Local 130, International Electric Workers

National Labor Relations Board - Board Decisions

Dec 5, 1972

200 N.L.R.B. 760 (N.L.R.B. 1972)

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