Mountain State Construction Co., Inc.

National Labor Relations Board - Board Decisions

Jun 1, 1973

203 N.L.R.B. 1085 (N.L.R.B. 1973)

MOUNTAIN STATE CONST. CO. 1085
Mountain State Construction Company, Inc. and Inter-
national Union of Operating Engineers , Local Union
132, AFL-CIO and Local Union No. 175, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America and Iron Workers
Union Local 301, an affiliate of the International
Association of Bridge , Structural and Ornamental
Iron Workers, AFL-CIO, and Construction and
General Laborers Union , Local 1353 , Laborers In-
ternational Union of North America , AFL-CIO and
Kenneth R. Johnson , Chester Eugene Starcher, Dar-
rell J. Starcher, and Donald L. Starcher, and Inter-
national Union of District 50, Allied and Technical
Workers of the United States and Canada , Party to
the Contract . Cases 9-CA-6603-1-2, 9-CA-6626,
9-CA-6648, 9-CA-6657-1, and 9-CA-6657-2
-3,-4,-5
June 1, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On February 15, 1973, Administrative Law Judge
Thomas F. Maher issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief.
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 Administrative Law
Judge's Decision in light of the exceptions and brief
and has decided to affirm the Administrative Law
Judge's rulings, findings, and conclusions, only to the
extent consistent herewith.
The complaint alleges in substance that Respon-
dent violated Section 8(a)(1), (2), (3), and (5) of the
Act by: (a) numerous acts of unlawful interrogation
and threats to employees in an effort to force them to
join International Union of District 50, Allied and
Technical Workers of the United States and Canada;
(b) unlawfully executing a collective-bargaining
agreement with District 50; (c) unlawfully discharg-
ing, laying off, and refusing to recall a considerable
number of employees because of their nonmember-
ship in District 50; and (d) unlawfully terminating its
collective-bargaining agreements with the Operating
Engineers , Teamsters, Laborers, and Iron Workers,
and executing a contract with District 50 at a time
when the terms and conditions of its contracts with
the aforementioned labor organizations were in full
force and effect.
The Administrative Law Judge found the 1970-72
Heavy and Highway Agreements with the Operating
Engineers, Teamsters, and Laborers, as well as the
agreement with the Iron Workers, to be binding upon
the Respondent at all times relevant to this proceed-
ing.' It is also undisputed that Respondent signed an
agreement with District 50 at a time when the terms
and conditions of its contracts with the above-men-
tioned Unions were in full force and effect. In a post-
hearing brief to the Administrative Law Judge,
Respondent raised the question of arbitration by sug-
gesting that the Board should defer to the arbitration
procedure set forth in the Heavy and Highway Agree-
ments? The Administrative Law Judge dismissed the
complaint by finding that the matters contained
therein should be deferred to arbitration in the man-
ner prescribed by Collyer Insulated Wire, A Gulf and
Western Systems Co., 192 NLRB 837. We disagree.
The record shows that Respondent's position, in its
answer to the complaint and throughout the hearing,
was that it was not bound by either the 1970-72
Heavy or Highway Agreements with the Operating
Engineers, Teamsters, and Laborers. Under the cir-
cumstances of this case, we consider the Respondent's
actions set forth above to be a complete rejection of
the principles of collective bargaining and the self-
organizational rights of employees, as found in Chase
Manufacturing, Inc., 200 NLRB No. 128. Thus, defer-
ral to arbitration is not warranted in this case.' Ac-
cordingly, we shall remand this case to the
Administrative Law Judge so that he may make the
appropriate findings of fact and credibility resolu-
tions and issue a supplemental decision.
ORDER
It is hereby ordered that the Administrative Law
Judge shall prepare and serve on the parties a supple-
mental decision containing findings of fact, conclu-
sions of law, and recommendations in accordance
with this Order and that, following service of such
supplemental decision on the parties, the provision of
Section 102.46 of the Board's Rules and Regulations,
Series 8, as amended, shall be applicable.
1 There were no exceptions filed with respect to this finding.
2 Respondent did not specifically request that the Board defer to the arbi-
tration procedure in the Iron Workers agreement as set forth in the Adminis-
trative Law Judge 's Decision.
3 Member Jenkins would not, in any event , defer to arbitration in this case.
See his dissenting opinions in Collyer and subsequent decisions.
DECISON
STATEMENT OF THE CASE
THOMAS F. MAHER, Administrative Law Judge: Upon var-
203 NLRB No. 167
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sous charges and amendments thereto filed between No-
vember 8, 1971, and March 3, 1972, respectively, by Inter-
national Union of Operating Engineers, Local Union 132,
AFL-CIO, hereinafter called the Operating Engineers, Lo-
cal Union 175, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, here-
inafter called the Teamsters, Iron Workers Union Local
301, an affiliate of the International Association of Bridge,
Structural and Ornamental Iron Workers, AFL-CIO, here-
inafter called the Iron Workers, Construction and General
Laborers Union, Local 1353, Laborers International Union
of North America, AFL-CIO, hereinafter called the Labor-
ers, and by Kenneth R. Johnson, Chester Eugene Starcher,
Darrell J. Starcher, and Donald L. Starcher, all individuals,
against Mountain State Construction Co., Inc.,' Respon-
dent herein, the Regional Director for Region 9 of the Na-
tional Labor Relations Board , herein called the Board,
issued a complaint on April 7, 1972, on behalf of the Gener-
al Counsel of the Board, alleging violations of Section
8(a)(l), (2), (3), and (5) of the National Labor Relations Act,
as amended (29 U.S.C., Sec. 151, et seq.), herein called the
Act. In its duly filed Answer Respondent, while admitting
certain allegations of the complaint , denied the commission
of any unfair labor practice.
Pursuant to notice a trial was held before me in Charles-
ton, West Virginia, at which all parties were present, repre-
sented by counsel, and afforded full opportunity to be
heard , present oral argument , and to file briefs . Briefs were
filed with me by General Counsel and Respondent on De-
cember 8 and 11 , 1972, respectively.
Upon consideration of the entire record, including the
briefs filed with me, and specifically upon my observation
of each witness appearing before me,' I make the following:
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
I THE NATURE OF RESPONDENTS BUSINESS
place of business in South Charleston, West Virginia. Dur-
ing the 12-month period preceding the issuance of the com-
plaint herein Respondent purchased and caused to be
shipped to its construction sites in West Virginia goods and
materials valued in excess of $50,000 directly from points
outside of the State of West Virginia.
Upon the foregoing admitted facts, I conclude and find
Respondent to be an employer within the meaning of Sec-
tion 2(6) and (7) of the Act.
If THE LABOR ORGANIZATIONS INVOLVED
It is admitted, and I accordingly conclude and find that
International Union of Operating Engineers, Local Union
132, AFL-CIO, Local Union No. 175, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Iron Workers Local 301, an affiliate of
the International Association of Bridge, Structural and Or-
namental Iron Workers, AFL-CIO, and Construction and
General Laborers Union, Local 1353, Laborers Internation-
al Union of North America, AFL-CIO, all charging parties
herein, and International Union of District 50, Allied and
Technical Workers of the United States and Canada, the
party to a contract under consideration herein, to be labor
organizations within the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
At the threshhold of this matter is the determination of
whether or not there existed valid binding collective agree-
ments between Respondent and the charging unions herein,
in effect at the time of the unfair labor practices alleged in
the complaint herein, and relating to the allegations in the
complaint. Once having determined this question, itself a
basic allegation of the complaint, the remaining allegations
assume their proper perspective.
Mountain State Construction Co., Inc., Respondent here-
in, is a West Virginia corporation engaged in the building
and construction industry, with its principal office and
i Upon motion of counsel for the General Counsel and over Respondent's
objection and in the interest of accuracy, the corporate name of the Respon-
dent, as frequently used in the pleadings and at the hearing, and in the
caption of this proceeding , is corrected to reflect the exact present wording
of Respondent 's corporate title
Following a change in corporate structure of March 31, 1969,
Respondent 's name was "Mountain State Construction Co, Inc " Prior to
that date it was "Mountain State Construction Company" in the pleadings,
including Respondent 's Answer to the Complaint, the Respondent 's corpo-
rate title was designated as "Mountain State Construction Company, Inc"
At no point in the record does it appear that anyone has been confused
or mislead by the use of the word "Company" rather than its abbreviation,
"Co " nor has there been any consistency in the use of one or the other
throughout the hearing . Indeeed Respondent 's own payroll records for peri-
ods in 1971 , introduced into evidence by Respondent , use the abbreviation
"Co" as part of the title on each sheet
Under all of the circumstances , including the trivial nature of the discre-
pancy, it is accordingly recommended that in keeping with my correction of
the caption and the correct designation of the Respondent in this Decision
that all documents in this matter be corrected upon issuance of any Order
herein
i Bishop and Matco, Inc, d/b/a Walker's, 159 NLRB 1159, 1161
B. The Contract
Beginning in September 1969 a committee of the
Constructor's Labor Council of West Virginia, Inc., herein-
after called the Council, commenced negotiations with rep-
resentatives of the Teamsters, Operating Engineers, and
Laborers directed to the reaching of agreement on the so-
called Heavy and Highway Agreements covering all heavy
construction work and all highway construction work, re-
spectively, performed by members of the Council in the
State of West Virginia.
Respondent was a member of the Council since 1963.
During the period of time encompassing the negotiations
for the 1970-72 contract, to wit, between September 1969
and March 1970, Respondent's then vice president, Gerald
E. Ray, represented Respondent on the Council, and was
likewise a member of the Council's negotiating committee,
having attended all neogtiating sessions including the final
one in November 1970 at which the agreements were for-
mally ratified by the Council on behalf of the member-
employees. Ray, who became Respondent's president on
MOUNTAIN STATE CONST. CO.
April 1, 1970,3 credibly testified that during his tenure as
president between April 1 and November 1970 he consid-
ered Respondent to be bound by the terms and the condi-
tions of the Heavy and Highway Agreements, and that it
abided by the terms of those agreements, and used the
hiring and referral systems of the signatory unions "where
needed." Upon this credited testimony, and upon the docu-
mentary evidence of payment by the Respondent during the
period of the agreement of assessments to the various pen-
sion and welfare funds of the signatory unions in behalf of
their respective members in Respondent's employ, I con-
clude and find that by its admitted membership in the
Council in 1970 Respondent became obligated under the
1970-72 Heavy Highway Agreements which the Council
executed in its behalf.
Nor is it of significance to this conclusion that on January
6, 1971, Respondent's then president, Dean Lewis, commu-
nicated to the Council Respondent's request that it be
dropped from the membership rolls, Respondent refusing
thereafter to pay its regular Council membership dues. No-
where has it been claimed, either at that time or thereafter,
that Respondent's withdrawal from Council membership
was intended to constitute its withdrawal from the contrac-
tual obligations established by its Council membership; nor
does there appear any stated or implicit reason for its with-
drawal midway into the term of the contract. Absent any
reason, little less an impelling one, I conclude and find that
such a withdrawal by Respondent as an attempt to abrogate
its contractual obligation was an untimely one and the obli-
gation, namely the 1970-72 Heavy and Highway Agree-
ments, remain in force.
Additionally, it is to be noted that Respondent, by the
testimony of its president, Dean Lewis, claims that it is
bound to the terms of the 1970-72 Heavy and Highway
Agreements insofar as work commenced in 1969 is involved.
Quite apart from Gerald Ray's credited testimony that dur-
ing his term as president of Respondent until November
1970, supra, he considered Respondent bound by the Agree-
ment, I have carefully studied the contract documents and
portions of the record pertaining to them and, except for
Lewis' testimony, I find nothing to support the limitation he
places upon the scope of Respondent's obligation. I accord-
ingly reject it.
And finally it is to be noted that, at several points in the
record, reference is made to efforts being sought to settle
grievances, presumably under the contract, and Respon-
dent in its brief to me specifically urges that in this matter
the Board should defer to the arbitration procedure set forth
in the Heavy and Highway Agreements. The inconsistency
between this position being urged upon me and the
Respondent's efforts to disavow the contract persuades me
further of the lack of substance of its claim with respect to
the contract. For all of the foregoing reasons, therefore, I
3In the colloquy in the record respecting General Counsel's motion to
correct the caption as to Respondent's corporate title (supra, fn 1) there is
a suggestion that two or more separate corporate entities might be involved
here. Nothing to this effect has ever been raised in the pleadings, however,
and a review of the corporation structure in the testimony of Respondent's
president, Dean Lewis, clearly indicates that throughout all periods relevant
herein Respondent is and has been the same identifiable organization, and
I so conclude and find.
4 McAnary & Welter, Inc, 115 NLRB 1029
1087
conclude and find that the 1970-72 Heavy and Highway
Agreements are binding upon Respondent at all times rele-
vant to this proceeding.
In addition to the disputed Heavy and Highway Agree-
ments there is also directly involved in this proceeding the
agreement entered into on June 1, 1970, by Kanawha Valley
Builders Assocation, of which Respondent is a member, and
the Iron Workers, which agreement expires by its terms on
May 31, 1973. Respondent, by its answer and its statements
on the record, admits its obligations under this agreement.
As I find nothing in the record to otherwise limit
Respondent's obligations under the agreement, I according-
ly conclude and find that Respondent is bound thereby at
all times relevant herein.
C. Alleged Violations Relating to
the Contracts in Force
The complaint in this matter alleges violations of Section
8(a)(1), (3), and (5) of the Act. With respect to the Section
8(a)(3) allegations a considerable number of employees are
listed of whom it is claimed Respondent has discriminatori-
ly discharged or laid them off because of membership in one
or another of the charging unions herein, all signatory to the
contracts then in force. It is also alleged that Respondent
refused, since November 1, 1971, to employ members of the
Iron Workers in order to discourage membership in that
union, that it refused to bargain collectively since Novem-
ber 3, 1971, with the unions signatory to the Heavy and
Highway Agreements, and with the Iron Workers, by uni-
laterally withdrawing in an untimely and ineffective manner
from the Council, and by refusing to be bound by the afore-
mentioned contracts to which I have already found it to be
obligated. Additionally, it is alleged that Respondent has
refused to bargain collectively by allegedly rendering un-
lawful aid, support, and assistance to District 50, executing
a contract with it in behalf of employees being represented
and bargained for by the charging unions herein, and by
urgings and threats and solicitation to employees in behalf
of District 50 as a condition of continued employment.
Bearing in mind that I have already concluded and found
that at all times relevant to the period covered by the allega-
tions of the complaint, Respondent was covered by the
Heavy and Highway Agreements and its agreement with the
Iron Workers, it is obvious that the actions which Respon-
dent is alleged to have taken with respect to its employees
and with respect to District 50 are implicitly part and parcel
of its responsibilities under, or claimed release from, the
terms of the Heavy and Highway Agreements and its agree-
ment with the Iron Workers, and I so conclude and find.
Conclusions
Each of the contracts involved herein contain certain
grievance procedures which contemplate ultimate recourse
to arbitration .5 At the hearing in this matter Respondent's
president , Dean Lewis , testified without contradiction that
prior to November 3, 1972, none of the signatories to any
5 The full text of the grievance and arbitration procedure of the 1970-72
Continued
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the agreements ever filed a grievance or request for arbi-
tration on any dispute they had with the Company under
the contracts . In a similar vein Lawrence E. Burgess, the
Iron Workers' financial secretary and treasurer , was ques-
tioned on cross-examination concerning the presence, on
November 15, 1971, of men on one of Respondent's jobs
who were not members of his Union , as required by the
contract . When asked if he filed a grievance against the
Company pursuant to the grievance procedure he replied
that he had not.
From all of the foregoing, therefore, it is apparent that (1)
there was available an appropriate procedure for the settle-
ment of disputes arising under the contracts which I have
found to be in full force and effect, and (2) the parties to
the dispute were aware of this but did not, or would not,
avail themselves of it . Such being the case there remains for
determination whether the subjects at issue were proper
subjects for resolution under this procedure , as items of
contract determination.
A review of the pleadings and the entire record herein
discloses that basic to the dispute among the parties is the
alleged breach by Respondent of the outstanding contracts
by its execution on or about November 3, 1971, of an agree-
ment with District 50 which it is alleged constituted unlaw-
ful interference , restraint, and coercion of its employees in
violation of Section 8(aX I) of the Act, unlawful aid, assis-
tance, and support to District 50, in violation of Section
8(aX2), and a refusal to bargain collectively with the charg-
ing unions, in violation of Section 8(a)(5). There is likewise
evidence in support of allegations that in numerous individ-
Heavy and Highway Agreements are identical , as follows-
Article Vlll
Grievances and Arbitration
Section 1 . With the exception of failure to pay scheduled wage rates or
payments required by Article VII or violation of Article 11 of Section
1, all provisions of this contract shall be subject to Arbitration . Pending,
during and after arbitration , there shall be neither a lockout by the
Employer nor a work stoppage by the employees . The decision of the
board of arbitration shall be final and binding on the parties hereto.
Section 2 All grievances, disputes or claims which may arise with re-
spect to wages , hours or conditions of employment or the enforcement
or interpretation of any of the terms of this Agreement are to be prompt-
ly processed and settled in accordance with the provisions of this Article
Should any such dispute arise which cannot be adjusted between the
contractor involved and the Union, it shall be taken up between a
representative or representatives of the Union and a representative or
representatives of the Constructors' Labor Council of West Virginia,
Inc.
Section 3 . Any complaint or grievance will be barred if not presented
within ten ( 10) days after such a complaint or grievance originated in
the event the dispute is not settled within seven (7) days, either the
contractor or the Union may refer the matter to arbitration at any time
within ten ( 10) days after the meeting of the Union representative or
Council representative by mailing written notice of intention to arbitrate
to the other party . If no written notice of intention to arbitrate is given
within the time and manner prescribed (unless longer times are mutually
agreed upon), the grievance shall be conclusively presumed to be aban-
doned The written notice shall name an arbitration representative, the
other party shall immediately thereafter name an arbitration representa-
tive. The Employer and the Union arbitration representatives shall then
seek to agree upon an impartial arbitrator . If within five (5) days after
the notice of intention to arbitrate has been mailed , no impartial arbitra-
tor has been agreed upon , the Union and Employer representatives shall
write to Federal Mediation and Conciliation Service , Washington, D C
requesting a panel of five (5) arbitrators Upon receipt of the panel, the
ual instances Respondent communicated to its employees
its determination to bargain with District 50 and to operate
under a contract with it, and its insistence that its employees
join District 50 as a condition of further employment. From
my review of the evidence with respect to the individual
instances alleged, and from my earlier conclusion that the
contracts between Respondent and the charging unions
were in full force and effect these allegations would appear
to have merit. Quite apart from this, however, there remains
for consideration the equally fundamental question of
whether the employees who were alleged to have been dis-
criminatorily deprived of their employment were the victims
of Respondent's failure and refusal to abide by the hiring
requirements of the contract, or were on strike in protest of
its recognition of District 50. In either case the employees'
claim against Respondent is bottomed upon the contract as
well as upon the proscriptions of the contract, and I so
conclude and find.
Finding as I do that a resolution of the termination as-
pects of the complaint flow from a breach of the existing
contract, and recognizing in those contracts adequate ma-
chinery for the remedying of such a breach, the Board's
current policies in such mattersi.become significant.
In Collyer Insulated Wire, 192 NLRB 837, the Board held
that disputes over interpretations of the contract can best be
resolved by the use of the method provided for in the con-
tract itself, where such contract contains grievance-arbitra-
tion procedures, as do the instant ones. Also included in the
instant contracts are lawful union-security provisions, the
Highway and Heavy Agreements and the Iron Workers
Agreements, each stating that as a condition of employment
after the eighth day of employment each employee will be
Union and Employer arbitration representatives shall alternately strike
names until the panel has been reduced to one (1) person who shall then
be requested to serve as impartial arbitrator, should he be unable to
serve , a new panel of five (5) shall be requested from FMCS.
Section 4. The impartial arbitrator shall be the chairman of the arbitra-
tion hearing and sole arbitrator of the dispute The decision of the
arbitrator shall be final and binding upon both the Employer and the
Union. The Union and the contractor will pay for their respective arbi-
tration representatives The expenses of conducting the arbitration hear-
ing, including the services of the impartial arbitrator, are to be shared
equally by the Employer and the Union
The full text of the Settlement of Dispute provision of the iron Workers
Agreement is as follows
B. Settlement of Disputes
Any dispute as to the proper interpretation of this Agreement shall be
handled in the first instance by a representative of the Union and the
Employer If they fail to reach a settlement within five (5) days the
dispute shall be referred to a Board of Arbitration composed of one (1)
person appointed by each party and a third member to be selected by
the two so appointed
In the event that the two appointed members are unable to agree on
the third member within two (2) days they shall jointly request the
Federal Mediation and Conciliation Service to furnish a panel of five
(5) names from which the third member shall be selected . The decision
of the Board of Arbitration shall be handed down within two (2) days
after the selection of the third member and the decision of the Board of
Arbitration shall be final and binding upon both parties
The Board of Arbitration shall have jurisdiction over all questions
involving the interpretation and application of any selection or this
Agreement It shall not, however , be empowered to handle negotiations
for a new agreement, changes in the wage scale , or jurisdictional dis-
putes.
Each party shall individually pay the expenses of the arbitrator it
appoints and the two parties shall jointly share the expense of the third
arbitrator
MOUNTAIN STATE CONST. CO. 1089
required to obtain and retain membership in good standing
in his respective union. Thus it is clear that the obligation
the Respondent had to retain in its employ the individuals
listed in the complaint, emanated from the union-security
provision in the respective contract, and more basically,
from the clause in each contract wherein Respondent recog-
nizes the charging unions as its employees ' bargaining rep-
resentatives.
Because the dispute as to the continued employment of
these individuals arises over Respondent 's alleged failure to
honor the contracts, which I have found to be in full force
and effect, I am precluded by the Board's policy from decid-
ing this dispute on the merits.
It is obvious , of course , that certain allegations of the
complaint, if proven, would, in these particular respects,
establish violations of Section 8(a)(1), (2), and (5) of the Act.
I refer to allegations of numerous instances of individual
communication to employees by Respondent's officers and
agents, urging them, threatening them, and soliciting them
in behalf of membership in District 50 as a condition of
further employment. It cannot be gainsaid that they also
partake of the same interpretive aspects as do the other
allegations , stemming as they do from Respondent's alleged
avoidance of its oglibations of the very contract which pro-
vides the mechanics for the settlement of grievances. But to
avoid the anomaly of deciding half of a case and deferring
to an arbitrator the other half, I shall withhold further con-
sideration of the merits of the complaint 7 Nor am I per-
suaded that the Board's contrary holding in Joseph T.
Ryerson & Sons, Inc., 199 NLRB No. 44, is applicable to the
situation here. There the Board viewed certain allegations
of the complaint as being unrelated to the interpretation of
the contract and not an arbitrable matter. Whereupon, after
due consideration of these allegations on the merits, it dis-
missed the complaint as to them, but deferred the remainder
of the complaint to arbitration in the manner prescribed by
Collyer. Should the allegations of the individual instances of
Section 8(a)(1) and (2) violations in the instant case be
- 6 Collyer Insulated Wire, supra,
r Cf National Radio Company, Inc, 198 NLRB No. I, Appalachian Power
Company, 198 NLRB No. 7; L.E.M., Inc., d/b/a Southwest Engraving Co.
and Towell Printing Co., 198 NLRB No 99
viewed, contrary to my finding, as unrelated to interpreta-
tions of the contract, it is to be further noted that, unlike the
allegations in Ryerson, these do appear to have merit. To
treat of them at this juncture would provide a complication
of remedy not presented by the dismissal in Ryerson, and
would develop an administrative hodgepodge inconsistent
with the effects being sought by Collyer in the first place.
In conclusion, therefore, it is my recommendation, for the
reasons stated above, that the entire matter herein, stem-
ming as it does from the existence of the disputed contracts
and their intepretation, not be considered on the merits at
this time.
THE REMEDY
Consistent with the Board's decision in Collyer, supra, it
will be recommended that the complaint be dismissed, but
that jurisdiction of the proceedings be retained by the Board
to entertain an appropriate and timely motion for further
consideration upon a proper showing that either (a) the
dispute has not, with reasonable promptness after the is-
suance of this Decision, either been resolved by amicable
settlement in the grievance procedure or submitted prompt-
ly to arbitration, (b) the dispute has been duly found by the
arbitrator not to be arbitrable, or (c) the grievance or arbi-
tration procedures have not been fair and regular or have
reached a result that is repugnant to the Act.
Upon the foregoing findings of fact and conclusions of
law and upon the entire record, pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER8
The complaint herein is hereby dismissed; provided how-
ever that jurisdiction of this proceeding is hereby retained
for the limited purposes indicated in that portion of this
Decision entitled "The Remedy."
8 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 , and conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes