Columbia Typographical Union No. 101

National Labor Relations Board - Board Decisions

Oct 10, 1974

214 N.L.R.B. 27 (N.L.R.B. 1974)

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