Local 130, International Electric Workers

760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Electric, Radio and Machine Workers, Local Union No 130, AFL-CIO-CLC (Westinghouse Electric Corporation) and Leroy Waddell Case 5-CB-1 130 December 5, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On February 22, 1972, Administrative Law Judge 1 Arthur Leff issued the attached Decision in this proceeding Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respon- dent filed cross-exceptions and a supporting brief Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be dismissed in its entirety 1 The title of Trial Examiner was changed to Administrative Law Judge effective August 19, 1972 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ARTHUR LEFF, Trial Examiner Upon a charge filed by Leroy Waddell on April 26, 1971, the General Counsel of the National Labor Relations Board, by the Regional Director of Region 5, on August 27, 1971, issued a complaint against the Union above named, herein inter- changeably called the Respondent and the Union, alleging that the Respondent had engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) and Section 2(6) and (7) of the National Labor Relations Act in respects to be particularized below The Respondent filed an answer denying the commission of the alleged unfair labor practices A hearing was held on November 23, 1971, at Baltimore, Maryland At the close of the hearing, the parties argued the issues orally on the record On January 10, 1972, the General Counsel and the Respondent filed briefs Upon the entire record in the case, and from my observation of the witnesses, I make the following FINDINGS OF FACT I THE BUSINESS OF THE COMPANY Westinghouse Electrical Corporation (Westinghouse) is a Pennsylvania corporation with various installations throughout the United States, including several at Balti- more, Maryland, at which it is engaged in the research, manufacture, and distribution of electrical products Westinghouse's annual gross revenue from the sale and shipment of its Baltimore products to customers located outside the State of Maryland is in excess of $50,000 The Respondent admits, and it is found, that Westinghouse is engaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The Respondent is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Introduction to the Issues The basic issue in this case is whether the Respondent violated Section 8(b)(1)(A) and (2) of the Act by requesting Westinghouse to comply with an arbitrator's award, dated March 30, 1971, relating to Leroy Waddell, the Charging Party As will more fully appear below, the arbitrator in his decision upheld a grievance which the Respondent had filed against Westinghouse in May 1969, charging Westing- house with a contract violation in rejecting its demand to discharge Waddell for nonpayment of union dues which had accrued in early 1969, while Waddell was still a member of the Respondent, subject, according to the Respondent, to the maintenance-of-membership require- ments of the governing collective-bargaining contract By way of remedy, the arbitrator in his award directed Westinghouse to discharge Waddell as the Respondent had demanded, but conditioned his dismissal order to allow Waddell to avoid discharge if within 30 days of the award he paid or tendered to the Respondent, not only the amount of unpaid dues involved in the grievance, but also the additional dues he would have been required to pay had he not resigned from the Union in June 1969, and if, following such payment or tender, he continued to pay or tender to the Respondent dues for the remainder of the contract term The complaint contains three counts of alleged 8(b)(1)(A) and (2) violations, all stated to have occurred "since on or about March 30, 1971," the date of the 200 NLRB No 115 LOCAL 130, INTERNATIONAL ELECTRIC WORKERS 761 arbitrator's award One relates to Waddell's dues arrears prior to his resignation from the Union, for which, alone, the Respondent had pressed througn arbitration its demand for Waddell's discharge As to this, the complaint alleges that the Respondent's attempt to cause Waddell's discharge was unlawful because these arrears had been incurred "during a period when [Waddell's] membership rights had been significantly impaired for reasons associat- ed with internal union affairs "1 The second and third counts relate to the conditions of the arbitration award under which Waddell was to be permitted to avoid discharge The complaint alleges in one of these counts that the Respondent unlawfully "attempted to cause Westinghouse to discharge Leroy Waddell because of his failure to pay dues during a period when he was not obligated to obtain or maintain membership in the Union " And, in the other, it alleges that the Respondent "attempt- ed to cause Leroy Waddell, under threat of discharge, to obtain and maintain membership in the Union during a period when he was not obligated [to do so] " The Respondent in its answer denies all the unfair labor allegations of the complaint, and, in addition, affirmatively alleges that the acts complained of are "in fact and truth" directed to the arbitrator's award B The Relevant Facts The facts in this case are not essentially in dispute Waddell has been employed by Westinghouse since 1961 as a welder in its surface division at Friendship Interna- tional Airport, Baltimore, Maryland The Respondent is the certified bargaining representative of the production employees in that division The basic collective-bargaining contract covering that bargaining unit, as well as other units of Westinghouse employees throughout the nation, is the National Westinghouse-IUE Agreement of 1950, as thereafter modified and supplemented from time to time At all times material herein that agreement has provided, in section VI thereof, for a modified union shop which requires each new employee hired after 1951 to become a member of the Union after the 45th day of his hire and thereafter to maintain his membership in the Union, but also accords him the right to resign from the Union by giving written notice to the Company and the Union during the period from June 4 to June 11 of each year An employee who resigns from the Union during a withdrawal period is thereafter relieved of any contractual obligation to obtain or maintain union membership as a condition of employment The agreement obligates the Company upon written request of the Union to terminate any employee who is required to but fails to comply with the union- i Although not expressly pleaded in the complaint the General Counsel also made the claim at the hearing, reiterated in his brief, that the Respondent s alleged attempt since on or about March 30 1971 to cause Westinghouse to discharge Waddell for nonpayment of his preresignation dues arrears was additionally violative of the statute because Waddell at that time was no longer subject to the union-security provisions and sanctions of the governing labor contract The Respondent s brief addresses itself to this question thus conceding sub sdenbo that the issue raised by this added claim is properly to be considered a litigated one 2 Although it appears that the national agreement has been renegotiated at 3-year intervals the last time in 1969 resulting each time in new contract expiration dates there is nothing in this record to indicate that the union- security provision, subject, however, to the same qualifica- tions as are contained in the last proviso of Section 8(a)(3) of the Act 2 Waddell joined the Respondent in 1961, shortly after he was employed, and at the same time signed a checkoff authorization for the deduction from his pay of his regular weekly dues, amounting at that time to $1 15 In June 1967, the Respondent called and conducted a strike at Westinghouse's surface division Waddell, as well as some 10 other union members, crossed the picket line and worked during the strike As a result, internal union disciplinary proceedings were instituted against them in November 1967 Waddell was given due notice of the charges against him and of the hearing to be held thereon Following the hearing, which he did not attend, Waddell was found guilty of an infraction of union rules He was fined $400, the approximate amount of his earnings during the strike period The disciplinary penalty imposed upon Waddell provided, in addition, that as long as the fine remained unpaid, but for a period not to exceed 5 years, he was to be disqualified from running for office or attending union meetings At the end of the 5 years, even though the fine was not paid, the slate was to be wiped clean-Wad- dell could then again run for office and attend meetings, and the fine would be regarded as having been cancelled out The same disciplinary action was taken against the other employee-members who were charged at that time with an infraction of union rules for working during the strike, except that the amount of the fines imposed varied among them, depending on their approximate earnings during the strike period After the disciplinary action was taken against him, Waddell continued to allow his dues to be deducted under his checkoff authorization, without protest He did not avail himself during the June 1968 withdrawal period of his contractual privilege to withdraw from the Union 3 Effective on January 6, 1969, the Union increased its regular weekly dues from $1 15 to $1 65 When the Union advised Westinghouse that its dues were now to be $1 65, Westinghouse, for some reason not entirely clear in the record, took the position that it would consider the earlier checkoff authorizations for $1 15 weekly deductions to be terminated as of the effective date of the dues increase As a result, the Union withdrew all checkoff authorizations previously on file with the Company and requested its members to execute new ones for the increased amount By late March, the Respondent had received newly signed checkoff authorizations from all but two of its mem- bers-Waddell and a Mrs P A Hams On March 25, 1969, the Respondent wrote Waddell-a similar letter was sent to Mrs Hams-calling his attention security provisions of the agreement were ever terminated or suspended Absent such evidence it is fairly to be inferred from a reading of the documents in evidence that the union security provisions referred to above remained continuously in full force and effect , without any hiatus period at all times relevant to this proceeding 3 Waddell testified that he wanted to resign in 1968 but was out sick from May until September and that upon his return to work he asked the Respondents chief steward whether he could withdraw from the Union at that time and was told that he could not There is nothing in Waddell s testimony to indicate that he predicated his request for withdrawal upon the deprivation of his union membership privileges 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the fact that it had not yet received a new checkoff card from him and urging him to sign one immediately The letter went on to make clear, however, that if Waddell did not wish to pay his dues through payroll deductions he could do so in person at the union hall The letter concluded by directing Waddell's attention to the provi- sion in the national agreement obligating Westinghouse to terminate employees subject to the contract's umon-secun- ty provisions for delinquency in the payment of their dues Despite that notification, Waddell did not sign a new checkoff card Nor did he pay or tender directly to the Respondent any part of his regular weekly dues that had become payable since January 6, 1969 Waddell testified that he was unwilling to sign the checkoff card for the enlarged amount of dues because he understood that the added amount was to be used for a strike fund to which he was opposed, and that he so informed Melvin Floyd, the Respondent's chief steward The Respondent waited until April 14, 1969, and then wrote Westinghouse requesting Waddell's termination for nonpayment of dues pursuant to the applicable union- security provisions of the contract 4 Shortly thereafter, Waddell met and conferred with several officials of Westinghouse's personnel department concerning the Union's dismissal request Following that meeting, Wad- dell signed a checkoff card, effective April 29, 1969, authorizing the payroll deduction of his dues in the increased amount He did not, however, pay or tender to the Respondent any part of his arrears in dues, amounting to $19 20, that had become payable since January 6, 1969 Because of Waddell's failure to pay these arrears, the Respondent continued to press for his discharge Westing- house refused to honor the discharge request, taking the position initially that it could not grant the discharge request because Waddell had now signed a checkoff authorization pursuant to which his current dues were being deducted On May 19, 1969, the Respondent filed a grievance charging Westinghouse with a contract violation in refusing to discharge Waddell While the Respondent's grievance was pending, the June 1969 withdrawal period came up Within that period, Waddell, complying with procedures specified in the contract, notified the Respondent and Westinghouse of his resignation from the Union 5 Waddell at the same time withdrew his checkoff authorization Under that authoriza- tion the Respondent had deducted from Waddell's pay and had remitted to the Union his dues from April 29, 1969, to the date of Waddell's resignation The $19 20 which Waddell owed for the period from January 6 to April 29, 1969, however, still remained unpaid Thereafter, the Respondent pursued the grievance it had filed on May 19, 1969, through the various stages of the 4 The Respondent in the same letter also requested the dismissal of Mrs Hams for the same reason Mrs Hams soon thereafter signed a new checkoff card and paid the full amount of the dues for which she was ther in arrears The Respondent then dropped its demand for her discharge 5 Notwithstanding the Respondents contention to the contrary Wad- dell s resignation from the Union is found to have been an effective one I find nothing in the language of the contract to support the Respondents position that Waddell was disabled from resigning at a tune when he was in arrears in the payment of his dues The Respondent s present contention in this respect is moreover inconsistent with a concession admittedly made by its president, Eugene Watts, in the arbitration proceeding that Waddell contract's grievance procedures The national agreement provides for three grievance steps at the plant level, with a further right to refer the grievance to the "national appeal" level It was not until February 25, 1969, that the Respondent's grievance was rejected by Westinghouse at the national appeal level On March 23, 1970, the Respondent requested arbitration On March 31, 1970, Westinghouse agreed that the issue presented by the Respondent's grievance was properly subject to final and binding arbitration under the terms of the governing contract The arbitration hearing was held on October 8, 1970, before Sidney A Wolff, the duly designated arbitrator Waddell, although not formally made a party in the arbitration proceeding, was given notice of the proceeding, was present throughout the hearing, and testified as the only witness called by Westinghouse As noted above, the contract provision which Westinghouse was charged with having violated in refusing the Respondent's discharge demand is drawn in language tracking that of the last proviso to Section 8(a)(3) Thus, although the precise question before the arbitrator was technically one of contract rather than of statutory violation, in essence the question involved was substantially the same as it would have been before the Board Westinghouse's primary position before the arbitrator-like that of the General Counsel before me-was that Waddell was relieved of any obligation to pay dues under the union-security clause, and Westinghouse accordingly of any obligation to honor the dismissal demand, because Waddell's membership privi- leges had been substantially impaired by the Respondent's earlier disciplinary action against him The record made in the proceeding before the arbitrator is in evidence in this case It reveals that that issue, as well as all others before the arbitrator, was fully litigated, with the facts explored in substantially the same depth as they have been on the record made in this case It also reveals that Westinghouse vigorously defended Waddell' s interests, just as it had done throughout the course of the grievance proceedings On March 30, 1971, the arbitrator rendered his opinion and accompanying award The arbitrator in his fully reasoned opinion, after carefully assessing the facts and arguments presented to him, determined that "the Compa- ny had no right to refuse the Union's request to terminate the employment of Mr Waddell, and that it violated the provisions of Section VI of the National Agreement when it refused to discharge him "6 Having made that determi- nation, the arbitrator in his opinion turned to the "remedy," which he stated the parties had left to him As to that, he stated In molding the remedy, I bear in mind that because of the Company's failure to dismiss Mr Waddell, he has was eligible to withdraw from membership at the time he did 6 In rejecting the Company s contention that membership was not available to Waddell on the same terms and conditions as were applicable to other members because of the 1967 disciplinary action the arbitrator stated in part as follows In view of the fact that the terms and conditions of union membership including the Union s disciplinary procedures apply with equal force to all members there is no ment in the position asserted by the Company that Mr Waddell was discriminated against when he was disciplined for violating a basic tenet of trade unionism LOCAL 130, INTERNATIONAL ELECTRIC WORKERS 763 been, for nearly 2 years steadily and gainfully em- ployed Clearly he has profited from this, and, as I have already noted, he has enjoyed the benefits of the Union contract But, in any event, because of the special circumstances in this case , I believe Mr Waddell should be given an opportunity to remedy the situation and reinstate himself in the Union I am therefore issuing the conditional dismissal order set forth in my formal Award Accordingly, the arbitrator made the following award I The Company violated the provision of Section VI of the National Agreement when it refused to discharge Leroy Waddell 2 The Company shall discharge Leroy Waddell, unless (a) Within 30 days from the date hereof, he shall pay or tender to the Union his dues covering the period from 6 January 1969 to date of such payment or tender, and (b) Thereafter he shall regularly pay or tender his dues for the entire period of the remainder of the term of the existing contract, regardless of the withdrawal privileges of Section VI, E 3 In the event Leroy Waddell shall fail to comply with the conditions herembefore provided, then on 3- days' written notice from the Union to the Company, the discharge of Leroy Waddell shall become effective and the Company shall thereupon terminate his employment On April 30, 1971, Waddell called at the Respondent's office, signed a checkoff card, and presented it to an office secretary along with his check for $75 to cover part payment of the approximately $180 which was then required for compliance with 2(b) of the arbitrator's award When presented with the tender of part payment, the secretary made a telephone call, apparently to the union headquarters in Pittsburgh She then told Waddell that the Respondent would not accept part payment So far as appears, there had been no previous communication between the Respondent and Waddell concerning the award, and the Respondent had made no demand upon Waddell for payment of the "dues" upon which the arbitrator had conditioned the nonapphcation of his dismissal order Nevertheless, 4 days before Waddell's visit to the union office-on April 26, 1971, to be precise -Waddell had filed his charge in the instant proceeding alleging that the Respondent had "since on or about March 30, 1971" violated his Section 7 rights "by causing him to pay dues to [the Respondent] although he [had] withdrawn his membership and [had] threatened to cause his discharge in the event that he does not pay such dues " The Respondent waited until the 30-day period had expired before contacting Westinghouse concerning the award Then, on May 6, 1971, acting through its Westing- house Conference Board, it wrote Westinghouse, stating "Pursuant to Arbitrator Wolff's award the Union is requesting the release of Leroy Waddell for failure to comply with the award " Westinghouse, in response, requested deferral of discharge action pending determina- tion of the unfair labor practice case initiated by Waddell's charge It also expressed its view, which it asked the Respondent to confirm, that the Respondent's May 6, 1971, discharge request was actually being made under the union-security provisions of the contract rather than pursuant to the decision of Arbitrator Wolff, as the Union had stated The Respondent, however, refused to agree, insisting that the only demand it was now making was for compliance with the arbitrator's award In June 1971 , Waddell paid the Respondent $186, the total amount of his "dues" from January 6, 1969, to the date of payment His "dues" since that time have been checked off pursuant to the authorization he signed There has been no break in Waddell's employment His job status is not at stake in this proceeding C Analysis and Concluding Findings The alleged unfair labor practices in this case are bottomed specifically upon the demand made by the Respondent of Westinghouse on May 6, 1971, for enforcement of the discharge direction contained in the arbitrator's award That direction was predicated, in turn, upon the arbitrator's determination of meet in the grievance filed by the Union, arising from Westinghouse's refusal to honor the Respondent's request for the discharge of Waddell because of his default in the payment of the dues, amounting to $19 20, which accrued poor to Waddell's resignation from the Union in June 1969 It is undisputed that these dues were incurred at a time when Waddell's membership privileges were , as alleged in the complaint, "significantly impaired for reasons associated with internal union affairs " Leaving aside the question of whether the Respondent's discharge demand amounted in these circumstances to an unfair labor practice, it is at least clear from the foregoing that the record supports the factual allegations of what has been described above as the first count of the complaint The same cannot be readily said of the factual allega- tions contained in the second and third counts of the complaint The demand for Waddell's discharge which the Respondent pressed to arbitration was an unconditional one, predicated entirely upon Waddell's delinquency in the payment of preresignation dues There is nothing in this record to indicate that the Respondent ever demanded of Waddell the payment of dues during the period following his resignation , that it ever asserted to Westinghouse, or contended before the arbitrator, that Waddell remained obligated after his resignation to continue paying dues as a condition of employment, or that it ever proposed to the arbitrator that he remedy the contract violation asserted in the grievance by conditioning Waddell's future retention of employment on the terms prescribed in the award The alternative to discharge prescribed in the award was devised by the arbitrator as an equitable remedial measure, essentially for the benefit of Waddell, to give him an opportunity to avoid, on terms the arbitrator considered fair and reasonable both to him and to the Union, the discharge action which the arbitrator had determined was contractually called for by reason of Waddell's preresigna- tion dues delinquency In these circumstances, it seems to me dubious at best that an adequate factual basis exists for assigning to the Respondent responsibility for attempting to cause Waddell's discharge because of his failure to pay 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dues during the period following his resignation from the Union, or for attempting to cause Waddell, under threat of discharge, to obtain and maintain membership in the Union, as alleged in the second and third counts of the complaint I find it unnecessary, however, to pass definitively on that question, or, for that matter, on the merits of any of the other unfair labor practice issues in this case For I believe in the situation here presented that it would better effectuate statutory policy for the Board to eschew exercising its jurisdiction over the subject matter in this case in deference to the arbitrator's decision and award Where matters in controversy in an unfair labor practice case have already been the subject of an arbitration proceeding and award, it has long been the Board's settled policy to decline to exercise its adjudicatory authority over the alleged unfair labor practices and to honor the arbitral award, unless it appears that the procedures followed in the arbitral proceeding were not fair and regular, or that the results reached were such as to be clearly repugnant to the purposes and policies of the Act 7 The Board has applied that policy in situations, comparable to the one at hand, where the basic question involved in both the arbitration proceeding and in the unfair labor practice case related to whether an employee was properly subject to discharge upon demand of a union for an alleged failure to comply with maintenance-of-membership requirements under a union-security clause 8 That policy has also been applied where, also as in this case, the alleged unfair labor practice arose in part from action taken to comply with a direction in an arbitrator's remedial order claimed to have been unlawful under the Act 9 The Board has not made it a prerequisite to the application of that policy that the employee affected by the alleged unfair labor practices must have been a formal party to the arbitration proceed- ing Where, as here, arbitration as a means of resolving the controversy is prescribed by the collective-bargaining agreement covering the unit in which the affected employee is a member, the employee has been given notice of the arbitration proceeding and has acquiesced or participated therein, and it appears that his interests have been adequately represented, the Board will consider him bound by the award to the same extent as the formal parties 10 In determining whether it would effectuate statutory policy to give binding effect to an arbitration proceeding, the Board does not require that the arbitrator must have ruled on the issues in the same way the Board would have done, it is enough to satisfy its policy standard that the arbitrator's decision and remedy is not "palpably" wrong or repugnant to the purposes of the Act 11 In the instant case, the General Counsel makes no claim of unfairness or of procedural irregularity in the arbitration proceeding He does, however, attack the arbitrator's decision and award as repugnant to the purposes and policies of the Act-and this essentially for the reasons he has advanced to support the unfair labor practice allega- tions of the complaint The General Counsel urges, to begin with, that even if Waddell under the contract was properly subject to discharge for nonpayment of dues in April 1969, when the Respondent initially demanded that action, it was at variance with Board law to direct his discharge for that reason in March 1971, when the arbitrator rendered his decision, because at that time Waddell, by reason of his effective resignation from the Union nearly 2 years before, was no longer subject to the union-security requirements of the contract then in force To support that contention, the General Counsel relies on New Jersey Bell Telephone Co, 106 NLRB 1322, enfd 215 F 2d 835 In the cited case the Board held it unlawful for an employer during the term of a new contract to honor a union's demand for the discharge of an employee because he had defaulted in his maintenance-of-member- ship obligations under an earlier contract It appeared in that case, however, that the employee had effectively resigned from the union during a hiatus period between the two contracts and that at the time of the union's demand (first made well into the term of the new contract) he was no longer required to be a union member as a condition of employment The situation in this case is clearly distin- guishable in that here the Respondent's demand for Waddell's discharge, as well as the filing of the grievance, occurred prior to Waddell's resignation and at a time when, as found by the arbitrator, Waddell was still subject to the union-security obligations of the contract then in force I am aware of no case in which the Board in such a situation has ever held that either a subsequent resignation or the passage of time has a curative effect on an employee's earlier breach of his contractual obligation More precisely in point is the Board's decision in International Harvester Co, supra, where a similar conten- tion was advanced by the General Counsel in a factual context identical in this respect to the one in the case at hand The Board in that case (at 928-929), after pointing to the factual distinction mentioned above, and noting, therefore, that the cases relied upon by the General Counsel did "not answer basic questions respecting [a union's] contractual right to pursue arbitration to enforce its demand, first made during the contract term, for the discharge [of an employee for dues delinquency] as required by a concededly valid union security agreement," went on to state However, we need not decide these questions in determining to accept the arbitrator's award since it plainly appears to us the award is not palpably wrong To require more of the Board would mean substituting the Board's judgment for that of the arbitrator, thereby defeating the purposes of the Act and the common goal of national labor policy of encouraging the final adjustment of disputes "as part and parcel of the collective-bargaining process " On the question just considered, I regard International Harvester as controlling precedent As a further reason for not honoring the arbitrator's 7 See e g Spielberg Manufacturing Co 112 NLRB 1080, International 8 International Harvester Co supra Western Electric Co supra Harvester Co 138 NLRB 923 enfd sub nom. Ramsey v N L R.B 327 F 2d 9 International Harvester Co supra 784 (CA 7) cert denied 377 US 1003 Local 1522 IBEW (Western 10 International Harvester Co supra Western Electric Co, supra Electric Co) 180 NLRB 131 See also Collyer Insulated Wire 190 NLRB 11 Ibid No 150 LOCAL 130, INTERNATIONAL ELECTRIC WORKERS 765 award, the General Counsel stresses that the arbitrator's conditional dismissal order was bottomed on Waddell's failure to pay dues under the union-security clause during a period when, as found above, he was disqualified from attending union meetings or running for office while the $400 fine levied against him remained unpaid The General Counsel does not dispute that the Respondent acted lawfully and in furtherance of legitimate union objectives in levying against Waddell the $400 fine and accompany- ing 5-year disqualification See N L R B v Allis Chalmers, 382 US 175 And he concedes that the Respondent's discharge demand that led to the grievance and ultimately to the arbitrator's award was in no way associated with the 1967 disciplinary action that the Respondent had meted out to Waddell for crossing its picket line The General Counsel contends, nonetheless, that it was repugnant to statutory policy to subject Waddell to the obligations and sanctions of the union-security agreement while at the same time substantially precluding him from the enjoy- ment of privileges that normally go with union member- ship To support that contention, the General Counsel relies on the cases cited in the margin 12 None of them, however, may reasonably be read as supplying controlling precedent in the situation here presented 13 The General Counsel also argues that it is unfair for a union "to expect its full due" from a union member while depriving him of "his right to possess all the privileges of a member in good standing " But, as the Board has already had occasion to declare, "the Act does not authorize the Board to evaluate the fairness of union discipline meted out to protect a legitimate union interest "14 The General Counsel has pointed to nothing in the statute, or in its legislative history, that discloses a clear statutory policy to make union-security provisions inopera- tive with respect to union members who have been subjected to lawful union disciplinary action short of expulsion The only provision in the Act bearing even tangentially on that point is the proviso in Section 8(a)(3) declaring, That no employer shall justify any discrimination 12 Local 4186 Steelworkers (McGraw Edison Co) 181 NLRB No 162 Communications Workers Local 9503 (The Pacific Telephone and Telegraph Company) 193 NLRB No 15 Los Angeles Paper Handlers Union No 3 (J W Clement Pacific Press Division) 188 NLRB No 64 is In McGraw Edison the Board was directly concerned with the issue of whether the threatened enforcement of union security sanctions against an employee whose membership rights had been substantially impaired through union disciplinary action taken against him for filing a decertifica tion petition was in conflict with the overriding statutory policy of providing employees uninhibited access to the Boards processes (Cf N L R B v Marine Shipbuilding Workers 391 U S 418 Price v NLRB 373 F 2d 443 (C A 3), Tawas Tube Products Inc 151 NLRB 46 Blackhawk Tanning Co Inc 178 NLRB 208) The Board found that the union s insistence upon the employees continued payment of dues under paid of discharge, could not be disassociated from the suspension of his membership rights resulting from his decertification activity, and that the two together constituted an unjustified restraint upon access to Board processes To avoid any ovennterpretation of its decision-such as the General Counsel seeks in this case-the Board in McGraw Edison was careful to note As our decision in this case is based on the coercive steps taken as a result of filing a decertification petition we need not pass on whether a labor organization violated 8(b)(1)(A) through enforcement of a union security clause against a member whose membership was impaired for reasons unrelated to seeking access to Board decertification processes The Pacific Telephone case involved suostantially the same factual situation as in McGraw Edison except that the employees there involved had been against an employee for nonmembership in a labor organization (a) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members That provision was included in the national agreement and the arbitrator specifically considered it in deciding that Waddell remained bound by the contract's umon-security obligations and sanctions, notwithstanding the union disciplinary action that had been taken against him The arbitrator construed that provision as mapplicable in Waddell's case, because the Union's constitutional provi- sion for the violation of which Waddell was disciplined constituted a term and condition of union membership that was applicable to all union members, not merely to Waddell Considering the absence of any clear statutory provision, legislative history, or controlling Board prece- dent to the contrary, his construction of the contract and resultant determination can scarcely be said to be unreasonable, let alone "clearly" wrong or repugnant to statutory policy There remains for consideration the question of whether the Board should decline to respect the arbitrator's decision and award because of its remedy I have already ruled that no adequate basis appears in this case for the Board to dishonor the arbitrator's basic determination that Westinghouse had no right to refuse the Respondent's request to terminate Waddell With that as a premise, there can be no doubt that it was both appropriate under the contract and consonant with statutory policy for the arbitrator, by way of remedy, to direct Westinghouse to take the discharge action against Waddell that the arbitrator found it should have taken in the first instance So much the General Counsel does not dispute He does contend, however, that because the arbitrator did not stop there, but went on to extend to Waddell the option of avoiding discharge by (a) paying past "dues" which included "dues" for the period following his resignation and (b) continuing to pay dues for the remainder of the then current contract term, the award transgressed upon disciplined by expulsion from the union, rather than by impairment of membership privileges for having filed a decertification petition The Board sustained the complaint simply on the authority of McGraw Edison without further elaboration In the Los Angeles Paper Handlers case the findings on which the General Counsel relies were those of a Trial Examiner that were adopted by the Board pro forma in the absence of exceptions For that reason alone the cited case cannot be regarded as binding precedent Moreover that case was concerned with a situation clearly different from the one here There the employee who was threatened by his local union with discharge for nonpayment of dues had been wrongfully deprived of good standing membership by that union in violation of its own constitution, and the local union had refused to obey a directive of its international to restore him to good standing The dues delinquency of the affected employee in that case was thus intrinsically tied to the local s unlawful disciplinary action In the instant case in contrast the disciplinary action taken against Waddell was admittedly legitimate In addition the dues delinquency for which the arbitrator found Waddell to be contractually subject to discharge was entirely disassociated from the internal union disciplinary action taken against him It is further to be observed that in each of the three cited cases, the affected employee refused to pay dues precisely because of the depravation of membership privileges that had been imposed on him As the facts found above show that was not so in the case of Waddell 14 Machinists Local Lodge 504 (Arrow Development Co) 185 NLRB No 22 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Waddell's statutory rights in such a manner and to such a degree as to render his entire decision and award abhorrent to statutory policy I am unable to agree In the circumstances of this case, I think it would be an anomaly to hold that, while an award containing an unqualified discharge direction would have satisfied the Board's discretionary standards for withholding the exer- cise of its jurisdiction, a different conclusion is required simply because the arbitrator offered Waddell the privilege of electing, if he so desired, an alternative to discharge, having a far less severe impact on him As found above, that privilege was offered Waddell without any instigation from the Respondent which had pressed only for Wad- dell's unconditional discharge It was devised by the arbitrator for the benefit of Waddell because of the arbitrator's expressed belief that "special circumstances in this case" made it equitable that "Waddell should be given an opportunity to remedy the situation" which the arbitrator found had been created by Waddell and, under the contract, called for his discharge There is nothing in the statute to suggest that, in the absence of unlawful coercion, it is against statutory policy for an employee to pay dues to a union when he is not required to do so by the terms of a union-security agreement It is quite true that the arbitrator, in fashioning his remedial order, could reasonably anticipate that Waddell, given the chance, would take advantage of the option accorded him for escaping the discharge penalty But I do not think that the alternative to discharge offered Waddell must therefore be regarded, in law, as a coerced one Here Waddell was not being threatened, if he did not exercise the option allowed him, with the loss of a job he would otherwise have been entitled to retain For the arbitrator had already deter- mined in his decision that Waddell's continued occupancy of his job was in violation of the contract, as Westinghouse should have honored the Respondent's request for his discharge 2 years earlier If Westinghouse during the grievance proceedings had acknowledged that Waddell's discharge was contractually required, but, to avoid that consequence, had at Waddell's request presented to the Respondent, and the Respondent had then agreed to, a proposal for the adjustment of the grievance on terms similar to those provided for in the arbitrator's award, I doubt that such a grievance adjustment, consented to by all parties concerned, could reasonably be viewed as offensive to statutory policy As I see it, the alternative to discharge which the arbitrator's award offered Waddell, subject to the latter's acceptance, although initiated by the arbitrator rather than by Waddell, stands in the same legal posture 15 In concluding that the Board in the exercise of its discretion should not disturb the arbitrator's award, I have also given weight to the fact that the arbitrator has supported his remedial order on a rational basis related to the contractual violation that he found, and that, insofar as the award now conditions Waddell's future retention of his employment on his continued payment of dues, it is not open ended, but is limited in its duration to the term of the current contract Were this not so, it might well be that the exercise of discretion might call for a different conclusion, but that is a question on which I need not pass in this case In sum, I find that under the facts and circumstances herein the statutory purpose and national labor policy of encouraging the final settlement of disputes through agreed-upon methods, as part of the collective-bargaining process, would best be effectuated by the Board's respect- ing the arbitrator's award and dismissing the complaint in its entirety CONCLUSIONS OF LAW I The Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Respondent is a labor organization within the meaning of Section 2(5) of the Act 3 It would not effectuate the purposes and policies of the Act for the Board to assert jurisdiction with respect to the complaint in this proceeding RECOMMENDED ORDER It is recommended that the complaint herein be dismissed in its entirety 15 The Respondents and Westinghouse s consent must of course be arbitrator implied from their agreement to leave the question of remedy to the