arbitrator himself (Professor Archibald Cox) in this case has, by withholding his decision until the Board has decided the statutory issue, concluded that he cannot or should not determine that question. The "therapy of arbitration" which the majority illogically imports into this case 17 leaves the patient to die without benefit of the protection Congress intended him to have. Thus the majority's assertion that their forcing the alleged victim into arbitration "simply cannot be equated with abdication" is perhaps provoked by the unavoidable realization that they are abdicating. The result of these mistaken assumptions is to reduce the statutory protection against discrimina- tion to a permission to fire the employee if "good cause" or "just cause" exists for doing so, even though the true reason for firing him is not this but rather his engaging (or refusing to engage) in union activity- A further and necessary result is that if the parties desire, they may contract themselves out of the Act to any extent they choose by listing in the contract the provisions of the Act they agree not to violate, and appending an arbitration clause to such listing. For example, the employer and union may agree that union members will not engage in concerted activity on company time or property, or that the employer will not interfere with, coerce, or discriminate against employees because of union activity-a substantial part of the activity protected by Section 8(a)(1) and (3). By appending an arbitration clause,the parties can remove these activities from the statutory protection, and limit the employees' protection to that afforded by arbitration. For the majority will then refuse to decide, subcontract the case to whatever tribunal the parties may have designated, and the Board can devote most of its time to election cases. The majority will then have sidestepped much of the Board's unfair labor practice work, by assigning it to private tribunals, rather than to the Federal courts as has often been proposed but never accepted by Congress. Besides the foregoing drastic curtailment of statu- 17 The "therapy" concept was expressed in Carey, Pres. of International to this dispute, the fired employee, is not a party to the arbitration Electrical Workers v. Westinghouse Electric Corporation, 375 U.S. 261, 273, a agreement and not bound by it, we have explained in more detail in our case in which the Court enforced an agreement to arbitrate a contractual dissents in Collyer why Carey and the similar cases the majority cites are not dispute. Apart from the facts that (1) no contractual dispute is involved appropriate. here, (2) no statutory right was involved in Carey, and (3) one of the parties NATIONAL RADIO COMPANY, INC. 535 tory rights inherent in the majority's subcontracting of discrimination cases, the cost of arbitration will severely limit the protection of the discriminatees. Each arbitration, as we have pointed out elsewhere, will cost well over $500 per side, with the likelihood that the figure will exceed $1,000. Since arbitration settles only the particular case arbitrated, and provides no remedy against future violations, a determined opponent of employee rights can repeat the unlawful conduct and make it almost impossible for even a strong union to continue the arbitration course. The vicitim, of course, out of work and out of money, has no chance through his own efforts of obtaining his rights by an expensive arbitration. And the victim is, by this subcontracting and refusal of the Board to exercise its responsibilities, deprived of the assistance of the Government, of its resources, its powers, and its expertise, in establishing his rights. That those rights also have a public character and interest emphasizes the derogation of the statute and public policy inherent in the majority's action. Since the original enactment of this statute in 1935, it has been contemplated that the Government, with its resources, facilities, and power, shall vindicate the rights protected by the Act. "No private right of action is contemplated. Essentially the unfair labor practices listed are matters of public concern, by their nature and consequence, present and potential . . ." See II Leg. Hist. 2931, 2978, 3074 (1935). The original Section 10(b) proposed by Senator Wagner, "father" of the statute, contained a clause providing that the "Board may, in its discretion, defer its exercise of jurisdiction over any such unfair labor practice in any case where there is another means of prevention provided for by agreement . . . ." See I Leg. Hist. 1301 (1935); II Leg. Hist. 2430 (1935). This is exactly what the majority does in this case. Yet this provision was struck from the bill, II Leg. Hist. 2351 (1935), a clear rejection of the "policy" which the majority here and in Collyer have created. Forcing the discriminatorily discharged employee to resort to arbitration can no more be justified than allowing a different private tribunal, created by a union, to impede his access to the Board by an adjudication imposing a fine because he resorted to the Board. In such case, as the Supreme Court held, "[i]f the [employee] becomes exhausted, instead of the reme- dies, the issues of public policy are never reached and an airing of the grievance never had," and thus "overriding public interest makes unimpeded access to the Board the only healthy alternative ...." N. L. R. B. v. Marine and Shipbuilding Workers, 391 U.S. 418, 425, 424. Precisely the same is true here, and there is no more reason to permit a private arbitration tribunal to impede access to the Board than to allow the private union tribunal to impede it in Marine Workers. The majority asserts that arbitration of discrimina- torily discharged employees is preferable to decision by the Board because "intervention of this Board ... can sometimes be an unsettling force," and arbitration is "best calculated to bring an end to the dispute." 18 But if the statutory protection is to be meaningful, of course Board decisions finding unlawful conduct may be "unsettling" to the parties who have agreed to an arbitration provision. The employee who is allegedly victimized is, contrary to the majority, not a party to the arbitration agree- ment ; the protection of his statutory rights does not contemplate nor turn upon ending the dispute on terms acceptable to the union and employer. The significance of the "unsettling effect " of a Board decision is simply that the protection of statutory rights often requires more than an arbitrator is empowered to decide, or will award. Thus the "unsettlement" will vary directly with the extent to which arbitration will or may fall short of what the statute commands. While the majority deplores this and is willing to emasculate the Act to avoid it. we regard it as a necessary and valid symptom of the effectiveness of the statute. Indeed, because an arbitration award disposes of only the individual case, lacks precedential value , and cannot prevent recurrence of future misconduct of the same sort, any "unsettlement" would seem to be far greater under the arbitration compelled by the majority than under a dispositive Board decision which would establish the proper principle and eliminate further misconduct. Finally, the majority justifies its subcontracting cases to arbitrators on the ground of curtailing "the increasing caseload before this five -man Board." This justification is as misplaced as the other assumptions of the majority. As was pointed out in our dissents in Collyer, in the decade preceding Collyer such cases have averaged two per year, and the Board's willingness to decide them may have discouraged violations and thus have kept the number low. Subcontracting these cases to arbitra- tors may eliminate two cases per year from our 800-850 decisions, but at the expense of increasing the number of disagreements and the effort and expense of the parties in disposing of them on an ad hoc basis . And even if the workload reduction were very substantial, this hardly explains how the Act permits the , Board to remove the protection of the Act from a large segment of those it was designed to 18 Fn 13 and accompanying text, supra 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD protect, or why the Board instead of Congress should establish such a policy. For these reasons, there is no authority in the Act permitting the Board to force an employee to arbitrate his discriminatory discharge which alleged- ly violates the statute, and no reason for the Board to do so if it had such authority. We think the Board is required to determine the case on the merits and would do so. TRIAL EXAMINER'S DECISION LLOYD BUCHANAN, Trial Examiner: The complaint herein (issued April 9, 1970; charges filed January 30 and April 6, 1970), as amended, alleges that the Company has violated Section 8(a)(3) of the National Labor Relations Act, as amended, 73 Stat. 519, by suspending William F. O'Connell on December 10, 1969, and discharging him on March 17, 1970, because of his union membership and protected concerted activities; Section 8(a)(5) of the Act by refusing to bargain collectively with the Union as the exclusive representative of the employees in the established unit, by unilaterally changing established policy with respect to free access by union officials, and by refusing to implement various contract conditions; and Section 8(a)(l) of the Act by all of the acts noted above. Admitting the allegation of O'Connell's suspension and discharge, of appropriate unit, and of the Union's exclusive representa- tion, the answer, as amended, denies the allegations of violation. The case was tried before me at Boston, Massachusetts, on May 25 through 27, 1970, inclusive. Pursuant to leave granted to all parties, briefs have been filed by the General Counsel and the Company, the time to do so having been extended. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) AND CONCLUSIONS OF LAW I. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED The facts concerning the Company's status as a Massachusetts corporation, the nature and extent of its business, and its engagement in commerce within the meaning of the Act are admitted; I find and conclude, accordingly. I also find and conclude that, as admitted, the Union is a labor organization within the meaning of the Act. II. THE MOTION TO DEFER TO ARBITRATION On May 5 the Company moved the Regional Director to postpone the trial in this case and to defer to the jurisdiction asserted by an arbitrator on April 27. That motion was denied on May 12. I Wiith speed a desideratum and delay an alleged concern, and despite the to-do at the trial about prompt decisions and Board delay, counsel for the Company requested an extension to July 20 for the filing of briefs. If the arbitrator's decision has issued at the present writing, I have no knowledge We consider now, but briefly, the motion as renewed before me at the opening of the trial on May 25. It will serve little purpose to repeat here various facts analyzed and considered at the trial, from the filing of the charge herein and the simultaneous request for arbitration, through the request on April 10 that the arbitration hearing be adjourned until after the Board decision herein, the denial of that request, and the holding of the arbitration hearing on April 27 and May 14.1 Nor shall I now repeat the able arguments, pro and con, on the motion before me or the detailed analysis which I made on the record and my reasons as I denied the motion. I would add only the following to what I said ex directo on the bench. In Dubo,2 the union early filed a petition in the district court for an order requiring the respondent there to arbitrate various grievances, and it maintained its position until it obtained an order 4 months later directing such arbitration. This the Board recognized as it deferred action. In the instant case, with the arbitrator concerned with the alleged discrimination and the Board with that and the alleged refusal to bargain in that the Company unilaterally effected a change in policy which led to the discrimination, there would be a duplication of directly necessary testimony not to mention all else which would be relevant to an understanding of the relationship between the parties and the context of the events in issue. Indeed, the defense being that O'Connell was insubordinate with respect to orders which are alleged to have violated Section 8(a)(5), to uphold that defense would be to dispose of the allegations of discrimination. Without the benefit of hindsight but prospectively, before decision on the motions to adjourn or to defer, it could be expected that the testimony concerning the 8(a)(3) allegations and that concerning the 8(a)(5) could not be separated: Certainly even the December restriction on O'Connell's passage through the plant on union business (alleged to be in violation of Section 8(a)(5)), of which more below, explained and led to the alleged insubordinate acts by O'Connell which in turn, we were early told, were the reason for the discharge. With the explanation for the request for arbitration as necessitated by the contract between the parties, and an early request that the arbitration be held in abeyance, the Board should not, and should not have been requested to, abdicate its responsibil- ity because the arbitrator saw fit to deny the request for adjournment made to him and to proceed with the arbitration. This is not a case where the request that the matter proceed to decision by the Board was made only after the arbitration hearing and decision or even after the arbitration hearing had commenced. The right to deter- mine prospectively which proceeding should be conducted and be held to be determinative must he with the Board, not with the arbitrator. Whatever may be said in cases involving interpretation of a contract,3 the relevant contract terms here are not in dispute. The questions with respect to O'Connell' s warning of it. 2 Dubo Manufacturing Corporation, 142 NLRB 431. 3 Cf. Office and Professional Employees, Local 425 v. N. L. R. B., 419 F.2d 314 (C.A.D.C.); N.L.R.B. v. Acme Industrial Company, 385 U.S. 432; NATIONAL RADIO COMPANY, INC. notices, suspensions, and discharge concern the issue of Section 8(a)(5) unilateral actions taken by the Company, and that issue was not submitted to the arbitrator. This is in no sense a decision that any obligation by the Union to arbitrate under the contract is invalid. But any such obligation may not be held to frustrate or interfere with the Board's proceeding to determine whether an unfair labor practice has been committed; and sufficient reason has been shown for the Board to make a determination. III. THE UNFAIR LABOR PRACTICES A. The Alleged Violation of Section 8(a)(5) I find and conclude that, as alleged and admitted, the following is an appropriate unit within the meaning of Section 9(b) of the Act: All production and maintenance employees of the Company employed at its Melrose plant including model shop employees, factory clericals and leadmen exclusive of office clerical employees, guards, profes- sional employees and all supervisors as defined in the Act. An 18-year harmonious relationship between the Com- pany and the Union was marred within the last few months by a 2-week strike, the filing of many grievances, and the submission of two cases to arbitration, including the one noted above, these being the first two between the parties. Whether or not this be a case of post hoc, propter hoc, it was stipulated that within the last 2 years the Company has acquired a new president, vice president in charge of operations, and director of industrial relations. By memorandum of agreement on August 18, 1969, the parties extended the 2-year collective-bargaining agree- ment which they had entered into on August 2, 1967. That agreement provides, inter alia, as follows in article XIV: Section 3. Stewards and Local Union Officials and two (2) members of the Grievance Committee shall be permitted free movement within the plant area for which they are responsible. Section 4. No Union business other than grievances shall be conducted on the Company's time. O'Connell has for 5 years been president of the Charging Union. He has been zealous and very active on its behalf. Employee Wise, an inspector for the Company and a shop steward and member of the Union's executive committee, testified that although the Company kept cards which showed deviations and errors on various jobs, her group leader, Arthur, asked her to keep for him a list of rejects and deviations. She asked him whether Miller, the department manager and Arthur's superior, wanted it. Arthur allegedly replied that he was "doing many errands" for the Company and needed the list for his personal use so that he would know what was going on in the department. Wise testified further that from time to time Arthur asked her for the list, which she kept on scrap paper, and that some employees complained of her keeping a list limited to their poor work. About the end of November she told O'Connell about this adding that she did not know "whether it was legal for 314 (C.A.D.C.); N.L.R.B. v. Acme Industrial Company, 385 U.S. 432; Progress Bulletin Publishing Company, 182 NLRB No. 135. 537 a union member to keep a list for his own personal use or whether it was right for [her] to do so." O'Connell asked Arthur why he needed such a list and the latter allegedly agreed that the card system was "all right." Asked by O'Connell whether Miller had ordered the list, Arthur replied that Miller knew nothing about it and would not see it: It was only for Arthur's information. O'Connell then asked Arthur what he was going to do with the list and, when Arthur replied that he guessed he would have to get rid of it, O'Connell said, "I'll get rid of it [for] you," and tore it up. It does not appear that Arthur protested. Wise did not keep such a list thereafter. O'Connell testified that, after Wise told him that she was concerned about the list which Arthur had instructed her to keep, he asked Arthur about it and the latter replied that it was for his own information and that he had not been instructed to keep it; it was his own "personal business"; that Arthur then told Wise that she would not have to keep it4 and said that he would throw the list away; and that O'Connell thereupon tore the list and threw it away. When O'Connell on December 9 heard that Arthur had told Miller that O'Connell had destroyed company records, he spoke about it to Kajos, the Company's director of industrial relations, and was told that a meeting concerning the incident had been set up for that afternoon. At the meeting, which was attended by O'Connell, Walsh, the Union's vice president, Arthur, Kajos, Miller, and Pundick, the Company's vice president in charge of operations, O'Connell maintained that he had not destroyed any company records but only Arthur's list of four or five names. At 11 o'clock the next morning Kajos handed O'Connell a suspension memorandum which read as follows: You are hereby notified that you are being suspend- ed for deliberately destroying information required by the Company in the course of its business, and for intimidating fellow employees into disobedience of proper management instructions. The suspension is for the remainder of the work week for the period ending December 14, 1969. Please report to work on Monday, December 15, 1969. Miller testified that he had instructed Arthur to keep a report on rejects in the machine shop, and that on December 9, when he asked Arthur for it, the latter told him that O'Connell had torn it up. According to this version, Arthur had told Miller that O'Connell had the list and said that Arthur should not have it (whether Arthur said anything in reply, we do not know), and O'Connell later admitted that he had torn it up, saying that it was a personal piece of paper which Arthur had been keeping. It was evident as he testified that Miller had the issues in mind and was straining to justify the Company's position, filling in where he did not know, and hedging or avoiding a direct answer where he did know. I do not credit his testimony or explanations. Aside from this issue of credibility, whether Miller had asked for and wanted such a list or whether it was personal to Arthur and not a company record, it may be noted that there was no 4 Wise was not given a reprimand or a warning, nor apparently was she spoken to about it, although she did not keep the list thereafter. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD information on Wise's or Arthur's list that could not be obtained by looking at the card records which were at hand; and that approximately 10 days or 2 weeks intervened between O'Connell's destruction of the list and Miller's alleged request for it. I draw no inference from the fact that Arthur, apparently available to both sides, was not called as a witness by either to testify concerning what had occurred between himself, Wise, and O'Connell, and concerning his discussion with Miller. It is further to be noted that the suspension notice was given to O'Connell in the context of discussion which had been going on for some 3 months concerning a reporting procedure which O'Connell refused to accept and for which he received a warning notice on December 10 as we shall now see. It was while O'Connell was waiting to see Kajos with reference to the decision on the Arthur list episode that on Wednesday morning, October 10, he was given a warning notice in which he was charged with leaving one building that morning and going to the toolcnb in another building without notifying his supervisor. Miller told us that it had always been the practice that all of the union officials who reported to him with the exception of O'Connell (these being the vice president, the financial secretary, the two members of the Grievance Committee, and stewards) to notify him, before they left the department, when they were leaving, where they were going, and when they expected to return. O'Connell, he stated, did this only sometimes; we were not told when or the number of times. As chief union official, O'Connell spent far more time away from his job and on grievance business than did all of the other union representatives combined. While Miller had previously requested O'Connell to tell him when he was leaving the department on grievance business, the latter had never been warned about this. In September 1969 Miller told O'Connell that it would be convenient since Miller was not always there if O'Connell kept a record or logbook in this connection. Whether O'Connell at any time agreed to keep a record or to notify Miller is in dispute.5 What is not in dispute is that, while other union representatives did so report, the agreement between the Company and the Union did not provide for this and O'Connell through the years had not reported. When in September Miller provided a book for O'Connell to enter his comings and goings, O'Connell declared that he would not keep it. Sometime thereafter and again on December 8 or 9 Miller told O'Connell that he needed the information, O'Connell replying that he did not have to and would not supply it. Early on the morning of December 10 Miller told O'Connell that he would give him a warning slip if he did not report when he was leaving and where he was going. In the light of the other circumstances here, it is unnecessary to decide whether, as O'Connell claimed and Miller denied, the latter also asked that he be told whom O'Connell was going to see and about what. With the possible exception of March 17, when he was discharged because he had "deliberately refused to disclose reasons for [his] absence" there is no evidence and it is not claimed that on any of these occasions O'Connell was not in fact engaged in grievance business. While O'Connell had not reported in advance of his departure on December 10 as Miller wanted him to do, he did thereafter explain that he had gone to see Kajos concerning his grievance and the discussion the day before with respect to his tearing Arthur's list. The same issue of failure to report was involved in similar warnings given to O'Connell on December 30, January 8, and February 26. O'Connell was suspended on the afternoon of March 5, and the following day he was notified that this was to continue until March 16, the suspension notice reciting the various warning slips noted above. A similar warning notice was given to O'Connell on March 17, when he was discharged. An issue of fact intrudes in connection with the suspension notice of March 6 : It is claimed and denied that when he left his department on March 4 O'Connell said that he would return by noon. (A similar question arose with respect to O'Connell's whereabouts on March 17.) This is hardly determinative of the question before us since it is clear from the suspension notice and indeed from the entire record that the issue was then, as it had been and continued thereafter, the insistence on and the refusal to report. Despite an innuendo several times injected, there is no claim that O'Connell was engaged in improper activity or that he was a shirker. We disgress briefly to note the following letter which O'Connell sent to Kayos on December 12, while he was suspended: In accordance with the terms of Article XIV, Section 3, I want my rights to enter the Plant to conduct ordinary union business in connection with my job as President of the Local. I intend to have the customary Friday meeting with my Vice-President and two chief stewards. Grievances will be discussed and whatever other business that comes up subject to the operation of the Local within the Plant. I also intend to check on the financial affairs of the Local and may contact Payroll Department with regards to check-off and union dues. While access during a period of suspension can be included in the allegation that the established policy was unilaterally changed, the issue as framed and tried related to O'Connell's movements while he was on the job. Beyond O'Connell's statement that Kayos told him that he was not to reenter the plant while on suspension, there was no reference to this item, nor was it litigated; and I make no finding in this connection. The letter was early offered and received in chronological order with the other documents. Although as we shall see, grievance business may be broadly defined, O'Connell's December 12 letter distin- guishes in haec verba between grievances and other business. The contract limits compensable time to griev- ance business. But it did not limit O'Connell's activity to grievances while he was on suspension and not being paid. 5 Before the arbitrator, O'Connell testified, "In the beginning I thought it Kajos testified Asked how long he kept it, he replied, "It didn't take long to was a good idea until it got so involved I didn't want anything to do with it " get involved " The pertinent extract from the testimony before the arbitrator The Company can hardly claim that this was a waiver on which it relied in was by consent received after the close of the trial herein and is marked the face of O'Connell's continued objections, immediately expressed as "TX Exh 1." NATIONAL RADIO COMPANY, INC. The prior provision for free movement permits other activity beyond grievance business even if the time spent thereon be not compensable. Nor, as we recognize that this was not litigated, did the Company raise any question with respect to O'Connell's stated intention to take up "other business that comes up subject to the operation of the Local within the Plant." We return to the requirement to report which the Company now sought to impose on O'Connell. Miller testified that about October there was a change in the reporting of employees' time for charge purposes. He had complained that all of O'Connell's time was being charged to the commercial products department even though he spent so much time on union business and in other departments, and the finance department wanted to know where O'Connell was .6 It will be noted that this occurred after Miller had first spoken to O'Connell about reporting. If this was a good reason for getting reports on O'Connell's whereabouts, it was a new reason and called for modification of the existing procedure.. Indeed one can wonder whether the good reason now declared by Miller was the actual reason : Not until February 23 when O'Connell was assigned to his department, or February 24, did Tully, his new department manager, first hear of these rules informally; a higher company official more formally but orally told him about these rules when O'Connell complained that the proposed new rule would restrict his freedom of movement, his own reply was that such a rule was applied in most companies and that it was just "common courtesy." Basic to everything which occurred here and determina- tive of the issues before us is the question whether the Company lawfully imposed conditions on the activity of O'Connell, the Union's president, within the contract provision that union representatives are permitted free movement within the plant area for which they are responsible. An attempt to distinguish between union business and grievance business was quickly disposed of when O'Connell explained that he was on grievance business even when grievances were not filed: Investiga- tion was necessary and indeed desirable to avoid the unnecessary filing of grievances. (We recall that Miller wanted information when O'Connell left on grievance business.) It may be noted also that no complaint was made or issue raised, at the times when he was so engaged, that he was not on grievance business under the contract between the parties. In fact the Company's account which was maintained to show the amount of time which O'Connell spent away from his job without protest was itself labeled "union business." While Kajos at the trial spoke of the possibility that matters might arise which were to be handled in the union office and not on company time, no such issue was raised with O'Connell and it was not claimed that he was exceeding his rights under the contract. On the contrary, as noted, Miller's reason as given to us stemmed from 6 At this point Miller stated that he may have told O'Connell to report whom he was going to see and why. 7 The various union representatives have transferable quotas. The total 539 intracompany and interdepartment relationships and accounting. The rule with respect to plant access and paid nonwork- ing time had been declared in the contract between the parties and established in actual practice. Thus as Kajos told us, O'Connell had spent 1,195 hours or the equivalent of 33 weeks in 1969 on union business. The figures for 1968 were even higher, being 1,520 hours or the equivalent of 42 weeks. For a long time the hours which O'Connell spent throughout the plant area and in the office where he kept his union papers and worked on union business had left little time for performance of his functions as electronic technician. This was strikingly evident and even surprising until the time he spent on union business during the last 2 calendar years was brought out and it was seen that it was part of the established and unprotested practice.? This is not to say that the Company could not properly attempt to limit the extent of O'Connell's paid nonwork activity or to require that he report. But as a newly imposed condition of access and, beyond that, as a modification of an agreed-upon provision, all of this is properly and necessarily subject to collective bargaining. It is specious to argue that free movement within the plant area was not denied; it was now permitted only on conditions which neither the contract nor practice re- quired. Any attempt unilaterally to modify this would be and was violative, and the reference to the number of hours O'Connell spent was but a digression from the issue. Quite as much a digression was reference to the fact that other and lesser union representatives spent far less time than did O'Connell on grievance business. O'Connell explained why he refused to notify his own and other supervisors in advance of his excursions through the plant. Again, the issue is not the sufficiency of such reasons. The fact is that the practice without such notification or reporting was well and for a long time established. Even if O'Connell in a weak moment agreed to report and then quickly changed his mind, the requirement remained that the Company bargain with the Union concerning a change in the practice. The necessity therefor was recognized by the Company in 1967, when it proposed the following modification in the contract: "Under Article XIV, add provision that a Company representative shall be notified when a Union Official enters a department to which he is not assigned and shall be advised of such visit." According to the Union, the Company withdrew that proposal; according to the Company, the parties were to confer on the matter further. Even in the latter event and regardless of who had the burden of pressing for negotiations looking to a change or no change, there certainly was no bargaining, much less bargaining to an impasse," on the question and the Company thereafter proceeded unilaterally. The matter was not thereafter "worked out," nor is there any evidence of an attempt to work it out in negotiations between the Company and the Union during the period of almost 3 years which have elapsed since the proposal was made. Not even during the 1969 negotiations looking to renewal of the of hours allowed had not been expended at the time of trial. 8 Cf. The Proctor & Gamble Manufacturing Company, 160 NLRB 334, 336,339,426. 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement was there discussion between the parties concerning the movement of union officials through the plant. In short the issue is not the relative merits of the status quo or any attempt to modify it, but the Company' s efforts to effect modification outside of and in disregard of the bargaining machinery; and the action which it thereupon took in warning, suspending, and then discharging O'Con- nell. The very terms of the agreement and the practice long followed here distinguish this case from those cited by the Company. Aside from the fact that the demand that he report represented a departure from the long-recognized practice and accepted arrangement between the Company and himself, O'Connell's reason for not announcing in advance where he was going was plausible (if this be relevant to the issue). He explained that to announce where he was going would be to eliminate any possibility of catching violators of certain provisions of the contract. If other occasions permitted prior notice, such possibilities were not suggest- ed; they would in any case have constituted a modification of the existing procedure and were thus subject to negotiation . Even without materially changing the estab- lished procedure, the Company could reasonably have suggested some elements, such as the estimated time of return, and omitted others; but this it did not do. The new requirements that O'Connell report were insisted upon and thereafter referred to in toto. By amendment to the complaint, we also have the allegation that the Company refused to implement three contractual conditions . (Two other items were dismissed on consent.) If there has been no outright refusal by the Company, these items were litigated to the point of establishing that the Company has failed to implement some of these conditions and has, therefore, fallen short of its obligation to bargain. The first of these was that the Company reinstate the practice of making awards to employees who attain 25 years of service with it. There was some discussion concerning this item between O'Connell and Kayos. The latter testified that O'Connell was to supply certain information to him concerning watches and engraving, and that he did that about the first of the year. While intending to carry out this obligation, the Company at the time of trial was still obtaimng information concerning watches and had not yet decided whether to award watches or cash. The point is minor; but the Company's failure to act on this minor point indicates a disdain for its obligations under the contract and for the duty to bargain collectively. The second item relates to the requirement in the contract between the parties (as extended by memorandum of agreement which was entered into on August 18 and on the basis of which the strike was terminated and the employees returned to work) that the Company prepare and distribute a copy of the contract to all employees in the unit. Although O'Connell had spoken to Kajos about this many times, the contract as extended has not been distributed. Here again is a company violation of its obligation. The third item called for implementation of warning rules with respect to disciplining employees. O'Connell testified that the Company agreed to set up a formal warning system within 2 months after the extension in August; it proposed a set of regulations but O'Connell objected to them; they were to be discussed later but the parties "never got around to" it . There were in fact a number of discussions , "at least once a week" for a period. It is not clear that the Company in this connection was guilty of any greater failure to proceed further than was the Union. The allegations with respect to this item is dismissed. B. The Alleged Violation of Section 8(a)(3) On March 17 Kajos handed O'Connell a discharge memorandum, which reads as follows: The purpose of this letter is to inform you that you are hereby discharged from the employ of National Radio Company, Inc. effective March 17, 1970. You have previously been issued warnings on December 10, 1969, December 30, 1969, January 8, 1970 and February 26, 1970 for failure to report to your Foreman as directed . Further, on March 6, 1970 you were suspended for insubordination for a similar offense. On March 17, 1970, you left your work area indicating that you were going to the Personnel Department to discuss grievances . You concluded your business there at approximately 11:00 A.M. and failed to return to your department to notify your supervisor until 1 :30 P.M. Upon questioning by your supervisor, you deliberately refused to disclose reasons for your absence and being in Plant 2 and for not reporting back to work earlier. Such acts of insubordination, after numerous verbal warnings, written warnings, and a suspension are grounds for discharge effective this date. Were O'Connell's refusal to disclose reasons for his absence from his work station on March 17 a new point standing alone, he could cite the "free movement" provision in the contract . But the discharge memorandum also recites and is based on the warnings given to him and on the March 6 suspension (not the December suspension). Much that was noted in the preceding section could but need not be repeated here. The Company's unilateral and violative action under Section 8 (a)(5) cannot support its acts vis-a-vis O'Connell. The procedural changes which it attempted prompted his refusals to obey, which the Company now termed insubordinate . O'Connell was not obliged to permit violation or to obey violative instruc- tions. Warnings issued and discipline imposed unilaterally did not create an obligation on O'Connell or warrant action against him. The foundation being unlawful, the Company's action based thereon is without lawful support: O'Connell's suspensions in December and March and his discharge violated Section 8(a)(3) of the Act, and I so find and conclude. If O'Connell was aggressive in his union activity, his acts were within the terms of the agreement between the parties and the long-recognized practice. The Company in its brief attempts to state the question as follows: It is submitted by the Company that whether the Company was mistaken in laying down such rules for NATIONAL RADIO COMPANY, INC. 541 O'Connell to follow or not really is not a paramount question since no matter how mistaken management was in making its rules, nothing can justify the type of insubordinate self-help in which Mr. O'Connell en- gaged. But the issue is not whether the Company was mistaken any more than it is whether O'Connell might have been more discreet. It is rather whether the Company unilateral- ly attempted and imposed changes in the bargaining relationship and procedure. The entire record indicates that, whatever might other- wise have been accomplished, if the Company's new administration deemed changes fair, desirable, and neces- sary, it proceeded after the August strike without sufficient regard for the rights of the Union as collective-bargaining representative and of employee O'Connell under the Act. While the facts may indicate animus toward O'Connell because he stood alone in his continued refusal to report, a finding of discrimination does not depend on mens rea. The unilateral changes and failure to implement contractu- al conditions, as well as the warnings, suspensions, and discharge are strict liability offenses aside from considera- tion of intent or animus .9 (b) Upon request, recognize and bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit and embody in a signed agreement any understanding reached. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records to facilitate the checking of the amount of backpay due. (d) Post at its place of business in Melrose, Massachu- setts, copies of the attached notice marked "Appendix." 12 Copies of said notice, on forms provided by the Regional Director for Region 1, shall be posted by the Company, after being duly signed by its representative, immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to its employees are customari- ly posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 1, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.13 RECOMMENDED ORDER10 Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Company, National Radio Compa- ny, Inc., Melrose, Massachusetts, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit by unilaterally changing the established policy of permitting union officials free access to and free movement in the plant area, and by failing to implement the conditions of the agreement between the Company and the Union. (b) Discouraging membership in Local No. 231, Interna- tional Union of Electrical, Radio & Machine Workers, AFL-CIO, or in any other labor organization by discrimi- natorily suspending or discharging any of its employees or discriminating in any other manner in respect to their hire or tenure of employment, or any term or condition of employment. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to William F. O'Connell immediate and full reinstatement to his former position or, if that no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay sustained by reason of the discrimination against him by the suspensions and discharge, with interest to be computed in the customary manner;11 and notify him, if he is presently serving in the Armed Forces of the United States of his right to full reinstatement upon proper application after discharge from the Armed Forces. 9 Cf. Crown Cork & Seal Company, Inc., 182 NLRB No. 96. 10 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions , and Order, and all objections thereto shall be deemed waived for all purposes. 11 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827; Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v. N.L.R.B., 311 U.S. 7; F. W. Woolworth Company, 90 NLRB 289, 291-294; Isis Plumbing & Heating Co., 138 NLRB 716. 12 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board " shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 13 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for Region 1 , in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Local No. 231, International Union of Electrical, Radio & Machine Workers, AFL-CIO, or any other labor organization by discriminatorily suspending or dis- charging any of our employees or discriminating in any other manner in respect to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT unilaterally change the established policy of permitting union officials free access to and free movement in the plant area, or fail to implement the conditions of the agreement between the Company and the Union. WE WILL NOT in any other manner interfere with, 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Local No. 231, International Union of Electrical, Radio & Machine Workers, AFL-CIO, or any other labor organization , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. WE WILL offer to William F. O'Connell immediate and full reinstatement to his former position or, if that no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered as a result of the discrimination against him. WE WILL notify William F. O'Connell if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accord- ance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. WE WILL recognize and bargain, upon request, with Local No. 231, International Union of Electrical Radio & Machine Workers , AFL-CIO, as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment, or other conditions of employment, and embody in a signed agreement any understanding reached. The bargaining unit is: All production and maintenance employees of the Company employed at its Melrose plant including model shop employees, factory clericals and leadman exclusive of office clerical employ- ees, guards, professional employees and all supervisors as defined in the Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of this Union or any other labor organization, except to the extent that such right may be affected by an agreement requiring membership as a condition of employment as authorized in Section 8(a)(3) of the Act. NATIONAL RADIO COMPANY, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Region 1, 20th Floor, John F. Kennedy Federal Building, Cambridge & New Sudbury Streets, Boston, Massachusetts 02203, Telephone 617-223-3300.