General American Transportation Corp.

808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General American Transportation Corporation and Perry Soape, Jr. Case 23-CA-5361 March 16, 1977 DECISION AND ORDER On May 15, 1975, Administrative Law Judge Anne F. Schlezinger issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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 her recommended Order. When the hearing opened, Respondent amended its answer and urged as an affirmative defense that the issues raised by the 8(a)(3) and (1) allegations of the complaint be deferred to arbitration in accordance with the policy first enunciated in Collyer Insulated Wire, a Gulf & Western Systems Co., 192 NLRB 837 (1971). In denying Respondent's request for deferral, the Administrative Law Judge relied on several factors including, inter alia, the Charging Party's unwillingness to go to arbitration, the General Counsel's opposition to deferral, uncertainty as to the Union's position on all matters that might be raised by resort to arbitration, and the absence of evidence that the issues raised by the discharge are arbitrable under the contract. Although we agree with the Administrative Law Judge that this case should not be deferred to arbitration, our rejection of deferral is predicated on our longstanding opposition to the policy established by Collyer and its progeny, and is not based merely on the particular circumstances of the instant case. As we pointed out initially in our dissenting opinions in Collyer, and thereafter reiterated in dissenting from the extension of the Collyer policy to cases involving alleged violations of sections of the Act other than Section 8(a)(5), we believe that the Board has a statutory duty to hear and to dispose of unfair labor practices and that the Board cannot abdicate or avoid its duty by seeking to cede its jurisdiction to private tribunals. As we have repeatedly pointed out,2 Section 10(a) of the Act is explicit that the Board's power to prevent unfair labor practices "shall not be I Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), anfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing her findings 2 See our dissenting opinions in Collyer Insulated wire, 192 NLRB 837 228 NLRB No. 102 affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise ...." Such a lack of power in the Board to make the public interest in the vindication of statutory rights "a plaything of private treaty and interpretation" is further underlined by the decision of Congress, reflected in Section 14(c)(1), limiting the extent to which the Board may exercise its discretion to refuse jurisdiction over any "class or category of employers." Moreover, as we observed in our dissenting opinion in McLean Trucking Company, 202 NLRB 710,715-716 (1973): When Congress thought it desirable that the Board defer its statutory duties to arbitration, it knew how to say so clearly, and did so in Section 10(k) of the Act, dealing with jurisdictional disputes. But even in the instance of an explicit prescription of arbitration, the Board's attempt to remit jurisdictional disputes to private tribunals by refusing to decide, as it is now doing in Collyer, was cut short by the Supreme Court. N. L. R.B. v. Radio Engineers Union (CBS), 364 U.S. 573. Thus it seems obvious that Congress wanted no deferral of matters arising under other sections of the Act, and that such deferral has been foreclosed. Aside from the Board's lack of power to subcon- tract to private tribunals the adjudication of rights that arise solely by virtue of our Act, we believe the facts of the instant case convincingly demonstrate why, on practical as well as policy grounds, the Collyer doctrine of deferral has failed. In the first place, as we noted in dissenting from the result reached in National Radio Company, Inc., 198 NLRB 527 (1972), the lead case in which the Collyer majority ordered deferral in the context of an alleged discriminatory discharge in violation of Section 8(a)(3), our Act explicitly protects employees from on-the job discrimination because they have engaged in, or have refrained from engaging in, union activi- ties. The protection thus afforded employees by the Act is clearly an individual, as contrasted with a union or group, right. In the instant case, instead of pursuing arbitration, a route which for a myriad of reasons he concluded would prove futile, Charging Party Soape chose to seek vindication of his statutory rights before the Board. Were we to order deferral in these circumstances, there would be nothing volun- tary about the arbitration to which Charging Party (1971); Southwestern Bell Telephone Company; Madison Square Offset Company, Inc., and Xerographic Reproduction Center, Inc., 212 NLRB 396 (1974); Electronic Reproduction Service, 213 NLRB 758 (1974), among others. Our dissenting colleagues' assertion that the arguments which we have advanced against deferral have been "rejected repeatedly" by the courts is both mistaken and misleading . In this regard, see our dissenting opinion in Roy Robinson, Inc., d/b/a Roy Robinson Chevrolet, 228 NLRB 828 (1977), and cases discussed therein. GENERAL AMERICAN TRANSPORTATION CORP. Soape would be forced. Hence the voluntary nature of arbitration, long trumpeted by the Collyer enthu- siasts as the main reason for deferral, is revealed as a sham in cases , like the instant case, where the charging party is an individual discriminatee seeking to enforce his individual rights. This case is also instructive insofar as it illustrates the uncertainty, indeed the outright confusion, that has attended the efforts of the Collyer advocates to stretch their original justification for deferral to cover nearly every conceivable situation. Thus, as we have had frequent occasion to point out, even had we accepted the rationale for deferral as initially pro- pounded in the Collyer decision, in subsequent cases the Collyer adherents repeatedly ignored record facts that clearly militated against deferral. In so doing, they so blurred the announced guidelines and criteria under which the Collyer policy was to be applied as to make almost any case in which they found a contract and an arbitration clause a likely candidate for deferral.3 As we noted in dissenting from the result reached in Joseph T. Ryerson & Sons, Inc., 199 NLRB 461 (1972), and similar cases, the Collyer adherents, by indicating that they would defer in any case where the contract incorporates sections of the Act and contains an arbitration clause, in effect invited parties to seek to contract themselves out of the Act, thus stripping employees of the protection afforded by the Act. Indeed, the dissenters here point to a vague "no purposes of discrimination" statement in the contract in the instant case as a justification for insulating this Employer's unlawful conduct from the Board's processes. They also assert that because of the existence of this statement in the contract an arbitra- tor "would necessarily have to decide the very issue before the Board." What our colleagues really mean, however, is that if this case were deferred they would presume that the arbitrator decided the statutory issue, and decided it correctly, merely because this type of clause is in the contract. That this is the substance underlying their rhetoric is demonstrated by their assertion that because arbitrators often decide whether "just cause" for a discharge exists, the arbitrator thereby also decides whether the cause was in fact union activity. Logically and in fact, the two issues are not connected at all, and in the classic discriminatory discharge cases are quite separate; "just cause" for discharge may exist (and often exists 3 For a fairly representative Collyer decision demonstrating this tendency see United Aircraft Corporation; 204 NLRB 879 (1973). There the Collyer majority paid lip service to their own stated criteria for deferral, including the principle that deferral is appropriate only when there is a stable and productive bargaining relationship and an absence of employer hostility toward unionism, while ignoring the stark record evidence of the company's unremitting enmity toward unions in general and union stewards in particular. In their dissenting opinion, our colleagues continued to gloss over 809 with respect to perhaps most employees), and may be the pretextual justification for the discharge. But the issue is whether this was the true reason for the discharge, or whether the true reason was union support, and the "just clause" conclusion of an arbitrator does not begin to resolve this. A graphic example of the way the Collyer adherents foster the destruction of statutory protection by allowing pre- textual reasons to justify unlawful discharges oc- curred in Terminal Transport Company, Inc., 185 NLRB 672 (1970), in which two of the Collyer majority accepted an arbitral award that "just cause" existed for the firing because the employee could not disassemble and reassemble a truck transmission, though he told the employer when he was hired he could not do so, and had worked satisfactorily on the job for over a year without this ability. From this standpoint one can readily forgive the Respondent Company the earnestness with which it has urged deferral here. Indeed, a fair sampling of the Collyer decisions reveals an eagerness to defer, the original criteria for deferral notwithstanding, even in cases containing one or more of the several factors which the Administrative Law Judge found to be an impediment to deferral to arbitration in' the instant case. Thus, the Collyer advocates were not loath to order deferral even where an individual charging party had voiced his unwillingness to go to arbitra- tion and his union had indicated its lack of enthusi- asm for his complaint,4 where the facts evidenced employer hostility to an employee because of the employee's performance of his duties as union steward,5 and where there had been a failure to establish that the dispute was cognizable under the contract and that contract arbitration procedures would be applied.6 Given this record, our dissenting colleagues' claim that cases have not been deferred to arbitration "in an indiscriminate manner" has a decidedly hollow ring. Nor can we join our colleagues in findings, and applauding, the Collyer adherents self-styled sensitivi- ty "to the statutory rights of employees in deciding whether to defer and whether to give effect to an arbitration award." As we have taken pains to point out in numerous opinions, it is precisely the statutory rights of employees, and the obligation of this Board to vindicate those rights, which the Collyer advocates have sought to undermine and abrogate. See, in this such typical and glaring inconsistencies between the Collyer doctrine as propounded and as practiced. 4 Great Scott Supermarkets, Inc., 206 NLRB 447 (1973). 5 See, in this regard, United States Postal Service, 210 NLRB 560 (1974), and cases cited therein at 560-561, dissenting opinion. 6 See Urban N. Patman, Inc., 197 NLRB 1222 (1972); Southwestern Bell Telephone Company, 198 NLRB 569 (1972); Radioear Corporation, 199 NLRB 1161(1972); Tyee Construction Co., 202 NLRB 307 (1973) 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD regard, McLean Trucking Co., supra, and cases cited in the dissenting opinion at 714-715. The Collyer adherents cite figures showing that from May 1973 through December 1975 a total of 1,632 cases had been deferred under Collyer. Of those, an arbitration award issued in 473, and 437 were settled short of arbitration. Of those 473 where an award was made, our Regional Offices on request examined 159 (about a third) for compliance with Spielberg standards, revoking deferral in 33 (over 20 per cent) and securing violation-settlement agree- ments in 24 of those. The dissenters cite these figures to establish that their doctrine is a successful and effective means of reducing the Board's workload while preserving statutory rights and voluntary reso- lution of disputes . The message these figures convey to us is a quite different one: half these deferred cases disappeared from view, with no assurance of any kind that any statutory rights involved had received any consideration or protection ; nearly half the remain- der, i.e., about one quarter, were settled short of arbitration, and these probably would have been settled short of appeal to the Board even had they not been deferred ; and of the one quarter which went to arbitration, it was necessary that the Board examine over a third, and over one out of five of the awards examined proved to have flouted the Act. During this same period of time, 80,152 "C" or violation cases were filed with the Board, so the total Collyer deferrals amounted to about 2 percent of our work- load. These figures make it plain to us that Collyer is not assuring protection of statutory rights and that it is costing us some effort in reviewing awards and in determining which cases to defer . The reduction in our workload is insignificant and the sacrifice of statutory protection is substantial. We do not regard this trade-off as compatible with our responsibility to administer and apply the Act. For all of the foregoing reasons, we affirm the Administrative Law Judge's conclusion that deferral is not appropriate.7 Inasmuch as we agree also with the Administrative Law Judge's findings on the merits, we shall direct Respondent to comply with her recommended Remedy and 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 Respondent, General Ameri- can Transportation Corporation, Port Arthur, Texas, 7 In view of Chairman Murphy's agreement with us that deferral is not appropriate in cases such as this, it is apparent that National Radio Company, Inc., 198 NLRB 527 (1972), and cases following it must be and are overruled. its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. CHAIRMAN MURPHY, concurring: I agree with the Administrative Law Judge and with my colleagues, that the substantive issues joined by the pleadings herein-i.e., whether Respondent dis- charged employee Soape because of his union or other protected concerted activities in violation of Section 8(a)(3) and (1) of the Act-are not suitable for deferral to the parties' contractual grievance- arbitration machinery under the principles enunciat- ed in Collyer8 and National Radio.9 I disagree, however, with that portion of their rationale which argues that the Board lacks statutory authority to defer any unfair labor practice allegation to the parties' agreed-upon means of resolution. In my concurring opinion in Roy Robinson Chevro- let,10 issued this day, I expressed my agreement with the threshold holding in Collyer, supra, that the Board has the necessary discretionary authority under the Act to defer to the parties' contractual grievance- arbitration machinery certain unfair labor practice allegations growing out of differences between them as to the interpretation and/or application of their collective-bargaining agreement. I reached this con- clusion substantially for the reasons articulated in Collyer. I also stated, however, that I would not exercise this discretionary authority in every instance where the alleged unfair labor practice might also be a contract violation and where the parties have an agreement calling for binding arbitration of all contract disputes. Rather, I indicated that the Board should stay its processes in favor of the parties' grievance arbitration machinery only in those situa- tions where the dispute is essentially between the contracting parties and where there is no alleged interference with individual employees' basic rights under Section 7 of the Act. Complaints alleging violations of Section 8(a)(5) and 8(b)(3) fall squarely into this category, while complaints alleging viola- tions of Section 8(aX3), (a)(1), (b)(1XA), and (b)(2) clearly do not. As discussed more fully below, in the former category the dispute is principally between the contracting parties-the employer and the union- while in the latter the dispute is between the employee on the one hand and the employer and/or the union on the other. In cases alleging violations of Section 8(aX5) and 8(b)(3), based on conduct assertedly in derogation of the contract, the principal issue is whether the complained-of conduct is permitted by the parties' contract. Such issues are eminently suited to the arbitral process, and resolution of the contract $ Collyer Insulated Wire, 192 NLRB 837 (1971). 9 National Radio Company, Inc., 198 NLRB 527 (1972). 10 Roy Robinson, d/b/a Roy Robinson Chevrolet, 228 NLRB 828. GENERAL AMERICAN TRANSPORTATION CORP. 811 issue by an arbitrator will, as a rule, dispose of the unfair labor practice issue. On the other hand, in cases alleging violations of Section 8(a)(1), (a)(3), (b)(1)(A), and (b)(2), although arguably also involv- ing a contract violation, the determinative issue is not whether the conduct is permitted by the contract, but whether the conduct was unlawfully motivated or whether it otherwise interfered with, restrained, or coerced employees in the exercise of the rights guaranteed them by Section 7 of the Act. In these situations, an arbitrator's resolution of the contract issue will not dispose of the unfair labor practice allegation.11 Nor is the arbitration process suited for resolving employee complaints of discrimination under Section 7. Accordingly, for the reasons dis- cussed below, I find that our decision in National Radio, supra, was an unwise extension of the Collyer deferral policy into an area in which the Board should retain its preeminence. That decision and its progeny must, therefore, be reversed. The distinction which I draw between purely contractual issues which I would defer to arbitration under the Collyer rationale and those which I would not so defer are based upon statutory, as well as policy and practical, considerations. The National Labor Relations Act, as amended, is predicated upon two national policy objectives which the Board is charged with effectuating. These dual statutory purposes are stated in the last paragraph of Section 1 of the Act as follows: It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of com- merce and to mitigate and eliminate these ob- structions when they have occurred by encourag- ing the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organi- zation, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection. In formulating its deferral policy, the majority in Collyer relied upon the first of the above policy objectives; namely, that obstructions to the free flow 11 Contrary to my dissenting colleagues' assertion, I do not question the competence of arbitrators to decide issues involving the interpretation and/or application of collective-bargaining agreements. Rather I question whether arbitration is the most desirable forum in which to decide whether an employee's Sec. 7 rights have been violated. My colleagues state that "the issue most often resolved by arbitrators is that oflust cause for the imposition of discipline, which frequently also requires the arbitrator to decide whether the cause was infact union or concerted activities." (Emphasis supplied.) In cases involving alleged interference with Sec. 7 rights , however, the issue which the Board must always decide is whether the imposition of discipline was motivated by the employee's union or protected concerted activity. And in deciding that issue the Board relies upon its wealth of expertise in of commerce can be eliminated or mitigated "by encouraging the practice and procedure of collective bargaining." The majority concluded, on the facts of that case, that the national policy favoring the practice and procedure of collective bargaining is encouraged and fostered by requiring the parties to the collective-bargaining agreement to resolve their differences with respect to the interpretation of such contract by utilizing the procedures established by them for that purpose. I fully agree with that theory where, as in Collyer and in Roy Robinson Chevrolet, supra, the underlying issue raised by the parties, in a context free from mutual enmity, is whether the employer's unilateral changes in working conditions were permissible under the contract. Resolution of that issue depends upon an interpretation of the bargaining agreement. And, while I believe that the Board, too, is competent to interpret and apply such agreement,12 I find no compelling reason for doing so where the parties themselves have contractually opted for a method of resolving such disputes. In neither of the above-cited cases was it alleged that the employer's unilateral changes in working conditions were made with an intent to encourage or discourage union activities or otherwise interfered with the employees' individual rights under Section 7 of the Act. Indeed, had such additional allegations been raised in good faith, I would not have deemed the cases appropriate for deferral to the parties' griev- ance-arbitration procedures. For, in addition to the statutory policy relied on by the Collyer majority, Section 1 of the Act states that it is the policy of Congress to eliminate or mitigate obstructions to the free flow of commerce "by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection." In Mastro Plastics Corp.,13 the Supreme Court explained that "[t]he two policies [listed in Section 1 of the Act] are complementary. They depend for their founda- tion upon assurance of `full freedom of association.' Only after that is assured can the parties turn to effective negotiation as a means of maintaining `the normal flow of commerce and . . . the full produc- interpretation Sec. 7 of the Act. See Thomas G. S. Christensen, Private Judges-Public Rights: The Role of Arbitration in the Enforcement of the National Labor Relations Act, in The Future of Labor Arbitration in America, p. 49, et seq. (American Arbitration Association , New York, 1976). Furthermore, arbitrators in fact are not qualified to decide unfair labor practice issues. For such issues must be decided by persons who have been qualified by the Civil Service Commission as hearing examiners under sec. I I of the Administrative Procedures Act, 5 U.S.C. Sec. 557. See also NLRB Rules and Regulations and Statements of Procedure , Series 8, as amended, Secs. 101.10, 101 .11,102.35(j). 12 N. L. R. B. v. C& C Plywood Corporation, 385 U.S. 421 (1%7). 13 Mastro Plastics Corp. v. N.LR.B., 350 U.S. 271,279-280(1956). 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of articles and commodities ....' " (Emphasis in the original.) Since genuine collective bargaining cannot take place until the employees' full freedom of Association is assured, we would do violence to both congressional policies by deferring to the parties' grievance-arbitration machinery a dispute alleging that one of the contracting parties has interfered with the employees' "full freedom of association." The right of employees to full freedom of associa- tion is, after all, the cornerstone of all Section 7 rights and the protection of those rights is the very reason for the Board's existence. Therefore, I believe it would not further the fundamental aims of the National Labor Relations Act to defer to arbitration disputes alleging interference with the employees' Section 7 rights, even though such dispute may also involve an underlying disagreement between the parties as to the meaning and/or application of their contract. Although the rights enumerated in, and guaranteed by, Section 7 of the Act are phrased in terms of individual rights of employees, they have long been recognized as public rights enforceable by governmental rather than private action.14 Interfer- ence with these rights, or employment discrimination intended to encourage or discourage the free exercise of these rights, is an unfair labor practice under Section 8(a)(1) and (3) if committed by an employer, and under Section 8(b)(l)(A) and (2) if committed by a labor organization. Statutory rights, unlike rights created by contract, cannot lawfully be reduced or eliminated either by the employer, the union, or by both.15 By the same token, an allegation that an employee's statutory rights have been invaded by the employer, the union, or by both ought not to be adjudicated by the very party or parties charged with the wrongdoing. To the contrary, Congress having declared that certain labor practices are unfair, entrusted the Board with preeminent authority to prevent such practices. Section 10(a) states: The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in Section 8) affecting commerce. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law or otherwise. Even where a collective-bargaining agreement exists in which the employer and the union have established grievance machinery providing for final resolution of all disputes arising under the contract, such contract cannot lawfully strip the employees of their statutory rights, nor the Board of its obligation to protect these rights.16 As the Supreme Court said in National Licorice Company, supra at 362-363: The proceeding authorized to be taken by the Board under the National Labor Relations Act is not for the adjudication of private rights.... The Board acts in a public capacity to give effect to the declared public policy of the Act. . . . The immediate object of the proceeding is to prevent unfair labor practices which, as deemed by §§ 7, 8, are practices tending to thwart the declared policy of the Act. The dissenters, in arguing for continued deferral to arbitration of all unfair labor practice issues which arguably also involve an underlying contract dispute, rely on the circuit court's opinion in Lodges 700, 743, 1746, International Association of Machinists and Aerospace Workers, AFL-CIO [United Aircraft Cor- poration] v. N.L.KB., 525 F.2d 237 (C.A. 2, 1975). In that case as well as in others cited by the court, the court held that "the Board has wide discretion to `decline to exercise its authority if to do so will serve the fundamental aims of the [National Labor Rela- tions] Act.' " The sole issue before the court was "whether or not it was an abuse of the Board's discretion to determine that deferral to arbitration here furthered the fundamental aims of the NLRA." 17 The court decided that the Board did not abuse its discretion by deferring to arbitration in that case. Contrary to the dissenters' implication, that decision does not stand for the proposition that the Board must defer to arbitration in every case in which an unfair labor practice allegation also entails an underlying contract dispute. To the contrary, the court's approval of the Board's deferral in that case cannot be construed to mean that the court would not have approved a contrary decision if the Board, in the exercise of its experienced judgment, had deemed that deferral in those circumstances would not advance the purposes of the Act. Thus, prior to its adoption of the deferral policy in Collyer, supra, and National Radio, supra, decisions in which I did not participate, the Board steadfastly followed a policy of nondeferral. 18 It is significant that the courts review- ing that policy also found no abuse of discretion by the Board. 19 The dissenters erroneously imply that I disagree with the policy of Spielberg Manufacturing Company, 14 See, e g., Amalgamated Utility Workers, affiliated with Utility Workers 17 Machinists v. N.LR.B., supra, 525 F.2d at 244. Organizing Committee, Congress of Industrial Organizations v. Consolidated 18 See cases cited in Member Brown's concurrence in Collyer. Edison Company of New York, Inc., et al., 309 U S. 261 (1940). 19 See, e g., Thor Power Tool Company, 148 NLRB 1379 (1964), enfd. 351 15 National Licorice Company v. N.LRB, 309 U S 350 (1940). F.2d 584, 587 (C.A 7, 1965); Sieves Sash and Door, Inc., 178 NLRB 154 16 N. L R B v. Magnavox Company of Tennessee, 415 U S 322 (1974) (1969), enfd. 430 F 2d 1364 (C.A. 5, 1970), and cases therein cited. GENERAL AMERICAN TRANSPORTATION CORP. 112 NLRB 1080 (1955). On the contrary, I believe that deferral to an arbitrator's award is appropriate under the Spielberg guidelines where all of the parties, including the affected employee, have voluntarily submitted their dispute to the arbitrators.20 I will not, however, compel an unwilling party to go to arbitra- tion if that party charges that employee Section 7 rights have been violated. There are also compelling policy and practical considerations for declining to defer to the parties' contractual grievance-arbitration machinery any dis- pute which alleges interference with, or discrimina- tion grounded on, an employee's exercise of Section 7 rights. These rights, as stated, are public rights which, in my judgment, must be protected by the Board in its public capacity of giving effect to the declared public policy of the Act. Rights under a collective-bargain- ing agreement, on the other hand, are private rights created by the contract and enforceable under procedures established by the contract for that purpose and by suits under Section 301 of the Labor- Management Relations Act. A dispute as to the meaning and/or applicability of the contract is essentially one between the contracting parties-the employer and the union-in which the employee has virtually no role to play. Thus, an employee who feels aggrieved by some action of the employer can file a grievance under the contract but has no standing to compel the union to process the grievance through arbitration if the grievance is resolved against the employee. Arbitration is a costly process and unions for the most part lack the resources necessary to fully investigate and prosecute to arbitration every griev- ance filed. Indeed, short of a failure to fairly represent, unions have wide discretion in determining which grievances to pursue to arbitration and which to abandon or to trade off in favor of some other advantage. Even where the union proceeds to arbitra- tion on an employee's grievance, the aggrieved employee is but an outsider-a third party-to such proceeding, having no standing to participate as a party, to have counsel different from union counsel, to examine witnesses, or to submit evidence.21 Finally, the arbitrator is generally authorized only to determine the contract issue presented by the griev- ance, i.e., whether the employee engaged in the conduct for which he or she was assertedly disci- plined and whether the contract permitted such 20 Indeed, I would honor an arbitrator's award under the Spielberg guidelines even if the award resulted from deferral by our Regional Offices under the prevailing Collyer policy. 21 Acuff v. United Papermakers and Paperworkers Union, AFL-CIO [Scott Paper Co], 404 F.2d 169 (C.A. 5, 1968), cert. denied 394 U.S. 987 (1969). The sole issue in that case was whether the aggrieved employee had a right to be represented in the grievance proceeding by his own counsel, rather than by the union's counsel . The portion of the decision quoted by the dissenters is, therefore, mere dictum. 813 discipline for that conduct. If the employee claimed that the discipline was in reprisal for having engaged in protected concerted activities under Section 7, the arbitrator either would not or could not reach that issue without exceeding the power given him by the contract. In sum, I shall continue to defer to arbitration those cases involving only contract interpretation issues, as in Roy Robinson Chevrolet. But I shall not defer to arbitration in those cases which involve unfair labor practice allegations affecting individual rights under Section 7 of the Act.22 Since the instant case is of the latter type, being concerned with whether Respon- dent's motive in discharging employee Soape was his union or other protected concerted activities, I find that the matter should not be deferred to arbitration and I agree with my colleagues' finding that Respon- dent violated Section 8(a)(3) and (1) by the said discharge. MEMBERS PENELLO and WALTHER, dissenting: Inasmuch as we believe that this case should be deferred to arbitration under the Collyer doctrine,23 we find it unnecessary to determine whether the Administrative Law Judge correctly decided that the Charging Party, Perry Soape, Jr., was discriminatorily discharged. Respondent and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, For- gers and Helpers (Union) are parties to a collective- bargaining agreement which contains a grievance- arbitration procedure for dealing with "any questions involving the intent, application or interpretation of this agreement ...." Section 7(a) of the agreement provides: In the exercise of the functions of management, the contractor shall have the right to . . . layoff employees because of lack of work or for other legitimate reasons . . . provided, however, that the Contractor will not use these rights for the purposes of discrimination against any employee. On November 20, 1974, Respondent laid off or terminated Soape. The General Counsel contends that Respondent was motivated in this conduct by Soape's union or protected concerted activities. Respondent, on the other hand, alleges that Soape was laid off solely because of lack of work. 22 I note that my colleagues reach different interpretations of the same statistical information concerning cases deferred under the Collyer policy. Inasmuch as these statistics do not differentiate between cases involving alleged violations of Sec. 8(a)(5), in which I would defer, and those involving alleged 8(aX3) violations, in which I shall not defer, they are not significant and are inconclusive at best. In any event , as is often said, statistics tend to support the position of the party offering them. 23 Collyer Insulated Wire, 192 NLRB 837 (1971). 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As an initial defense, Respondent requested that the issue of Soape's discharge should be submitted to the grievance-arbitration procedure of the collective- bargaining contract. The Administrative Law Judge refused to defer, assigning various reasons.24 While the majority members agree that there shall be no deferral, no one bases this refusal on any of the reasons given by the Administrative Law Judge. As we also consider the Administrative Law Judge's reasons invalid, we consider it unnecessary to discuss them. Members Fanning and Jenkins would not defer for the reasons stated in their dissenting opinions in Collyer and repeatedly reiterated since; namely, "that the Board has a statutory duty to hear and to dispose of unfair labor practices and that the Board cannot abdicate or avoid its duty by seeking to cede its jurisdiction to private tribunals." Chairman Murphy does not agree with this lack-of-power theory. On the contrary, she agrees with us, essentially for the reasons set forth in the majority opinion of Collyer, that the Board has discretionary authority under the Act to defer disputes arising under the parties' collective-bargaining agreement to the grievance-ar- bitration machinery established by such agreement. However, she would exercise that discretionary authority only in cases involving alleged violations of Section 8(a)(5) and (bX3). She would not defer cases alleging violations of Section 8(a)(1), (a)(3), (b)(l)(A), and (b)(2).25 Inasmuch as the present case involves an alleged violation of Section 8(a)(3), she would there- fore not defer this case to arbitration. The arguments of Members Fanning and Jenkins against all deferral have been considered and rejected repeatedly by both the Board and the courts.26 We need not take them up again. However, the Chair- man's position needs answering. Collyer involved only an 8(aX5) situation. Nev- ertheless, in his concurring opinion, which reflected his many years of experience in administering the Act as Regional Director and Board Member, Member Brown indicated that the deferral process should be given a broad sweep. He said in words that are extremely relevant (192 NLRB at 845): The deferral policy should be applied to dis- putes covered by the collective-bargaining agree- ment and subject to arbitration whether the disputes involve alleged violations of Section 24 The Administrative Law Judge refused to defer on the following grounds: (1) Soape was unwilling to proceed to arbitration ; (2) the General Counsel is opposed to deferral; (3) Respondent's changing position as to the timeliness of any request for arbitration; (4) lack of evidence as to the Union's position on timeliness and other relevant issues ; (5) the job foreman's resentment of Soape's steward activities after the discharge; and (6) failure to establish that the contract's arbitration procedures were applicable. 8(aX5), (3), or (1) or whether brought by the employer, the union, or an employee. It is incon- sistent with the statutory policy favoring arbitra- tion for the Board to resolve disputes which, while cast as unfair labor practices, essentially involve disputes with respect to the interpretation or application of the contract and which the arbitra- tor can put to rest. That the employer and union are bound by their agreement is fundamental to collective bargaining. I also believe that an employee is bound by the acts of his bargaining agent. If an employee could initiate and repudiate the acts of his duly designated representative at his whim, the statutory objective of fostering voluntary settlements by parties to collective- bargaining agreements cannot be attained. This was not intended by Congress and is contrary to the fundamental purposes of the Act. [Citations omitted.] In National Radio Company, Inc., 198 NLRB 527 (Members Fanning and Jenkins dissenting), the Board extended the Collyer doctrine to a case involving an alleged discriminatory discharge of a union official. The Board explained the reason for this extension as follows (198 NLRB at 531-532): The question whether, in fact, the policies and purposes of the Act will be furthered by absten- tion here and in similar cases is more complex. The crucial determinant is, we believe, the reason- ableness 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 grievances and arbitra- tion procedures have become an integral part of virtually all collective-bargaining contracts in this country. Though arbitration 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 hearten- ing rate. The issue most often resolved by aribtra- tors is that of just cause for the imposition of discipline. 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. Wholly aside from consid- erations arising from the increasing caseload before this five-man Board, we believe the purpos- 25 Roy Robinson Chevrolet, 228 NLRB No. 103 (concurring opinion). 26 Collyer Insulated Wire, supra Roy Robinson Chevrolet, supra The Columbus Printing Pressmen & Assistants' Union No. 252, Subordinate to IP & GCU (R. W. Page Corporation), 219 NLRB 268 (1975); Electronic Reproduc- tion Service Corporation, 213 NLRB 758 (1974); Lodges 700, 743, 1746, International Association of Machinists and Aerospace Workers [United Aircraft Corp.] v. N.LR.B., 525 F.2d 237 (C.A. 2,1975). GENERAL AMERICAN TRANSPORTATION CORP. 815 es 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 strengthened by the experience of mutual reliance on contract procedures. The intervention of this Board, by contrast, can sometimes be an unsettling force. The Board noted two factors which justified its belief that abstention was proper: (1) the parties had had a long-established, stable, and productive bar- gaining relationship; and (2) although the 8(a)(3) allegation subsumed union animus, there was no pattern of action subversive of Section 7 rights. The facts in this case are identical. Following National Radio, the Board has deferred to grievance-arbitration procedures numerous cases involving 8(a)(3) allegations.27 The court of appeals in the United Aircraft case28 specifically approved deferral of such cases under the Collyer doctrine. The court pointed out that there is a strong congressional policy encouraging arbitration of labor disputes. The court cited in support the numerous Supreme Court decisions beginning withLincoln Mills recognizing this congressional policy.29 It approved deferral even though there was evidence of employer hostility to the union as exemplified in a number of Board decisions finding that the employer had engaged in unfair labor practices. Nevertheless, the court said that "antiunion" animus would be a controlling factor only if that animus might prevent successful arbitration of the dispute. The strength of the Federal policy favoring arbitra- tion as a method of settling labor disputes is further illustrated by the case of Gateway Coal Co. v. United Mine Workers of America, 414 U.S. 368 (1974). The collective-bargaining agreement between the union and the employer in that case contained a broad grievance-arbitration procedure for resolving dis- putes between the parties. A dispute arose as to the mine safety matter. The employee left the job seeking to compel the employer to accede to their demands relative to the dispute. The employer offered to arbitrate; the union refused. The employer then sought the aid of the district court to compel the 27 Appalachian Power Company, 198 NLRB 576 (1972); Gary-Hobart Water Corporation, 200 NLRB 647 (1972); Champlin Petroleum Company, 201 NLRB 83 (1973); Jemco, Inc. 203 NLRB 305 (1973); Jack Watkins, G. M. C., 203 NLRB 632 (1973); United Aircraft Corporation (Pratt & Whitney and Hamilton Standard Division), 204 NLRB 879 (1972), 213 NLRB 150 (1974), enfd. 525 F.2d 237 (C.A. 2, 1975); United States Postal Service, 210 NLRB 560 (1974); The Bell Telephone Company of Pennsylvania, 214 NLRB 980 (1974). 28 Lodges 700, 743, 746, International Association of Machinists [United Aircraft Corp] v. N.LR.B., 525 F.2d 237 (C.A. 2,1975). 29 Textile Workers Union ofAmerica v. Lincoln Mills ofAlabama 353 U.S. 448 (1957); United Steelworkers of America v. American Manufacturing Co., union to arbitrate and to enjoin the strike. The district court granted the employer's request. The court of appeals reversed, although conceding that the arbitration clause was broad enough to cover the dispute and that the Federal policy favors arbitration as a method of settling labor disputes. The court reasoned, however, that disputes as to safety matters in a coal mine were sui generis and that, in view of Section 502 of the LMRA,30 the arbitration clause should not be construed to cover such disputes. The Supreme Court in turn reversed the court of appeals, rejecting the latter's argument that an exception to the requirement for arbitration should be made with respect to safety matters. The Supreme Court based its decision on the "federal policy favoring arbitration of labor disputes" which is "firmly grounded in congressional command," quoting Section 203(d) of the Labor Management Relations Act which states in part: Final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settlement of grievance disputes aris- ing over the application or interpretation of an existing collective-bargaining agreement. In the United Aircraft case,31 which as pointed out, involved 8(a)(3) and (1) allegations the court said (525 F.2d at 239): The validity of the Collyer doctrine is no longer seriously in doubt. . . . The Supreme Court has since added further authority to the policy by quoting favorably from the Board's reasoning in the Collyer decision in William E. Arnold Co. v. Carpenters, 417 U.S. 12,16-17 (1974). The Chairman has now substantially emasculated the court-approved Collyer doctrine for reasons which we do not regard as valid. The Chairman says that in cases involving 8(a)(1), (a)(3), (b)(1)(A), and (b)(2) violations an arbitrator's resolution of the contract issue will not dispose of the unfair labor practice allegations and that the arbitration process is not suited for resolving employee complaints of discrimination under Section 7. This is a strange 363 U.S. 564 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593 ( 1960); Gateway Coal Co. v. United Mine Workers ofAmerica, 414 U.S. 368 (1974); cf. William E. Arnold Co. v. Carpenters District Council ofJacksonville and Vicinity, 417 U.S. 12 (1974). 30 In relevant part Sec. 502 provides that "the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees [shall not] be deemed a strike under this Act:' 31 Lodges 700, 743, 746, International Association of Machinists [United Aircraft Corp.] v. N.LRB., 525 F.2d 237. 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD doctrine in view of the Board's experience under Spielberg32 and volumes of arbitrators' decisions. In Spielberg, the Board said that it would accept an arbitrator's award made pursuant to a contract arbitration procedure as dispositive of related unfair labor practices if the awards met certain standards. Pursuant thereto, the Board has in fact dismissed 8(a)(1) and (3) allegations because of Spielberg arbitral awards.33 As to the allegation that the arbitration process is not suited for resolving com- plaints of discrimination under Section 7, this presum- ably means that arbitrators are not competent to decide such issues. With all due respect to the Chairman, we cannot subscribe to this notion. As the Board majority said in National Radio Company, 198 NLRB at 531-532, the issue most often resolved by arbitrators is that of just cause for the imposition of discipline, which frequently also requires the arbitra- tor to decide whether the cause was in fact union or concerted activities 34 Even before Collyer and National Radio, the Board and the courts, including the Supreme Court, ap- proved the arbitral process as a means of resolving disputes which involved violations of sections of the Act other than 8(a)(5) and 8(b)(3). In the Internation- al Harvester case 35 which involved alleged violations of Section 8(a)(3) and (1) and 8(b)(2) and (1)(A) the Board deferred to an arbitration award and overruled a Trial Examiner's (now Administrative Law Judge) decision finding violations. The Board stated (138 NLRB at 926-927): The Act, as has repeatedly been stated, is primarily designed to promote industrial peace and stability by encouraging the practice and procedure of collective bargaining. Experience has demonstrated that collective-bargaining agree- ments that provide for final and binding arbitra- tion of grievance and disputes arising thereunder, "as a substitute for industrial strife," contribute significantly to the attainment of this statutory objective. Approval of the arbitral technique, which has become an effective and expeditious means of resolving labor disputes, finds expres- sion in Section 203(d) of the Labor Management Relations Act, 1947... . * * * If complete effectuation of the Federal policy is to be achieved, we firmly believe that the Board, 32 Spielberg Manufacturing Company, 112 NLRB 1080 (1955). 33 E.g., Electronic Reproduction Service Corporation, 213 NLRB 758 (1974) (Members Fanning and Jenkins dissenting); International Great Lakes Shipping Company, 215 NLRB 701 (1974); Ohio Ferro-Alloys Corporation, 209 NLRB 577 (1974); Adolph Coors Company, 208 NLRB 676 (1974); Gulf States Asphalt Company, 200 NLRB 938 (1972). See also our dissenting opinion in Filmation Associates, Inc., 227 NLRB No. 237 (1977). which is entrusted with the administration of one of the many facets of national labor policy, should give hospitable acceptance to the arbitral process as "part and parcel of the collective bargaining process itself," and voluntarily withhold its un- doubted authority to adjudicate alleged unfair labor practice charges involving the same subject matter, unless it clearly appears that the arbitra- tion proceedings were tainted by fraud, collusion, unfairness, or serious procedural irregularities or that the award was clearly repugnant to the purposes and policies of the Act. Not only was the Board's International Harvester decision affirmed by the court of appeals, it has also been cited and its language quoted with approval by the Supreme Court.36 The Chairman finds justification for thus bifurcat- ing the Collyer doctrine by the language of Section 1 of the Act which says that the policy of the Act is: (1) to encourage the "practice and procedure of collec- tive bargaining," and (2) to protect the "exercise by workers of full freedom of association, self-organiza- tion, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection." Arbitration, the Chairman says, is appropriate to the first objective but not to the second. In support the Chairman cites the Mastro Plastics case.37 In Mastro Plastics, employees struck in protest against employer unfair labor practices which involved violations of Section 8(a)(1), (2), and (3). The employer contended, inter ali4 that the strike was unprotected because in violation of a no-strike clause in an existing collective-bargaining contract. The Supreme Court rejected this claim holding that the no-strike clause did not waive the employees' right to strike against the "flagrant" interference with the employees' protected right to select their own bargaining representative. It was in the light of the "flagrant" unfair labor practices of the employer which were destructive of any collective-bargaining relationship that the court said (350 U.S. at 280): The two policies [set forth in section 1 ] are complementary. They depend for their foundation upon assurance of "full freedom of association." Only after that is assured can the parties turn to effective negotiation as a means of maintaining 34 See our dissenting opinion in Filmation Associates , Inc., supra. 35 International Harvester Company (Indianapolis Works), 138 NLRB 923 (1962), affd. sub nom. Ramsey v. N.LRB., 327 F.2d 784 (C.A. 7, 1964), cert. denied 377 U.S. 1003, rehearing denied 379 U.S. 874. 36 Carey v. Westinghouse, 375 U.S. 261 (1963). 37 Mastro Plastics Corp. v. MGRS., 350 U.S. 270 (1956). GENERAL AMERICAN TRANSPORTATION CORP. "the normal flow of commerce and ... the full production of articles and commodities ...." The present case does not involve any such situation as existed in Mastro Plastics. In no sense can it be said that the aim or result of the discharge of Soape was to destroy the collective-bargaining rela- tionship with the incumbent union. Rather, if there did exist an unlawful motive in Soape's layoff it was the result not of company policy but of an aberration by a minor supervisor. Certainly the Union did not consider that the discharge undermined its position or prestige for it expressed disapproval of Soape's approach to the Board for redress and instead declared that he should file a grievance under the contract.38 The Union was thus upholding the collective-bargaining process by insisting that Soape take up its grievance pursuant to the provisions of the collective-bargaining agreement. In so doing, the Union was affirming.the underlying objective of the labor laws which, as the Supreme Court has stated, is to promote collective-bargaining agreements and to give substance to those agreements through the arbitration process.39 The Chairman also argues that Section 7 rights are public rather than private rights, that Section 10(a) entrusts the Board with exclusive authority to protect those rights, and that a collective-bargaining agree- ment cannot lawfully strip the employees of their statutory rights nor the Board of its obligation to protect those rights. This argument is pretty much the argument which has been repeatedly advanced by Members Fanning and Jenkins, and the conclusion drawn therefrom repeatedly rejected by the Board majority and the courts. To take up the argument piecemeal : no one disputes that Section 7 rights are public rather than private rights and that the Board is charged with protecting those rights in the public interest.40 But the Section 7 public rights of individu- als includes the right "to bargain collectively through representatives of their own choosing," and this right is vindicated by Section 8(a)(5) and 8(b)(3), yet the Chairman is prepared to defer to arbitration cases involving alleged violations of those sections. The reference to Section 10(a) seems to be advanced to justify a conclusion that the Board lacks discretion to 38 On December 27, 1974, a union official wrote Soape: I regret that it is necessary for me to advise you that the avenue you have taken concerning NLRB is entirely out of order since you did not in any way utilize any of the mechanics available to you under our working agreement. And I request that you cease and desist from this course and file your grievance under Article 22 of the NTM agreement . This, of course is your prerogative, but if you insist in maintaining your present position, it will be necessary that I maintain a complete hands-off policy concerning this matter. 39 Carey v. Westinghouse, 375 U.S. 261 (1963); Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers ofAmerica v. Lucas Flour Company, 369 817 defer to arbitration at least some alleged unfair labor practice violations. This seems to be contradictory to the opening paragraphs of the Chairman's concurring opinion in this case and in her concurring opinion in Roy Robinson Chevrolet. Nor is the Board stripping the employees of their statutory rights or repudiating its obligation to protect those rights by deferring suitable cases to arbitration. In National Radio the Board, in rejecting this argument of abdication, said (198 NLRB 531): 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 Federal policy favoring voluntary arbitration and dispute settlement. And by reserving jurisdic- tion we preserve the right of the Charging Party to seek from us vindication of statutory rights should the arbitration reach a result not tolerable under the statute. The Board has not deferred cases to arbitration in an indiscriminate manner, nor has it been insensitive to the statutory rights of employees in deciding whether to defer and whether to give effect to an arbitration award. The standard it has used is reasonable belief that arbitration procedures would resolve the dispute in a manner consistent with the criteria of Spielberg.41 Thus, it has refused to defer where the interests of the union which might be expected to represent the employee filing the unfair labor practice charge are adverse to those of the employee,42 or where the respondent's conduct constitutes a rejection of the principles of collective bargaining.43 And where, after deferral, the respon- dent has refused to proceed to arbitration, the Board U.S. 95 (1962); Local 24, International Brotherhood ofTeamrters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO [A. C. E. Transportation Co.] v. Oliver, 358 U.S. 283, 298 (1959). 40 Phelps Dodge Corp. v. N.L R.B., 313 U.S. 177, 193 ( 1941); National Licorice Co. v. N.L.RB., 309 U.S. 350, 362 (1940); Amalgamated Utility Workers v. Edison Co. of New York, 309 U.S. 261 , 265, 269 ( 1940). 41 National Radio Company, Inc., 198 NLRB 527, 531. 42 Kansas Meat Packers, a Division of Aristo Foods, Inc., 198 NLRB 543 (1972); Jack Watkins, G.M C., 203 NLRB 632 (1973). 43 Joseph T Ryerson & Sons, Inc, 199 NLRB 461 (1972); Mountain State Construction Company, Inc, 203 NLRB 1085 (1973); North Shore Publishing Co, 206 NLRB 42 (1973). 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has rescinded the deferral and decided the case on the merits.44 Finally, if for any reason the arbitrator's award fails to meet the Spielberg standards, as for example, that it is repugnant to the policies of the Act, the Board will not give it effect 45 The Chairman refers to alleged "practical consider- ations" to justify a refusal to defer to arbitration. Thus, she says that "Arbitration is a costly process and unions for the most part lack the resources necessary to fully investigate and prosecute to arbi- tration every grievance filed." There are several answers to this argument . In the first place, if a union has agreed that disputes are to be handled by a specific grievance-arbitration procedure, it is not in a position to complain about costs when it is called upon to live up to its agreement. In the second place, not all unions are poor and unable to defray the costs of arbitration. In the third place, the union involved in this case is not pleading poverty and is not opposed to having Soape's dispute submitted to the contract grievance-arbitration procedure. On the contrary, it has told Soape in no uncertain terms that it should be so submitted. In the fourth place, if a grievance is submitted it may be resolved without ever reaching the arbitration stage.46 The Chairman also complain about the right of a union to represent employees in grievance and arbitration procedures to the exclusion of the employ- ees involved. This complaint is really directed at the nature of the collective-bargaining process itself. The Board, which has the responsibility of fostering collective bargaining, ought not itself undermine that process by permitting the employee to ignore the bargaining representative short of finding that the union is not fairly representing the employee 47 In this case, there is no evidence that the Union is prepared to sacrifice Soape's rights to the benefit of other employees or that it will not fairly represent him. Finally, the Chairman says that an arbitrator is generally authorized to determine only the contract issue presented by the grievance, i.e., whether the employee engaged in the conduct for which he was disciplined and whether the contract permitted such discipline, but could not decide whether the disci- pline, if so claimed, was in reprisal for having " Gary-Hobart Water Corporation, 210 NLRB 742 (1974); Medical Manors, Inc, d/b/a Community Convalescent Hospital and Community Convalescent East, 206 NLRB 962 (1973). 4' Radio Television Technical School, Inc. t/a Ryder Technical Institute, 199 NLRB 570 (1972); Drers & Knapp Manufacturing, Inc., 221 NLRB 309 (1975) (Member Penello's concumng opinion), enfd. 544 F.2d 320(C.A. 7, 1976). 48 As indicated hereinafter, in a substantial number of the cases deferred by the Board's Regional Directors, resolution of the dispute occurs without the necessity of proceeding to arbitration. 4T In Acuff v. United Papermakers and Paperworkers Union, AFL-CIO, 404 F.2d 169 (C.A. 5, 1969), cited by the Chairman, the court denied a motion by employees who had been discharged to intervene in a suit brought engaged in protected concerted activities. Whatever the validity of this argument as a general proposition, it has no application to the present case, for the collective-bargaining contract in this case in listing the causes for "proper discharge" contains the following proviso: ... the Contractor will not use these rights for the purposes of discrimination against any em- ployee. Under the proviso the arbitrator in deciding the contract issue would necessarily have to decide the very issue before the Board, i.e., whether Soape was discriminated against for impermissible reasons. In an unpublished Board study of the effect of Collyer over a 2-1/2-year period, from May 1973 through December 31, 1975, a total of 1,632 cases had been deferred by the Board's Regional Offices under Collyer. Arbitrators' decisions issued in 473 of these cases. Of these 473 decisions, the Regions scrutinized 159 at the request of the charging parties in light of the Spielberg standards. On 33 occasions, the Regions revoked the Collyer deferrals either because the respondents refused to proceed to arbitration or the arbitration awards were deficient under the Spielberg standards. In 24 of these 33 instances, issuance of a complaint was made unnecessary by the respondent's signing of a settlement agreement . Further, of the 1,632 deferred cases, 437 were settled through the contract grievance procedure without the need of proceeding to arbitration. The study concludes: As between processing a dispute as a grievance vis-a-vis an unfair labor practice, the evidence that 437 cases were subsequently adjusted by the parties, themselves, following deferral by the Regional Office suggests that Collyer has forced the parties to rely less on the NLRB and more on collective bargaining via the contractual grievance machinery to settle certain disputes. Moreover, this same evidence indicates that there is a 50/50 chance of resolving the dispute short of arbitra- tion. When it is necessary to arbitrate, however, the data indicates that arbitration, much like Board litigation, is a victim of delay. by the bargaining representative to compel arbitration of the discharges. The court said: The issue in this case is fundamental , yet simple. In order to effectuate the purposes of the labor statutes employees are empowered to organize. This, of course, has resulted in enormous benefits but entails certain burdens as well. One of these is that to some extent the interests of particular individuals are subordinated to the interests of the group both at the contract negotiation stage and thereafter.... This is necessary if a union is to function efficiently. As a result, a union may properly determine not to pursue a member's grievance to the arbitra- tion stage at all . [404 F.2d at 171.] GENERAL AMERICAN TRANSPORTATION CORP. 819 Relevant to the problem of deferral are the Board's own statistics as to elapsed time from the time of deferral to the time of the issuance of the arbitrator's decision. According to the study previously men- tioned, the median time for the issuance of an arbitration decision following deferral by the Region- al Office is 140 days. In comparison, the elapsed time from the issuance of a complaint by the Regional Office to the issuance of a decision by the Board is approximately twice as long. The statistics by this Agency indicate that Collyer works, that it has encouraged the use of contract grievance-arbitration procedures and thus encour- aged collective bargaining itself, that it has speeded up the disposition of some disputes, that it has resulted in the settlement of many disputes at the early stages of grievance procedures making arbitra- tion unnecessary, and that it has lightened the workload of the Board.48 The reasons advanced by the Chairman for cutting back the Collyer doctrine are no more persuasive than those advanced by Members Fanning and Jenkins, as we have shown. Accordingly, we dissent. 48 In citing the deferral statistics to show, in their view, that Collyer has failed because it has not significantly reduced the Board 's caseload, Members Fanning and Jenkins confuse an incidental benefit of deferral (caseload reduction) with the purpose of deferral (collective-bargaining encouragement). Deferral requires parties (including individuals who are bound by the acts of their bargaining agent) to abide by their agreement to settle their disputes themselves through the collective-bargaining process. The statistics show that of 1,632 cases deferral has been revoked in only 33 cases, or 2 percent of the time . Thus, deferral has had a 98-percent success rate in achieving its purpose . And these figures do not reflect those disputes which the parties, looking to Collyer, have settled themselves without resort to the Board . We think that deferral has had a significant and beneficial impact in furthering the major purpose of the Act, to encourage the practice and procedure of collective bargaining. the opening of the hearing, Respondent amended its answer to urge as an affirmative defense that the issues in this case should be deferred to arbitration in accord with the Board's Collyer2 policy and the provisions of Respondent's collec- tive-bargaining agreement with International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, referred to herein as the Union. Pursuant to notice, a hearing was held before me at Port Arthur, Texas, on February 13, 1975. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evidence. At the close of the hearing, the parties waived closing argument. Subsequent to the hear- ing, the General Counsel filed a memorandum and Respon- dent filed a brief on or about March 25, 1975, which have been fully considered. Upon the entire record in this case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is, and at all times material herein has been, a corporation duly organized under, and existing by virtue of, the laws of the State of New York. It is engaged, at plants located in Pennsylvania, Georgia, Indiana, Califor- nia, and at Hearne and Orange, Texas, and at various jobsites in Texas, in the manufacture and repair of railway tank cars and oil storage tanks. During the preceding 12 months, a representative period, Respondent purchased goods and materials in excess of $50,000 from points outside the State of Texas, which were shipped directly to its facilities in Texas. The complaint alleges, Respondent in its answer admits, and I find, that Respondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. DECISION STATEMENT OF THE CASE ANNE F. SCHLEZINGER, Administrative Law Judge: Upon a charge filed on November 22, 1974,1 by Perry Soape, Jr., an Individual, referred to herein as Soape or the Charging Party, the General Counsel, by the Regional Director for Region 23 (Houston, Texas), issued a complaint and notice of hearing on December 31. The complaint alleges in substance that General American Transportation Corpora- tion, herein called Respondent, laid off the Charging Party on or about November 20, and has since then failed and refused to reinstate him, because of his union and protected concerted activities, and thereby engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the National Labor Relations Act. Respondent, in its answer duly filed, admits some of the factual allegations of the complaint, including the allega- tion that it laid off the Charging Party on November 20, but denies that the layoff constitutes a violation of the Act. At II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, Respondent in its answer admits, and I find, that International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, is, and at all times material herein has been, a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues The General Counsel contends that Soape was terminat- ed by Respondent on or about November 20 because of certain union and protected concerted activities. Respondent in its answer admits the allegation that Soape was laid off on or about November 20, but maintained at the hearing that he was laid off for lack of work and was transferred from one project of Respondent to another for lawful reasons. The answer also admits the allegations that McMurray, job foreman, Sidney Johnson, regional manager, and Sierra, industrial relations director, I All dates hereinafter refer to 1974 unless otherwise indicated. z Collyer Insulated Wire, a Gulf and Western Systems Co. 192 NLRB 837 (1971). 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are supervisors and agents of Respondent within the meaning of Section 2(11) of the Act. Respondent at the hearing amended its answer to urge as an affirmative defense that the issues herein should be deferred to the contractual arbitration procedures in accord with the Board's Collyer policy. The General Counsel opposed the motion to defer. The Union did not appear at the hearing. B. The Deferral Issues Respondent is one of a number of employers who are signatory to a series of 2-year agreements with the Union's National Transient Members unit, referred to as NTM, covering employment on tank construction projects. Jeff Johnson is an NTM International representative with jurisdiction over four States . To assist him in covering this geographical area, he has appointed individuals referred to as area stewards, one of whom was Soape, who has been a member of the NTM unit about 4 years. At the opening of the hearing, Respondent amended its answer, which made no reference to Collyer, and urged that, to comply with Collyer, "the Complaint must be withdrawn and the substance of the Charge and Complaint must be deferred for resolution in accordance with grievance and arbitration provisions" of the agreement between Respon- dent and the Union, and that "deferral of the Charge to the contractual grievance and arbitration procedure is reason- ably likely to resolve the unfair labor practice issue raised by the Charge." The General Counsel opposed deferral on the grounds that the Charging Party "has indicated an unwillingness on his own initiative" to withdraw the charge and proceed under the contract provisions; that as Respon- dent, during the investigation in this case, asserted its unwillingness to waive the timeliness requirements, the complaint was issued; and that the General Counsel who had, prior to the hearing, explored the Collyer question with Respondent, would not withdraw the complaint, and urged that the hearing proceed on the merits of the case. The Administrative Law Judge, after hearing argument, direct- ed counsel to present evidence on Collyer and the other issues which would be resolved on the basis of the entire record. The parties accordingly presented their evidence, Respondent renewed its request for deferral during the hearing and in its brief, and the General Counsel at the hearing and in its brief continued to oppose deferral. Respondent introduced into evidence a letter from Respondent's counsel to counsel for the General Counsel dated February 6, 1975, stating as follows: This will confirm our telephone conversation of this date during which I advised you that Respondent . . . is presently willing, and will be for a reasonable period of time, to arbitrate the claim of Mr. Soape in accordance with the Collective Bargaining Agreement . . . Further- more, the Respondent will not raise timeliness defenses in an arbitration proceeding with regard to this matter. It is my understanding that there is some question as to whether the Charging Party acquiesces in having his claim submitted to arbitration, and that the basis for his failure to acquiesce is that he does not believe there is any provision of the Collective Bargaining Agreement which covers his claim. If this is the basis for the Charging Party's failure to acquiesce, it is clearly based on a misunderstanding or misinterpretation by him. The Contract, in Article 22, clearly provides for final and binding arbitration of disputes concerning the interpretation and application of any provision of the Agreement. Section 7(a) specifically provides for layoff for lack of work. Mr. Soape was laid off for lack of work. If he was improperly laid off for lack of work or for discriminatory reasons, that dispute is clearly cognizable in arbitration. It is my hope that the Region will administratively withdraw the complaint in this case, and defer the matter to arbitration in accordance with Arbitration Deferral Policy Under Collyer, issued by the General Counsel on May 9, 1973. If the complaint is not withdrawn and deferral not undertaken by the Region, it is my intention to amend the Respondent's answer in this case to affirmatively allege as a defense the fact that this case must be deferred to arbitration in accordance with the parties' Collective Bargaining Agreement. Respondent also introduced into evidence the agreement that became effective on January 1, 1971, for 2 years, and stated that it did not have available the agreement that went into effect on January 1, 1973, covering the period of the events here in issue. The General Counsel and Respondent stipulated, however, that paragraphs 7(a) and 22(b) con- tained the same language in both agreements. Paragraph 7(a) provides as follows: In the exercise of its functions of management, the Contractor shall have the right to plan, direct and control the operation of all its work, hire employees, direct the working forces in the field , assign employees to their jobs, discharge, suspend, or discipline for proper cause (proper causes for discharge include but are not necessarily limited to drunkenness, incompetence, lazi- ness, insubordination, habitual tardiness or absentee- ism), transfer, promote or demote employees, lay off employees because of lack of work, or for other legitimate reasons, require employees to observe the Contractor's rules and regulations not inconsistent with this agreement, regulate the use of all equipment and other property of the Contractor, decide the amount of equipment used, the number of men needed, and shall be free to contract work anywhere and shall decide the methods of erection and the source from which material and equipment are obtained , provided, however, that the Contractor will not use these rights for the purpose of discrimination against any employee. Paragraph 22(b), read into the record by Soape on cross- examination by Respondent, states that "Any questions involving the intent, application or interpretation of this agreement shall be referred to the joint chairmen for decision." Asked then whether, if the joint chairmen cannot agree, they select a neutral chairman who is an arbitrator, Soape answered that he believed that was right. Other subsections in article 22 of the 1971-73 agreement in evidence, which counsel for Respondent asserted and Soape testified are substantially the same in the 1973-75 agreement, provide that a grievance must be filed within 30 GENERAL AMERICAN TRANSPORTATION CORP. days; that if it is not settled at the job foreman level, it will be submitted to the headquarters of the contractor and the Union; that if not settled at that level, it shall be referred to the chairmen of the negotiating committees ; that in the event any matter referred to the two chairmen is not settled within 7 days, the dispute will be submitted in writing by the Union or the contractor or both to an arbitration committee consisting of the two chairmen and a third member to be chosen by them or, if they cannot agree, shall request selection of a third member by the Federal Mediation and Conciliation Service; and that "Any griev- ance must be submitted in writing to the other party within thirty (30) calendar days of occurrence or it will be considered closed." Counsel for Respondent asserted at the hearing that "the only issue in dispute concerning Collyer in this case is .the individual Charging Party's willingness" to submit this matter to arbitration.3 Soape maintained that he did not follow the contract procedures because he studied the contract, with which his union duties had made him familiar, and was convinced the contract did not cover the issues involved in his discharge , and that he discussed this on the telephone shortly after his discharge with Jeff Johnson, who advised him that the contract did not cover his case. Soape also testified, on cross-examination, that he received a letter from Lewis, the NTM director to whom Jeff Johnson reports, which he read into the record as follows: I regret that it is necessary for me to advise you that the avenue you have taken concerning NLRB is entirely out of order since you did not in any way utilize any of the mechanics available to you under our working agreement. And I request that you cease and desist from this course and file your grievance under Article 22 of the NTM agreement. This, of course, is your prerogative, but if you insist in maintaining your present position, it will be necessary that I maintain a complete hands-off policy concerning this matter. Soape testified that he received this letter, which is dated December 27, after expiration of the 30-day period for filing a grievance. Soape testified further, on cross-examina- tion, that he was still of the opinion the contract did not cover the circumstances of his discharge . Asked if he would file a grievance if Respondent waived the 30-day require- ment or if "it were to be held by an appropriate tribunal that the Collective Bargaining Agreement does, in fact, cover your discharge," Soape replied that he would not. At another point, counsel for Respondent stated: "We don't deny Mr. Soape was an area steward. The point in reference . . . is there is no provision for area steward, but only for job steward, and that is the only person who is allowed specifically by the contract to take more time for the adjustment of grievances." In my opinion, Respondent's request for deferral should be, and hereby is, denied in all the circumstances of this case, including the Charging Party's unwillingness to 3 In its brief, however, Respondent argues that deferral is not solely dependent on the Charging Party's willingness to submit the matter to arbitration. 821 proceed to arbitration; the General Counsel's opposition to deferral; Respondent's changing position as to the timeli- ness issue; the lack of evidence as to the Union's position on timeliness and other relevant issues; the uncontradicted evidence as to the job foreman's resentment of Soape's area steward activities after the discharge; and the failure to establish that the contractual arbitration procedures were applicable, and would be applied by Respondent and the Union, to the issues involved in Soape's discharge.4 C. The Discharge Issues 1. Soape's hire by McMurray The General Counsel called as witnesses Soape and three men who had worked at the same project, Fisher, Rober- son, and Bickham. Respondent called as its witnesses Sidney Johnson, regional manager, and McMurray, job foreman. Soape, a member of the NTM unit about 4 years, had been a job steward on several jobs, and for about a year was an NTM area steward for Southeast Texas. Jeff Johnson, an NTM International fepresentative for four States, had appointed Soape and others to assist him in covering this geographical area. In August Soape, who was working then for another employer, visited the Fina jobsite of Respon- dent in Port Arthur on union business. He testified that, during a conversation there with McMurray, the job foreman, McMurray said he needed a man to do chipping as Morgan, the man who had been doing it, was in jail at the time; that he told McMurray he did this kind of work; that McMurray offered to pay a good chipper $7.80 an hour plus $6 a day subsistence, plus a wage compensation plan providing 12 hours' pay for 8 hours of chipping if he met certain work standards; that they also discussed Soape's duties as area steward which might require him to be away from work occasionally, and "I told him I would clear it with him and I would . . . not leave when any chipping needed to be done out there"; that the job was offered to and accepted by him; and that he gave his employer notice and reported to work at the Fina project on Monday, August 26. McMurray testified that, in his original conversation with Soape, "I don't remember if I brought up the deal or whether he asked me did I need any men. One way or the other, I told him I needed a chipper. Well, he told me he was the chipper . . . And he was thinking about - I don't know if he told me the job was near complete or he, you know, wanted to get close to home. I don't remember." McMurray also testified that he hired Soape "Not that day. I don't know if it was the next night or not. It was one night, he called me and asked me was the job still open, and I told him it was. I don't remember if it was the following Monday he came out or if it was through the week. I don't remember, but I did hire him more or less over the telephone at that time." Asked about the date of hire, McMurray replied, "I don't know if I remember the exact date or not. I believe it was somewhere around August 6 or the 16th, I believe. Asked then if it was on Monday, August 4 See N.L B.B v. Chase Manufacturing Company, 492 F.2d 1300 (C.A. 7, 1974). 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 26, he replied, "Probably was." McMurray testified that an employee, Morgan, had worked for Respondent many years, traveled with McMurray's group from site to site, and was the regular chipper at the Fins job ; that he did not know whether Morgan was in jail at that time or if he learned later that Morgan was in jail, but Morgan took some time off and then went to jail for 3 or 4 weeks; and that he hired Soape because of Morgan's absence and because he was going to need two chippers on this job. McMurray also testified that "I told him [Soapel when I had one chipper chipping I paid him 12 hours a day for 8 hours' worktime. And there would be times when he would have to work in the gang," and would receive incentive pay based on the hours spent chipping. McMurray testified at one point that it was not proper, according to company policy, to compensate chippers that way, then that "It's more or less, I'd say, up to the foreman," that he had never been instructed not to give 12 hours' pay for 8 hours' work on chipping "because chipping is a hard job and it takes a good man to chip and keep up with the automatics, and we never had any arguments on what we did pay our chippers." Soape admitted that whether the chipper earned the extra pay "is in the discretion of the foreman proba- bly.-5 2. Soape's Corpus Christi trip Soape testified that he had taken off a total of about 3 days on union business and had notified McMurray each time; that he received a letter from Lewis, NTM director, dated October 11, asking him to attend, as an observer, the area contract negotiations in Corpus Christi, Texas, in November, which Jeff Johnson had told Soape about previously; 6 that he notified McMurray of this weeks in advance and reminded him of it from time to time ; and that McMurray gave him permission to go . Soape had planned to leave on Monday, November 11. Jeff Johnson called on Sunday, November 10, from the Houston airport, and asked Soape to go with him that day so they could discuss on the trip certain grievances pending against different employers in the area. Soape testified that he was reluctant to telephone McMurray at home on Sunday evening about this, and preferred to call someone he knew personally and transmit the message that way. He called Roberson, his job steward, and asked Roberson to tell McMurray on Monday morning that Soape had to leave a day earlier than planned because he was asked to do so by Jeff Johnson. Soape then departed on Sunday. Soape received a telephone call from Roberson on Monday evening in which, he testified, Roberson reported that he had transmitted Soape's message that morning to McMurray, that McMurray said Soape was taking too much time off for union business and would have to be replaced, and that McMurray thereupon hired Bickham, who was there applying for a job, to replace Soape. S Soape indicated he received this extra compensation virtually every day of his employment at the Fma project . The record indicates, however, that on some days he did not chip or did it part of the time . The record does not show the number of days or hours for which he received this incentive pay. 6 Soape's testimony at first indicated that he went to Corpus Christi as one of the negotiators, but further questioning developed that he went as an observer. Roberson, who is still employed at the Fina project, testified that Soape "called me one Sunday afternoon and he said Jeff Johnson had called him and wanted him to go to Corpus Christi a day earlier for negotiations and asked me if I would tell Mr. McMurray, Monday morning. And I told him I would." He testified further that on Monday morning: "I sat down in the back of the truck and Mr. Bickham was standing there talking to Mr . McMurray, and I interrupted and I said, `Charley,' I said,'Soape called me yesterday afternoon and told me, asked me if I would tell you that he wouldn't be out Monday, and he would be back probably the latter part of the week.' Mr. Bickham had asked Mr. McMurray for a job and he told him he didn't need anybody. And the conversation went on . And when I told him this, he said, 'Every time I need Soape, Soape is gone on union business.' And he said, 'I will hire this guy right here in his place.' " Roberson also testified that, after McMurray had said he did not need anyone at the time, Bickham stated that McMurray had "too many NTM men on the job" and needed "to hire some local boilermakers," 7 that "Then, when I told Mr. McMurray what Soape had asked me to tell him" McMurray said he would hire Bickham "in Soape's place because Soape was gone on union business too much." Bickham, who has been a member of the Union Local in that area over 4 years, testified that he went to the jobsite on the Monday morning in question and: "I asked Mr. McMurray for a job and I had a work order which they give you when you hire out of your local, and told him I needed a job welding. And he told me he didn't need any welders. So, I told him, 'Well, I can do anything. I work tanks.' .. . He told me again that he didn't think he could use me at that time. Well, in the meantime, we were still talking and Richard Roberson walked up and told him that Mr. Soape wouldn't be in because he had to go to Corpus Christi, that he wouldn't be in that week.... And Mr. McMurray said, 'Well, if Soape has more union business to attend to than he has on the job, I will just hire you in his place.' And I went to my car and got my gear and I was hired that morning." Bickham also testified that he voluntarily quit that job after a few weeks, that he quits jobs frequently, and that he was at the time of the hearing working for another employer in East Texas. McMurray testified that he was upset about Soape's trip to Corpus Christi because he had not been given notice. He explained that "I hadn't been directly told that he was going"; that several weeks in advance, while they were "yakking" at work, Soape "said him and Sid [sic] were going to Corpus and do a little fishing' ; that, as far as he could remember, that was the only reference Soape made to this trip; that Soape never told him when he was going; that "I believe he said they would be fishing for a week.... In fact, I thought he was joking"; that the conversation with Roberson on Monday, November 11, was the first official notice he received that Soape would not be at work that r The contract required that Respondent maintain a hiring ratio between members of the Union Local and of NTM, but permitted it, if the Local did not have men available, to hire more NTM men. McMurray, who testified he preferred NTM men as he found them to be better workers , called the Local office at one point, was told it had no men available and he could hire whomever he wished, and had since then hired NTM men without checking again with the Local. GENERAL AMERICAN TRANSPORTATION CORP. week; and that he forgot at that time the remarks about going fishing with Sidney Johnson but "I thought later on that must have been what he meant . But as far as official notice, I never did get one." 3. Soape's complaint to OSHA On the Friday before Soape left for Corpus Christi, he called the local OSHA8 office and complained about certain conditions at the jobsite which , he testified, he had previously taken up with McMurray. On Tuesday, Novem- ber 12, while Soape was in Corpus Christi, OSHA came to the jobsite to investigate, cited Respondent for the condi- tions referred to by Soape as well as others found by the investigators, and ordered that they be corrected, some immediately and others within specified times thereafter.9 During that week McMurray asked some employees, including Fisher, if they knew who had called OSHA. They said they did not. When Soape returned to work on Monday, November 18, he told Fisher he had called OSHA. Fisher testified that McMurray later said to him, "I wonder who called OSHA," that he replied that he knew it was Soape, that this conversation occurred on or about Tuesday, November 19, and that he was sure it was prior to Soape's layoff. Fisher also later told Soape in the presence of several other men that he had told this to McMurray. On Tuesday, November 19, Soape and Roberson spoke to McMurray about some OSHA items not yet corrected, and a number of men including Soape then worked on the problem areas and corrected all the remaining items. McMurray admitted that he made inquiries of crewmem- bers as to who called OSHA, that Fisher told him it was Soape, that he could not remember when but was "pretty positive" it was after Soape's layoff, and that no one told him this before the layoff but he nevertheless suspected Soape because, when Soape and Roberson came to see him about the uncorrected OSHA items, he said he thought a man on another job had called OSHA, and Soape laughed. Sidney Johnson, in one of his telephone conversations with Soape after Soape's layoff, asked if Soape had called OSHA. Soape replied that he did not call but knew who did. Johnson testified that at this time he had not talked to McMurray but only to Young, his area construction manager, who said Soape had called OSHA, and that he asked Soape just to see what he would say. 4. Soape's discharge by McMurray As noted above, Roberson telephoned Soape in Corpus Christi and reported on McMurray's reaction to Soape's absence. Soape told Sidney Johnson he had been told he was going to be replaced by McMurray for going to Corpus Christi. Johnson assured him this would not occur, and later told Young, the area construction manager, to make sure it did not. Soape returned to work on Monday, November 18. On Tuesday, Fisher testified, he told McMurray it was Soape who called OSHA , and McMurray admitted he guessed it was Soape when Soape and Roberson spoke to him that day about complying fully with 8 Occupational Safety and Health Administration. 9 Soape received a letter from OSHA dated November 25 reporting that his complaint had been investigated, thanking him for his interest in the 823 the OSHA directive. It was on that day also that the remaining OSHA items were corrected by crewmembers including Soape. On Wednesday, Soape was terminated. Soape testified that McMurray told him on Wednesday he was to be laid off but gave no reason ; that when he asked if it was the work, McMurray said it was not as his work and output were excellent; that McMurray then wondered aloud about who had called OSHA, but he did not answer; and that McMurray put on his termination slip "lack of work," but only Soape and one helper were laid off. McMurray testified that he was very "upset" about Soape's trip to Corpus Christi because Soape left without calling him, that the only advance notice he got was Soape's "joking" remarks about going fishing with Sidney Johnson, that he never got official notice of this trip , but that this was not why he laid off Soape. McMurray also testified that, while he suspected before the layoff that it was Soape who called OSHA, and was "upset" about it also, this was not why he laid off Soape. McMurray testified further that Soape's layoff was not because of the quality of his work, and that, in fact, he made out a report giving Soape "As high as you can get on a foreman's rating slip." McMurray maintained that the reason Soape was laid off was "Lack of work. I didn't have enough work to keep the men busy on the other tank"; that part of the work was completed by November 20; that the chipping was finished on Tank C, and men were chipping on Tank D, but that was a different job; that Soape was hired primarily to chip, he needed only one chipper at the time, and Morgan "was at work, I guess," although Morgan had been in jail again recently in Houston, and had not been working for about the past 3 weeks; that, since the layoff, "there have been three different guys chipped one day or two days . I don't remember the exact days"; that the only employee laid off other than Soape was a helper ; and that certain of the employees who were retained could perform different types of work, although McMurray admitted Soape could do other jobs also. As to Bickham's hire, McMurray testified that, although he first rejected Bickham's job request, he had to hire Bickham to avoid a dispute with the Local about not complying with the Local-NTM hiring ratio. He admitted, however, that he called the Local at one time, that it reported it had no men available at the time and told him to hire whomever he wished, that he had done so since then, and that he usually did not follow the hiring ratio provisions because he felt it was to Respondent's advantage to hire more NTM men as they were better workers. Sidney Johnson, who gave his title as the Regional Operations Manager for Clayton Welding Division of the South Central Region of Respondent, testified that he is in charge of building oil storage tanks and has 12 crews in his region doing this work, that there is continuous turnover on these jobs, that men are sometimes laid off when work is slack, and that layoffs are mostly in the bull gangs but one chipper might be let go if there were two. Johnson also testified that Soape had called him in about mid-1974, introduced himself as Jeff Johnson's assistant, and offered safety and health of the employees, and enclosing a copy of the citation hating eight OSHA violations found at the Finajobsite in an inspection made on November 12. 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his services; that they met when he was at the jobsite on one occasion and Soape, who was chipping, introduced himself; and that he saw him several times thereafter at the job but they did not talk. He also testified that they became acquainted in Corpus Christi when both sat in the back row as observers and had many conversations ; and that, when Soape reported what the job steward said about Soape's discharge by McMurray for going to Corpus Christi, and seemed very concerned, "I told Mr. Soape that there would not be any discharge because of his coming to Corpus Christi because this type of thing is allowed according to your NTM agreement, and so forth. And I told him that he would definitely not be discharged." Johnson testified further that Soape called on Wednesday evening, Novem- ber 20, and said he had been laid off, "and the first thing that struck my mind was that he had been laid off because of this union matter down here. . . . I was disturbed to think I had called my construction manager in my office the previous Monday and I told Mr. J. B. Young that under no circumstances was he to discharge or have Mr . McMur- ray discharge Mr. Soape over his union activities in Corpus Christi.... But we continued to talk on and Mr. Soape said he was laid off because of reduction in force. . . . I said, 'Well, I just don't understand this because J. B. Young has never failed to take a direct order from me.' And I said, 'I am going to check into this and find out what the problem is.' . . . But I said, 'I believe what we have over there, I think we have a little personality clash between you and Mr. McMurray.' " Johnson testified that he offered Soape a job on a different project; that Soape said he had to think it over as he felt his discharge as an area steward caused a loss of status with his job stewards; and that he, Johnson, could understand this position but told Soape that was the best he could do, and urged Soape to accept the new job "Because I did have back in my mind that he was being discharged because of this union activity in Corpus Christi, and I knew we would have a grievance over it." Johnson testified further that, when Young raised objections about Soape not being needed on a particular project, Johnson insisted a job be found for Soape or "we are going to get ourselves in trouble with the union." 5. Soape's new job with the Respondent Sidney Johnson testified that he told Soape, during a telephone conversation about 5 p.m. on the Wednesday evening of the discharge, that Soape should report to a job in Nederland, Texas, on which Eubanks was job foreman, and he would have Young make the arrangements that evening with Eubanks for this job, which would last much longer than the old one; that Soape responded that the discharge had caused him to "lose face" with his job stewards; that he understood Soape's position but said this was the best he could do; that Young opposed giving Soape a job on a project that was nearing completion and on which men were being laid off, but Johnson insisted as there would be union trouble otherwise ; and that Young then called Eubanks and Soape and arranged a job for Soape beginning the next day. Johnson also testified that he did not know whether Soape was caught up on the chipping at the Fina project when Soape was terminated; that Soape would not necessarily be chipping on the new job; and that there was a wage inducement plan at the new job but he did not know if Soape would be under it. Johnson testified, as did Soape, that in one of their telephone conversations he asked if Soape called OSHA, and Soape replied that he did not, but knew who did. He also testified that Young told him Soape called OSHA, and he asked just to see what Soape would say. Soape testified that there were further remarks about OSHA, including a question he asked as to whether Johnson would give him his old job if he proved he did not call OSHA. Johnson denied this. Johnson testified that Soape called him about a week or two later; that Soape had not reported to the new job, but wanted to meet in Houston with Johnson and Young to discuss the matter further ; that a meeting was arranged and was later postponed at Soape's request, but Soape did not appear at the postponed meeting or call; and that Soape called the office manager on November 27 and said he had not been able to report on the job because his wife was ill, but would on Friday, November 29. Soape maintained that when he called Johnson on Wednesday evening and discussed his discharge, Johnson said he thought Soape could be put on a job at the same plant with a different foreman; that Johnson said nothing about the Nederland job but told Soape to check with him next morning; that Soape did so, and Johnson then said he could not send Soape to the job they discussed but might to the Sun Oiljob in Nederland; that Soape protested because he had checked to see if there was any hiring on that job and found men were being laid off; and that he called Eubanks, who said Young had called and told him to hire Soape and, when he remarked that they were laying off and had only three men on the job, Young insisted Soape had to be hired. Soape denied that the new job was offered him on the Wednesday evening of his layoff as Sidney Johnson testified. Soape testified that on that Wednesday or the next day he called Jeff Johnson, who was in Florida on union business, and who asked Soape to take his place as International representative for several days. Soape also testified that he could not remember when he called Eubanks about the new job but believed it was the Saturday after his layoff; that the new job was not offered until he was involved in the Board investigation, and he refused to start on it until a company official called and told the Board the job was available; and that he was out of work he thought 5 or 6 days. He admitted he was wary about accepting this job offer because he thought it might be a trap to get rid of him in a layoff. He also admitted that it was not a trap, that he was still working at that project at the time of the hearing herein , but he maintained he was losing about $32 a day because he was not on the wage inducement program whereas he previously "normally got 12 hours for those eight hours" a day. McMurray held two safety meetings at the Fina jobsite after Soape's termination. Roberson and Bickham testified without contradiction that, at the first one, McMurray said, if those who got subsistence pay lost it , it would be Soape's fault. Roberson also testified without contradiction that before the second meeting he, as job steward, went with Fisher at Fisher's request to talk to Soape, who was there as GENERAL AMERICAN TRANSPORTATION CORP. area steward; and that, at the second meeting, McMurray said no one was to talk to Soape, by himself or with Roberson, or "our time would be docked or maybe something else," and also said that Soape was not autho- rized by Jeff Johnson or Lewis to act as area steward. On the question of Soape's authority, Jeff Johnson sent Sidney Johnson a letter, dated January 1, 1975, stating as follows: Pursuant to your request concerning the authority of Mr. Perry Soape, Jr., in regards to labor disputes in your region, please note the following. Mr. Perry Soape was appointed by me almost a year ago as the "Bull" Steward or Area Steward for Southeast Texas. The duties delegated to him are those of trying to settle properly any labor disputes arising in his area consistent with the N.T.M. Articles of Agreement. He has full authority to meet with any of the N.T.M. contractors in his area in order to settle or file grievances in order to secure the successful prosecution and completion of all NTM jobs. Concluding Findings Soape impressed me as a frank and believable witness, and his testimony was corroborated in large part not only by other witnesses for the General Counsel but also by testimony of Respondent's witnesses. While he apparently exaggerated as to certain particulars, he corrected most of these overstatements upon further questioning, and while he did not admit to McMurray or Sidney Johnson that he was the one who called OSHA, his reluctance to do so was understandable in all the relevant circumstances. On the basis of his demeanor and the record as a whole, I fmd Soape's testimony generally credible. I found Sidney Johnson a candid and forthright witness, and credit his testimony. Where it differs in certain respects from that of Soape, I found Johnson a more reliable witness, and therefore credit his testimony. Further, I found Fisher, Roberson, and Bickham trustworthy witnesses, and credit their testimony. McMurray, however, was an evasive and unconvincing witness, and I fmd his testimony for the most part unworthy of belief. The General Counsel contends that Soape was laid off because of his union and protected concerted activities, including particularly his trip to Corpus Christi and his complaint to OSHA . Respondent maintains that he was laid off for lack of work, and was transferred to a job at a different project, for nondiscriminatory reasons. I find, on the basis of the credited testimony and on the evidence in its entirety, that Soape told McMurray in advance that he was going to Corpus Christi with Sidney Johnson to attend the area contract negotiations, and not, as McMurray testified, that he and Johnson were going fishing. I fmd further that Soape as an area steward was permitted by Respondent, as Johnson testified, to take time off from his job for such purposes; that he had notified McMurray when hired that his union duties would require 10 Scott-Gross Company, Inc., 197 NLRB 420 (1972), enfd. 477 F.2d 64 (C.A. 6, 1973). 11 N.L.R.B. v. Express Publishing Company, 312 U.S. 426, 437 (1941); 825 this; and that he had been absent previously on union matters with McMurray's knowledge and permission. McMurray admitted that he was "upset" about Soape's trip to Corpus Christi. I find, as both Roberson and Bickham testified, that McMurray told Bickham, after rejecting his job request, that Bickman would be hired in Soape's place because Soape was taking too much time on union business. I do not credit McMurray's testimony that he hired Bickham because of the Local-NTM hiring ratio requirements. Soape returned to work on Monday, November 18, from the Corpus Christi trip. McMurray had been questioning employees during Soape's absence as to who had called OSHA. I credit Fisher's testimony that he told McMurray on or about Tuesday, November 19, that it was Soape who called OSHA, and McMurray admitted that he suspected on Tuesday that it was Soape who did so. Sidney Johnson was convinced, as his testimony shows, that Soape was discharged because of the Corpus Christi trip. He was aware of the OSHA incident also. Johnson made no claim in his testimony that Soape was terminated for lack of work. There is no documentary evidence and no probative testimony that Soape was terminated for lack of work at the Fina project. Nor does the evidence show that Soape was merely transferred from one job to another as the result of the work progress at the sites involved. On the contrary, the evidence shows, and I find, that Soape was discharged by McMurray precipitately on November 20, a Wednesday, because of his attendance at the contract negotiations in Corpus Christi and his report to OSHA. I fmd, therefore, that Respondent, by McMurray's discharge of Soape for engaging in union and protected concerted activities, has violated Section 8(a)(3) and (1) of the Act.10 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(3) and (1) of the Act, I shall recommend that Respondent be ordered to cease and desist therefrom and from in any other manner infringing upon its employees' Section 7 rights,11 and that it take certain affirmative action designed to effectuate the policies of the Act. I have found that Respondent discharged Perry Soape, Jr., on November 20, 1974, in violation of Section 8(a)(3) and (1) of the Act. The record indicates that the Fina project has been completed, but does not show when Soape's job there would have ended, whether he would then N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4,1941 ); Bob Henry Dodge, Inc., 203 NLRB 78 (1973). 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have been transferred, as some NTM workers were, to another jobsite, or how much extra pay he would have earned for chipping work during the backpay period, absent the discrimination against him. It also does not show whether the Nederland job, which was in the process of completion, has been completed. Further, I found vague and undeterminative Soape's testimony that he earned incentive pay virtually every day he worked at the Fina project, and that Sidney Johnson offered him the Neder- land job some days after the Wednesday of his discharge. No documentary evidence was presented on these issues, which will have to be determined, therefore, at the compliance stage of this proceeding or, if the parties cannot reach agreement, in a backpay proceeding. Accordingly, I shall recommend that Respondent be ordered to offer Soape reinstatement to his former job, or, if that job no longer exists, to a substantially equivalent position at another project of Respondent in the area, if any, without prejudice to his seniority or other rights and privileges, and to make him whole for any loss of pay he may have suffered as a result of the discrimination against him,12 with backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact and the entire record in this case , I make the following: CONCLUSIONS OF LAW 1. The Respondent, General American transportation Corporation, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Perry Soape, Jr., on November 20, 1974, because of his union and protected concerted activities, Respondent has discriminated against its em- ployees in regard to their hire or tenure of employment, and has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 13 The Respondent, General American Transportation Corporation, Port Arthur, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employees in regard to their hire or tenure of employment because of their union or protected concerted activities. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Perry Soape, Jr., immediate and full reinstate- ment to his former job, or, if that job no longer exists, to a substantially equivalent position at another project of Respondent in the Port Arthur area, if any, without prejudice to his seniority or other rights and privileges. (b) Make Perry Soape, Jr., whole for any loss of pay he may have suffered as a result of the discrimination against him, in the manner set forth in the section of this Decision entitled "The Remedy." (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 necessary to analyze the amounts of backpay due under the terms of this recommended Order. (d) Post at its premises in the Port Arthur Texas, area, copies of the attached notice marked "Appendix." 14 Copies of the notice, on forms provided by the Regional Director for Region 23, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 12 NLRB. v. J. H. Rutter-Rex Manufacturing Corny, Inc., 396 U.S. 258, 265 (1969), holding that "back pay is... a remedy designed to restore, so far as possible, the status quo that would have obtained but for the wrongful act." 13 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec . 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. 14 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 read "Posted Pursuant to a Judgment of the United States Court ofAppeals Enforcing an Order of the National Labor Relations Board." APPENDIX NoTica To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise discriminate against any employees with regard to their hire or tenure of employment because of their union or other protected concerted activities. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act, as amended. GENERAL AMERICAN TRANSPORTATION CORP. 827 WE WILL offer Perry Soape, Jr., immediate and full WE wu.I, make Perry Soape, Jr., whole for any loss of reinstatement to his former job, or, if that job no longer pay he may have suffered as a result of the discrimina- exists, to a substantially equivalent position at another tion against him. project in the area, if any, without prejudice to his seniority or other rights and privileges. GENERAL AMERICAN TRANSPORTATION CORPORATION