Columbia Typographical Union No. 101

COLUMBIA TYPOGRAPHICAL UNION NO. 101 27 Columbia Typographical Union No. 101 ; International Typographical Union of North America, AFL-CIO (Byron S. Adams Printing, Inc.) and William H. Culpepper. Case 5-CB-1210 October 10, 1974 ORDER DENYING MOTION FOR RECONSIDERATION By CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On December 12, 1973, the National Labor Rela- tions Board issued its Decision in the above-cap- tioned proceeding' wherein it dismissed the com- plaint and deferred to the parties' contractual griev- ance-arbitration machinery in accordance with the governing principles of Collyer,2 Houston Chronicle,' and related cases, subject to reservation of appropri- ate jurisdiction. On January 11, 1974, the Charging Party filed a motion for reconsideration where it moved the Board to reconsider, in banc, the panel- issued Decision herein,4 to vacate that Decision, and to render a decision on the merits favorable to its position because, inter alia, Respondent Union has not "chosen to invoke the grievance procedure or ar- bitration in defense of its challenged conduct . . . [either] prior to or since the Board order in this case ... . " Thereafter, Respondent filed a response to the Charging Party's motion wherein it agreed to par- ticipate in the contractual grievance and arbitration procedure "when and if the Charging Party makes an appropriate demand for arbitration .. , ." The substance of the Charging Party's argument is that the responsibility for initiating grievance or arbi- tration action rests upon Respondent, and that Respondent's failure to take such action has voided the substantive provisions of the decision rendered herein, thereby leaving the Charging Party without remedy absent Board resolution of the dispute. We find no merit in this argument. It seems axiomatic that the party accused of caus- ing a grievance is not going to file a grievance against itself, and that unless the aggrieved party initiates ' 207 NLRB 850 (1973). 2 Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971). 3 Houston Mailers Union No. 36, a/w International Mailers Union (Houston Chronicle Publishing Company), 199 NLRB 804 (1972). 4 It is Board policy for the same panel which renders a decision in a case to pass upon any motion for reconsideration of a panel decision , and for the full Board to consider such a motion only if the panel refers it to the full Board . Enterprise Industrial Piping Company, 118 NLRB 1 ( 1957). The panel has not referred such motion to the full Board . Accordingly , we deny the Charging Party's motion to have the full Board reconsider the panel-issued Decision herein. grievance action, there is no grievance susceptible of resolution and hence, no necessity for a remedy. The responsibility for initiating grievance action, there- fore,. if resolution thereof is desired, rests upon the aggrieved party, the Charging Party, and not upon Respondent, which has no. grievance and which, moreover, has indicated a willingness to arbitrate the matter. In these circumstances, it is difficult to per- ceive how Respondent's failure to initiate grievance action is in derogation of our decision. A remedy, moreover, is available to the Charging Party other than by Board resolution of the dispute. The Charging Party simply needs to initiate action pursuant to the contractual grievance and arbitration procedure.' By electing not to do so, it not only has deprived itself of an available remedial process, but it also is attempting to do by indirection that which it could not do directly; namely, have the Board initial- ly determine the dispute. Accordingly, we shall deny the Charging Party's motion for reconsideration. ORDER It is hereby ordered that the Charging Party's mo- tion for reconsideration be, and it hereby is, denied. However, we shall retain jurisdiction for the limited purpose of entertaining appropriate and timely mo- tions for further consideration upon a proper show- ing either (a) that the dispute has not been resolved with reasonable promptness after the issuance of this Order denying the Charging Party's motion for re- consideration by amicable settlement in the griev- ance procedure or has not been submitted promptly to arbitration, or (b) that the grievance or arbitration procedures have not been fair or regular or have reached a result which is repugnant to the Act. MEMBER JENKINS, dissenting: After the Board had previously deferred this case to arbitration under Collyer and Houston Chronicle, and over my dissent, a month then elapsed with nei- ther the Union nor the Employer seeking arbitration. Culpepper, the foreman and Charging Party who as- serts he was wrongfully discharged in violation of Section 8(b)(1)(B), now renews his request that the Board decide his case on the merits. He asserts, cor- rectly I think, that he cannot invoke arbitration. The parties to the arbitration contract have chosen not to 5 Our dissenting colleague asserts that the Charging Party here cannot invoke arbitration. We think it unrealistic to believe that a foreman, whose conduct on behalf of the management of the Company has given rise to the allegedly improper union action complained of here, is not in a position effectively to initiate grievance and arbitration action on behalf of the Com- pany. In any event , since the gravamen of Sec . 8(b)(I)(B) is the restraint or coercion of the employer, and since the employer clearly has a right to seek arbitration but has not, we fail to see what statutory purpose would be served by our insisting upon litigating this matter at this time. 214 NLRB No. 13 28 DECISIONS OF NATIONAL do so, whether for (in the Union's case) satisfaction with the present situation or (in the Employer's case) through distrust of the process, for fear of the results (whether favorable or unfavorable), or for some other reason. Whatever the reason, Collyer has prevented the LABOR RELATIONS BOARD Board from deciding, and has left undecided, what on its face would seem to be a violation of Section 8(b)(1)(B). I continue to regard this as an ill-advised policy and a nonfeasance of our duties as the Agency charged with administering and enforcing this stat- ute.