Lodge No. 1129, IAM

National Labor Relations Board - Board Decisions

Aug 8, 1975

219 N.L.R.B. 1019 (N.L.R.B. 1975)

LODGE NO. 1129, IAM 1019
Lodge No. 1129, International Association of Machin-
ists and Aerospace Workers , AFL-CIO and Victo-
ria Horwath and Sunbeam Appliance Company, Di-
vision of Sunbeam Corporation , Party to the
Contract.
Lodge No . 1129, International Association of Machin-
ists and Aerospace Workers, AFL-CIO, and Inter-
national Association of Machinists and Aerospace
Workers, District No. 8, AFL-CIO and Elizabeth
Gaudry and Sunbeam Appliance Company, Division
of Sunbeam Corporation , Party to the Contract.
Cases 13-CB-5038 and 13-CB-5039
August 8, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND
PENELLO
On April 16, 1975, Administrative Law Judge
Lowell Goerlich issued the attached Decision in this
proceeding. Thereafter, the Charging Parties filed ex-
ceptions and a brief. The Party to the Contract filed
exceptions and a brief, and the Respondent filed a
motion to strike said exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge to the
extent consistent herewith.
The facts are not in dispute. Briefly, the Respon-
dent and the Employer had entered into a collective-
bargaining agreement which required employees who
were or became members of the Respondent to re-
main members during the term of the contract. The
contract expired at midnight on January 12, 1973.
Prior to the expiration of that contract, the Respon-
dent and the Employer entered into a new collective-
bargaining agreement which contained a similar
maintenance-of-membership clause. As the new
agreement took effect upon the expiration of the old,
there was no hiatus between the contracts. No escape
period was written into the 1973 contract.
Prior to January 12, 1973, the Charging Parties
herein submitted to Respondent resignations effec-
tive on or before January 13. The employees ceased
paying dues after January 12. In October 1973 and
again in February 1974, Respondent informed the
employees that it would request their discharge if
their dues were not fully paid. On February 28, 1974,
Respondent requested the Employer to terminate the
employees who had not paid dues.
The Administrative Law Judge concluded that this
proceeding should be deferred to the grievance-arbi-
tration procedure of the collective-bargaining agree-
ment . We do not agree. Respondent, which seeks ar-
bitration, is in a position adverse to the employees
who are the Charging Parties herein. Unlike The
Newspaper Guild of Brockton, AFL-CIO (Enterprise
Publishing Company), 201 NLRB 793 (1973), which
was relied upon by the Administrative Law Judge,
the Employer herein is not the charging party and
has not thereby aligned itself with the employees al-
leging discrimination. The Employer has not other-
wise indicated that it is willing to pursue the rights of
the Charging Parties through the grievance-arbitra-
tion procedure but, to the contrary, has indicated it is
opposed to arbitration.' Thus, no party to the con-
tract, and to the arbitration provisions thereof, sup-
ports the employees who have the grievance. We will
not defer to arbitration in these circumstances for to
do so would place the employees at the mercy of
those who allegedly wronged them.2
Respondent threatened and sought to have the
Charging Parties discharged solely because they had
not paid their dues. Thus, the issue here is whether
the Charging Parties, by submitting resignations
from Respondent, escaped the contractual obligation
to pay dues. We find that they have not. The Board
has long held that where, as here, there is no time
lapse between successive collective-bargaining agree-
ments and there are closely similar union-security
clauses , of which maintenance of membership is one
form, the union-security clauses have continuity and
the new contract, at least as to union security, is to be
treated as a continuation of the old contract. Interna-
tional Union, United Automobile, Aerospace, Agricul-
tural Implement Workers of America (UAW), AFL-
CIO (John I. Paulding, Inc.), 142 NLRB 296, 301
(1963). This principle was recently affirmed in The
Newspaper Guild of Brockton, AFL-CIO, supra. Ac-
cordingly, we find that the 1973 contract herein, at
least as to the maintenance-of-membership clause, is
to be viewed as a continuation of the 1970 contract
and that the obligation of the Charging Parties to
abide by the clause and pay dues also continued.
'Respondent moved to strike the Employer 's exceptions on the ground
that the Employer is not a proper party to this proceeding . Whether we
grant or deny the motion is immaterial to this proceeding . As the Respon-
dent would agree to accepting the-Employer's exceptions as an amicus curiae
brief, we would in either event have the Employer 's position with respect to
arbitration before us for consideration . In addition , the crucial fact remains
that no party to the contract has indicated a willingness to support the
Charging Parties herein in any arbitration proceeding.
2 For the reasons set forth in Collyer Insulated Wire, A Gulf and Western
Systems Co., 192 NLRB 837 (1971) and related cases, Member Jenkins
would not have in any event deferred this case to arbitration.
219 NLRB No. 127
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As we have found that the Charging Parties are
obligated by the collective- bargaining agreement to
continue to pay dues to Respondent , Respondent
was within its rights to request the discharge of the
Charging Parties for failure to pay dues. According-
ly, we shall dismiss the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint here-
in be , and it hereby is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE '
LowELL GoERLICH, Administrative Law Judge: The
charge filed in Case 13-CB-5038 on October 9, 1973, by
Victoria Horwath against Lodge No. 1129, International
Association of Machinists and Aerospace Workers, AFL-
CIO, a Respondent herein , was served on said Respondent
by registered mail on or about October 11, 1973. The
charge filed in Case 13-CB-5039 on October 9, 1973, by
Elizabeth Gaudry was served on Respondent Lodge No.
1129, International Association of Machinists and Aero-
space Workers, AFL-CIO, and International Association
of Machinists and Aerospace Workers, District No. 8,
AFL-CIO, a Respondent herein (referred herein together
as the Respondent), by registered mail on or about October
11, 1973.
An order consolidating the cases, consolidated com-
plaint and notice of hearing was issued on May 15, 1974.
The complaint charged that the Respondent had violated
Section 8(bX2) and 8(b)(1)(A) of the National Labor Rela-
tions Act, as amended, herein referred to as the Act. By
answer timely filed the Respondent denied the commission
of the unfair labor practices alleged in the complaint.'
The cases came on for hearing at Chicago, Illinois, on
November 4, 1974. All facts were stipulated and "in order
to effectuate the purposes of the Act and to avoid unneces-
sary cost and delay" the matter was referred directly to the
Board for its decision. In due course , the Board entered an
Order Remanding Proceeding to Administrative Law
Judge "for the purposes of preparing and issuing a decision
containing findings of fact, conclusions of law , and a rec-
ommended Order." 216 NLRB No. 127 (1975). Thereafter,
briefs were filed which have been carefully considered.
As a second defense the Respondent answered:
The agreement between Respondent and Sunbeam contains griev-
ance and arbitration provisions .... The complaint involves the inter-
pretation of the union security provisions of the agreement , a matter
arbitrable as of right.... [P]roceedmgs should be deferred pending
arbitration of the interpretation of the union security provision of the
agreement.
The General Counsel in his brief did not address himself to the
Respondent's second defense ; nor did the Charging Parties.
FINDINGS OF FACT, CONCLUSIONS , AND REASONS THEREFOR
1. THE BUSINESS OF THE EMPLOYER
Sunbeam Corporation 2 is a corporation duly organized
under and existing by virtue of the laws of the State of
Delaware.
At all times material herein , Sunbeam Appliance Com-
pany, Division of Sunbeam Corporation (herein called
Sunbeam) has maintained offices and places of business in
Chicago, Illinois, and Oak Brook , Illinois , where it is now,
and has been at all times material herein, engaged in the
manufacture and We of electrical appliances. These are
the only facilities of Sunbeam involved in these proceed-
ings.
During the course of the last fiscal or calendar year, a
representative period, Sunbeam, in the course and conduct
of the business operations described in the above para-
graph , manufactured , sold, and shipped finished products
valued in excess of $50,000 directly to customers located in
States of the United States other than the State of Illinois.
During the course of the last fiscal or calendar year, a
representative period, Sunbeam, in the course and conduct
of the business operations described above, received goods
and material valued in excess of $50,000 directly from
States of the United States other than the State of Illinois.
Sunbeam is, and has been at all times material herein, an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATIONS INVOLVED
Lodge No. 1129, International Association of Machinists
and Aerospace Workers, AFL-CIO, and International As-
sociation of Machinists and Aerospace Workers, District
No. 8, AFL-CIO, and each of them are now, and have
been at all times material herein , labor organizations with-
in the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Pertinent Facts
The parties stipulated as to the facts. The relevant facts
follow:
At all times material herein , the following named per-
sons have occupied the positions set opposite their re-
spective names and have acted on behalf of the Respon-
dent as its agents within the meaning of Sections 2(13) and
8(b) of the Act:
George Janas, Directing Business Representative
Robert Stoops , Business Representative
John R. Tenini , Business Representative
District No . 8 is now, and has been at all times material
herein, the exclusive collective -bargaining representative of
the production and maintenance employees in Sunbeam's
2 Sunbeam Corporation was made a party to this proceeding designated
as "Party to the Contract. " Donald F . Berry, director of industrial relations,
was present in the courtroom but refrained from entering an appearance for
the Company.
LODGE NO . 1129, IAM
plants at 5400 West Roosevelt Road and 5600 West Roose-
velt Road , Chicago, Illinois, and maintenance and mainte-
nance clerical employees at the Sunbeam facility at 2001
South York Road , Oak Brook , Illinois.
Though District No. 8 is the recognized bargaining rep-
resentative at the aforementioned Sunbeam facilities, as a
matter of internal union procedure it is required that the
employees so represented maintain membership either in
Lodge No. 1129 or in District No. 8.
During the period January 12, 1970, until midnight Jan-
uary 12, 1973, District No. 8 and Sunbeam were parties to
a collective-bargaining agreement (referred to herein as the
1970 agreement), covering the employees referred to above.
On January 12, 1973, prior to the expiration of the col-
lective -bargaining agreement described in the above para-
graph, District No. 8 and Sunbeam entered into a new
collective-bargaining agreement (referred to herein as the
1973 agreement), covering the employees referred to in the
foregoing paragraph . There was no hiatus between the ex-
piration of the 1970 agreement and the effective date of the
1973 agreement.
At no time material herein has either District No. 8 or
Lodge No. 1129 maintained any rules, bylaws, constitu-
tional requirements , or regulations dealing with resignation
from said labor organizations.
Prior to January 12, 1973, certain employees of Sunbeam
in the collective-bargaining unit referred to above submit-
ted to Respondent resignations from membership in Re-
spondent ; said resignations were to be effective on or be-
fore January 13, 1973. Further, said employees did not
cease paying union dues until after January 12, 1973.
On or about October 1, 1973, Respondent , by its officers
and agents Robert Stoops and John R. Tenini , sent a letter
to those employees mentioned above who submitted resig-
nations of membership as follows:
Dear Member:
Under the provision of Article III of our Collective
Bargaining Agreement at Sunbeam , you are required
to make payment of regular monthly dues in order to
retain employment under the present Agreement. Our
records indicate that you have not made regular dues
payment since [appropriate month] 1973. Under the
provisions of Article III, we have the right to request
the company to discharge you for failure to pay dues.
Unless we receive , by November 1, 1973, full payment
of your outstanding dues, we shall have no choice but
to write the company to terminate your employment
for failure to comply with Article III.
We sincerely hope that you will make payment so that
it will not be necessary to request your termination.
On or about February 7, 1974, Respondent , by its officer
and agent George Janas , sent a letter to the employees
mentioned in the foregoing paragraph as follows:
Dear Sir or Madam:
Under the terms and conditions of the collective bar-
gaining agreement now in effect with Sunbeam, you
are required to maintain your membership in Lodge
No. 1129. Our records show that-you have not main-
1021
tained your membership status and that you are delin-
quent. Unless full and complete payment is received
by March 1 , 1974, we shall have no choice but to re-
quest Sunbeam to terminate your employment in ac-
cordance with the provisions of the Agreement.
For your information , Regional Director Russ B.
Madden [sic] of the National Labor Relations Board
dismissed charges brought by employees of Sunbeam.
In his decision he stated:
From the investigation , the evidence shows that the
Union's demand for back dues was in accord with
the lawful collective bargaining agreement with the
employer and thus did not violate Section 8(b)(2) of
the Act . Nor does the evidence show that the em-
ployees involved had effectively and timely with-
drawn from union membership , in that under a
maintenance of membership clause there is no re-
quirement , by law , that an escape period be provid-
ed. I am therefore refusing to issue a complaint
(against Local 1129) in this matter.
We sincerely hope that you will comply with the main-
tenance of membership provision by paying all your
dues required. .
On February 28, 1974 , the Respondent by_ letter request-
ed the termination of the above -referred-to employees for
noncompliance with the union -security clause in the 1973
contract , except for Richard Prasky who had previously
left the bargaining unit . The Charging Parties' names were
on the list of employee names submitted . Sunbeam re-
sponded by letter dated March 1, 1974, that it would "with-
hold action upon your request to have these employees
terminated for non-payment of dues until such time as the
General Counsel 's decision upon the appeal is made." Sun-
beam has discharged none of these employees.
By letter dated March 22, 1974, the Respondent request-
ed the termination of employees Yancy P. Walley and Ver-
ona Micek for failure to comply with the union-security
clause. These employees were among those mentioned
above . Neither has been discharged.
While no formal first-step written grievance has been
filed in this matter , on or about June 6, 1974, District No.
8's business representative , Janas, advised Sunbeam of
Respondent's desire to arbitrate this case . By letter dated
July 29 , 1974, Sunbeam responded:
The Company is not willing to voluntarily submit the
matter of NLRB Cases 13-CB-5038 and 13-CB-5039
to arbitration . This position was originally stated to
NLRB Field Examiner , C. A. Alexander "because the
cases concern a dispute between the Union and its
membership ." That position remains unchanged.
The Company is willing, however, to abide by its obli-
gations to arbitrate matters of dispute which cannot
be otherwise resolved, provided the matter is properly
submitted for arbitration in accordance with the cur-
rent Collective Bargaining Agreement.
At this time , the Company suggests that much consid-
eration be given to arbitrating any potential contract
violation allegations which may result from these
cases until they are resolved by the Board.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By letter dated August 5, 1974, Janas replied in part: "As I
stated in my prior letter your refusal to discharge dues de-
linquent employees constitutes a violation of the
Company's obligation under the Union Security clause of
the Contract . This is the matter which we are seeking to
have arbitrated."
The Charging Parties object to arbitration of this- case.
The Respondent also negotiated contracts in 1964 and
1967.
Pertinent union-security clauses in the 1964 contract are
as follows:
All employees who are members of the Union on
January 3, 1964, and those employees who may there-
after become members shall , during the life of this
Agreement as a condition of employment remain
members of the Union , in good standing.
Any employee of the Company who is not now a
member of the Union is not now or at any time here-
after required or compelled to join the Union; but,
any such employee is free to join the Union at any
time . If any employee does join the Union at any time,
he must continue to remain a member of the Union,
and his dues will be checked off as hereinafter ex-
plained , as long as the Contract is in force and effect
and while he remains an employee of the Company.
Any employee who is now a member of the Union
is required , as a condition of his employment, to main-
tain his membership in the Union as long as the con-
tract remains in force and effect and while he remains
in the employ of the Company, in the unit covered by
this contract, unless he withdraws from the Union
during the escape period immediately after midnight
December 19, 1966 and before midnight on the 3rd
day of January, 1967. If he desires to withdraw during
such escape period he must notify the Union in writ-
ing during that time of said desire to withdraw.3
Any new employee who may be employed hereafter
is not compelled to join the Union as a condition of
his employment , nor at any time hereafter . If any such
new employee does join the Union at any time, he
must continue to remain a member of the Union, as
long as the contract is in force and while he remains in
the employ of the Company in the unit covered by this
contract.
Pertinent union-security provisions in the 1967 contract
are as follows:
All employees who are members of the Union on
January 3, 1967 and those employees who may there-
after become members shall , during the life of this
Agreement as a condition of employment remain
members of the Union , in good standing.
Any employee of the Company who is not now a
member of the Union is not now or at any time here-
after required or compelled to join the Union; but,
any such employee is free to join the Union at any
time . If any employee does join the Union at any time,
he must continue to remain a member of the Union,
3 This escape clause does not appear in later contracts.
and his dues will be checked off as hereinafter ex-
plained , as long as the Contract is in force and effect
and while he remains an employee of the Company.
Any new employee who may be employed hereafter
is-not compelled to join the Union as a condition of
his employment, not at any time hereafter. If any such
new employee does join the Union at any time, he
must remain a member of the Union, as long as the
Contract is in force and while he remains in the em-
ployee of the Company in the unit covered by this
Contract.
The Company has no interest in whether or not any
employee joins or remains a member of the Union.
That matter is entirely up to the voluntary decision of
each employee . Any employee's Union affiliation, or
lack of affiliation , will in no respect influence the
Company as to such employee's relations with the
Company in regard to his work.
Pertinent union-security provisions in the 1970 contract
are as follows:
All employees who are members of the Union on
January 19, 1970 and those employees who may there-
after become members shall, during the life of this
Agreement as a condition of employment remain
members of the Union , in good standing.
Any employee of the Company who is not now a
member of the Union is not now or at any time here-
after required or compelled to join the Union; but,
any such employee is free to join the Union at any
time. If any employee does join the Union at any time,
he must continue to remain a member of the Union,
and his dues will be checked off as hereinafter ex-
plained , as long as the Agreement is in force and effect
and while he remains an employee of the Company.
Any new employee who may be employed hereafter
is not compelled to join the Union as a condition of
his employment , nor at any time hereafter . If any such
new employee does join the Union at any time, he
must continue to remain a member of the Union, as
long as the Agreement is in force and while he remains
in the employ of the Company in the unit covered by
this Agreement.
The Company has no interest in whether or not any
employee joins or remains a member of the Union.
That matter is entirely up to the voluntary decision of
each employee . Any employee's Union affiliation, or
lack of affiliation , will in no respect influence the
Company as to such employee 's relations with the
Company in regard to his work.
Pertinent union-security provisions in the 1973 contract
are as follows:
Section 3.1-It is agreed that no Employee of the
Company, and no one seeking employment , shall be
required as a condition of employment, transfer, pro-
motion or retention in the Company to join or refrain
from joining any labor organization or other associa-
tion of employees.
Section 3.8-Union Membership-The Company has
LODGE NO . 1129, IAM
no interest in whether or not any Employee joins or
remains a member of the Union . That matter is entire-
ly up to the voluntary decision of each Employee. Any
Employee 's Union affiliation, or lack of affiliation,
will in no respect influence the Company as to such
Employee 's relations with the Company in regard to
his work . The Union agrees that neither it nor any of
its officers or members will intimidate or coerce Em-
ployees into membership in the Union.
3.8-1-All Employees who are members of the Union
on January 12, 1973 and those Employees who may
thereafter become members shall , during the life of
this Agreement as a condition of employment remain
members of the Union, in good standing.
3.8-2-Any Employee of the Company who is not
now a member of the Union is not now or at any time
hereafter required or compelled to join the Union;
but, any such Employee is free to join the Union at
any time. If any Employee does join the Union at any
time , he must continue to remain a member of the
Union, and his dues will be checked off as hereinafter
explained, as long as the Agreement is in force and
effect and while he remains an Employee of the Com-
pany.
3.8-4--Any new Employee who may be employed
hereafter is not compelled to join the Union as a con-
dition of his employment , nor at any time hereafter. If
any such new Employee does join the Union at any
time , he must continue to remain a member of the
Union, as long as the Agreement is in force and-while
he remains in the employ of the Company in the unit
covered by this Agreement.
The following is a list of employees referred to above
setting forth the last month in 1973 that each of said em-
ployees paid dues to Lodge No. 1129.
Alex Adamiec March
Joseph Adamiec March
Frank Arient April
Gordon Atchley June
Walter Barabasz April
Ann Barrett February
Ann Bloom March
Harry Bowers May
Angeline Busch June
George Carpenter February
Clyde Collins February
Jean Crawford June
Edward Cuga March
Ernest Cvetezar March
Edward Cygan February
Edward Dannello March
James Dickerson April
Robert Furlong February
George Gaspoca February
Elizabeth Gaudry January
Charles Goodluck February
Marie Halfpenny April
Bernice Harazmus April
Victoria Horwath March
Alice Huzevka May
1023
Vera Janak February
Cecilia Karris February
Harold R. Koch February
Sylvia Kohout February
Leonard Kovar February
Patricia Kovar February
Helen Krawczykm March
George Kristl March
Edward Kubes June
Edwin Kukla June
Veneta Laws March
Sarah Lenetsky April
Irene Lenski March
Adeline Manning July
Peter Marshe May
Doyle Martin March
Willard Mauksch May
Frank Mayes May
Wanda Milewski February
James Mucha March
Jose Palmerin February
Helen Patrick March
Anthony Pauzvolis July
Ruth Pawelczyk February
Albin Powalish April
Henry Prchal May
Ted Rapacz March
Henry Rozhan January
Robert Slatsman March
Mary Sanders March
Edwin Schmidt March
John Spychalski February
Henry G. Steward February
Fred Suchaczewski May
Genevieve Swojenski May
Norman Szalonek February
Mary Szczensiak February
Raymond Urbanovish March
Robert Vantrepotte March
Margaret Wasikowski February
Jean Wiencek April
Charles Widrbehner July
Mary Wolski June
Stephen Zawitaj March
Edward Zebig March
Walter Zych May
The payment of dues to Lodge No. 1129 for the month of
January 1973 was paid during the term of the 1970 con-
tract. Each of the above-listed -employees would -testify that
in January 1973 , prior to the payment of dues for any suc-
ceeding month , each of them was informed either by Sun-
beam or by fellow employees that they were subject to
discharge if they did not continue their payments.'
The 1970 agreement provides:
Within thirty (30) days after effective date of this
Agreement , the Union shall furnish the Company a
notarized list of members as of that date . -If any --em-
ployee named on `that list asserts that they withdrew
from membership in the Union prior to that date, and
any dispute arises as to whether an employee was or
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was not a member of the Union , at any determinative
time, the matter shall be regarded as a grievance and
shall be adjudicated under the rievance procedure 4
provided for in this Agreement.
The Union agrees to indemnify the Company and
hold it harmless against any and all suits, claims, de-
mands, and liabilities for damage or penalties that
shall arise out of or by reason of any action that shall
be taken by the Company for the purpose of com-
plying with the check-off or maintenance of member-
ship provisions of this Article, or in reliance on the
correctness of any list or certification furnished by the
Union to the Company.
The 1973 agreement provides in pertinent part:
3.8-5-The Union agrees to indemnify the Company
and hold it harmless against any and all suits, claims,
demands, and liabilities for damage or penalties that
shall arise out of or by reason of any action that shall
be taken by the Company for the purpose of com-
plying with the check -off or maintenance of member-
ship provisions of this Article, or in reliance on the
correctness of any list or certification furnished by the
Union to the Company . Union indemnification shall
not include any indemnification for attorney's fees in-
curred by the Company in defending any suit de-
scribed in the foregoing sentence , unless the Company
has tendered the defense of such suit to the Union in
writing, and the Union has failed to accept the defense
of such suit.
3.8-6.-Within thirty (30) days after effective date of
this Agreement, the Union shall furnish the Company
a notarized list of members as of that date.
3.9-2-The Company will take no action against any
Employee , under the maintenance of membership pro-
vision, if requested to do so by the Union unless the
Employee involved is certified as a Union member,
and either has executed a dues deduction authoriza-
tion form previously forwarded to the Company by
the Union or the Union has previously filed a true
copy of the Employee's application for Union mem-
bership with the Company, under the existing contract
between the parties .6
Section 8.1-Grievance-For the purpose of this
Agreement the term Grievance is defined as a dispute
or controversy between the Company and the Union
or between the Company and an Employee , or group
of Employees , concerning the interpretation and ap-
plication , or an alleged breach of the provisions of this
Agreement with respect to rates of pay, wages, hours
of employment , and other conditions of employment
referred to in this Agreement.
Section 9 . 1-Arbitrability of Disputes-The following
disputes can be arbitrated as a matter of right:
9.1-2-An alleged violation by either party of any
provision of this Agreement , or any supplement or
6 An arbitration provision is included in the contract.
3 This paragraph is not included in the 1973 agreement.
6 A construction of this paragraph is essential to any finding that the
Union's conduct herein described was unlawful.
amendment thereto which may be entered into in writ-
ing between the parties after the date of this Agree-
ment.
9.1-3-A dispute involving application or interpreta-
tion of any provision of this Agreement.
9.4-4-The Arbitrator shall have no power to hear or
decide any dispute alleging an unfair labor practice by
either party which does not constitute a violation of a
specific , designated provision of this Agreement or
any supplement or amendment thereto.
B. Conclusions and Reasons Therefor
The Respondent, citing The Newspaper Guild of Brock-
ton, AFL-CIO (Enterprise Publishing Company), 201 NLRB
793 (1973), enfd . sub nom. Enterprise Publishing v.
N.LR.B., 493 F.2d 1024 (C.A. 1, 1974), maintains that the
issues raised in the consolidated complaint are "grist for
the mill of arbitration and the matter should be deferred."
The Board teaches in Bio-Science Laboratories, 209 NLRB
796 (1974) at footnote 3, that the question of deferral to
arbitration is a "threshold issue and findings on the merits
of the allegations should only be made if this case is not
suitable for deferral."
In the case of The Newspaper Guild of Brockton, AFL-
CIO, supra, a case on all fours with the instant case, the
Board with court approval ascertained that the case was
suitable for deferral . Such case involved a dispute "as to
whether the Union violated the Act by requesting the dis-
charge of employees by reason of their nonpayment of
dues ." The Board held that "the real issue in this case boils
down to a combination of factual determinations and of
contract law and contractual interpretation , all matters ful-
ly cognizant by an arbitrator."
The same state of affairs is present in the instant case. If,
as the Respondent claims , the maintenance-of-membership
clause required the Charging Parties and other employees
to remain members of the Union as a condition of employ-
ment , a proper request for enforcement of the clause did
not offend the Act. Otherwise the Act may have been vio-
lated . At this stage of the proceedings , these issues involve
contractual interpretations which primarily belong to the
pertinent procedures for their resolution under the con-
tract . There is no contractual inhibition against the arbitra-
tion of the dispute herein.
Accordingly, in conformity with the policy established
by the Board in Collyer Insulated Wire, A Gulf and Western
Systems Co., 192 NLRB 837 (1971), and The Newspaper
Guild of Brockton, AFL-CIO, supra, this case must be de-
ferred to arbitration.
CONCLUSIONS OF LAW
1. The Respondent Unions are labor organizations with-
in the meaning of the Act.
2. Sunbeam 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.
3. Jurisdiction is properly asserted in this case.
4. In conformity with Board policy, this case should be
deferred to arbitration.
THE REMEDY
LODGE NO. 1129, 1AM 1025
Without prejudice to any party and without deciding the
merits of the controversy , it is recommended that the con-
solidated complaint be dismissed but that jurisdiction be
retained for a limited purpose . In order that the risk of
prejudice to any party may be eliminated , it is recommend-
ed that jurisdiction over this dispute be retained solely for
the purpose of entertaining an appropriate and timely mo-
tion by any party for further consideration upon a proper
showing that either (a) the dispute has not, with reasonable
promptness after the issuance of the Decision herein, either
been resolved by amicable settlement in the grievance pro-
cedure or submitted promptly to arbitration , or (b) the
grievance or arbitration procedures have not been fair and
regular or have reached a result which is repugnant to the
Act.
Accordingly, upon the basis of the foregoing findings of
fact, conclusions of law, and the entire record in this pro-
ceeding, and pursuant to Section 10(c) of the Act, it is
recommended that the Board issue the following:
ORDER?
It is hereby ordered that the consolidated complaint be,
and it hereby is, dismissed in its entirety; provided, howev-
er, that jurisdiction of this proceeding is retained for the
limited purposes set forth in that portion of this Decision
entitled "The Remedy."
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.