National Dairy Products Corp.

National Labor Relations Board - Board Decisions

Feb 4, 1960

126 N.L.R.B. 434 (N.L.R.B. 1960)

434 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Dairy Products Corporation , Detroit Creamery Divi-
sion and United Dairy Workers Local No. 83 , AFL-CIO. Case
No. 7-CA-f161. February 4, 1960
DECISION AND ORDER
On September 25, 1959, Trial Examiner George A. Downing issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in any unfair labor practices and
recommending that the complaint be dismissed in its entirety, as set
forth in the copy of the Intermediate Report attached hereto. There-
after, the General Counsel filed exceptions to the Intermediate Report
and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Bean and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the General Counsel's exceptions and brief, and
the entire record in this case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner, with the fol-
lowing modifications.
We agree with the Trial Examiner that the dispute, which gave rise
to the Union's charge of a refusal to bargain by the Respondent, is
solely one of contract interpretation. The dispute arose when the
Respondent told the Union that, in the interest of economy, it intended
to subcontract its milk hauling operations, which were being per-
formed by employees covered by the current contract with the Union.
The Union immediately filed a grievance asserting that this would
constitute a violation of the contract. The Respondent took the posi-
tion that the matter was not properly grievable under the terms of
the contract in view of the facts that the contract contained no pro-
vision pertaining to subcontracting; that the State court had held,
in a proceeding instituted by the Union, that subcontracting was not
arbitrable under the preceding contract between the parties, which
was similar in all relevant respects to the current contract; and that
the Union, subsequent to that decision, had attempted, unsuccessfully,,
to obtain inclusion of a subcontracting provision in the current
contract.
The Union ,continued to maintain that the matter was grievable,,
and submitted the dispute to the United States district court under
Section 301 of the Act, alleging that the Respondent's refusal to arbi-
trate the grievance was a violation of the contract. The Union like-
126 NLRB No. 62.
NATIONAL DAIRY PRODUCTS CORPORATION, ETC. 435
wise instituted the instant proceeding on the basis that the Respondent
breached the contract by refusing to process its grievance, and the
case was tried on that basis.
It is clear from all the facts that the dispute between the Union and
the Respondent was concerned solely with the interpretation of their
contract, and that the parties so viewed the dispute. There is no
showing that the Respondent, in interpreting the contract as it did,
was motivated by union animus or was acting in bad faith. Under
all the circumstances, and in accord with the established policy that
the Board is not the proper forum for parties seeking to remedy an
alleged breach of contract, we find that the Respondent has not re-
fused to bargain with the Union within the meaning of Section
8 (a) (5) and (1) of the Act.' We shall therefore dismiss the
complaint.
[The Board dismissed the complaint.]
i United Telephone Company of the West, et al , 112 NLRB 779 See also Timken
Roller Bearing Co. v N.L R B. 161 F 2d 949, 9,55 (C A 6), Nihere the court found a
dispute between parties to a collective -bargaining agreement over whether subcontracting
was properly a subject for grievance under the agreement to be a matter of contract
interpretation.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act as amended (61 Stat. 136), was heard at Detroit, Michigan, on June 22-23, 1959,
pursuant to due notice and with all parties represented by counsel. The complaint,
issued by the General Counsel of the National Labor Relations Board and based
on charges duly filed and served, alleged in substance that Respondent had refused
to bargain with the Union, in violation of Section 8(a)(5) and (1) of the Act, by
refusing to process and arbitrate a grievance presented by the Union on May 9,
1959, concerning Respondent's subcontracting of a certain tank haul to and from
Alma, Michigan, on which arbitration was required under the terms of a contract
between the parties.
By its answer filed May 25, 1959, Respondent admitted that it had refused to
process the grievance, but averred that it did not concern any matter which was
arbitrable under the contract, that the contract expressly recognized Respondent's
right to discontinue the operation, and that Respondent had in fact bargained with
the Union concerning the effect of its action upon employee tenure as provided in
the contract. Respondent also averred that its position that the grievance did not
present an arbitrable issue was upheld in a State court action (to be later more fully
referred to) which involved a contract virtually identical with the one currently in
effect between the parties.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE COMPANY 'S BUSINESS; THE UNION AS A LABOR ORGANIZATION
I find on facts admitted in the answer that Respondent is engaged in commerce
within the meaning of the Act ( i.e., annual extrastate sales or shipments in excess of
$50,000 ), and that the Union is a labor organization within the meaning of Section
2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The issue; the evidence
The sole issue herein is whether arbitration was required under the terms of the
contract.of the Union's grievance filed on May 9, 1958, protesting the discontinuance
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and subcontracting of a milk tank haul from Alma to Detroit, Respondent admitting
its refusal to process the grievance, but pleading that it was not an arbitrable one
under the contract. There is no issue as to the appropriate unit or as to the Union's
representative status. As a matter of contract interpretation is involved, we start
appropriately with the contract provisions.'
The contract contained a detailed grievance procedure, with a provision for
arbitration as the ultimate step, for any unsettled dispute, claim, or grievance arising
out of or relating to the contract Though there was no management prerogative
clause, there was also no clause which purported to limit the Company's right to
manage or direct its operations. There was also no limitation on the Company's
right to rearrange, discontinue, or abolish any operation or job, but there was ex-
press provision that the Company would notify the grievance committee 72 hours
before the abolition, discontinuance, or rearrangement of any job or operation.
There were also specific provisions for "bumping" rights of employees who might
be affected by such action.
We turn now to the history of Respondent's operations as concerned country milk
hauling and to the experience of the parties under the contract in relation to the
abolition of those hauls.
In past years much of the milk which Respondent processed at Detroit was re-
ceived from the producers at country milk stations where it was cooled and stored
preliminary to transportation to Detroit or elsewhere by Respondent's employees
and equipment. In the 10 or 12 years prior to May 1958, Respondent had operated
some 15 such receiving stations. Since January 1, 1955, or 1956, however, Re-
spondent had discontinued all such stations, other than the one at Alma, from which
the hauling was being done in part by some nine of the employees at Detroit,
represented by Local 83, and in part by two former employees of Respondent's
processing plant at Ovid, which had been discontinued on July 1, 1957, and with
which the Alma station has previously operated as part of the same unit. The latter
employees were represented by Local 86 of the Retail, Wholesale, and Department
Stores Union.
The country stations were discontinued in part because the problem of insuring
an adequate milk supply had changed from one of shortage to one of surplus and in
part because Respondent's transportation costs substantially exceeded those of its
competitors, who had also closed their receiving stations. For example, Respond-
ent's cost of transportation from Alma to Detroit was 30 cents a hundred weight,
while its competitors were paying 19 cents a hundred to independent contractors
for an equivalent distance (135 miles) as fixed by the Federal Milk Marketing Order.
There were no negotiations between Respondent and the Union concerning the
closing of the other stations, and the evidence does not indicate that the Union made
any protests, sought to process any grievance, or sought arbitration. The affected
drivers simply exercised their bumping rights under the contract. The Union did,
however, protest the Company's action in 1956 of discontinuing its iceless refrigera-
tion department in Detroit and the subcontracting of the work to independent con-
tractors, and when the Company refused to entertain the grievance, on substantially
the same grounds as here, the Union brought-and lost-a State court action in
which it sought to compel arbitration under a prior contract which contained griev-
ance and arbitrations provisions broader in scope to those here involved. United
Dairy Workers Local No. 83 v. Detroit Creamery Company (Michigan Circuit
Court, Wayne County), 38 LRRM 2303. The opinion in that case concluded:
If the Union desires to make subcontracting an arbitrable issue, they will have
to make it a part of their next contract.
The Union made the attempt which the court suggested by including in the de-
mands which it submitted in negotiation of the present contract a clause under which
the Company would agree that "it will not sub-let, sub-contract, assign, lease or in
any manner transfer any of its operations or processes performed within the bar-
gaining umt during the term of this Agreement or its extension or extensions without
the prior consent and approval, in writing, of the Union." Respondent rejected the
proposal, on the ground that the restrictive clause which the Union proposed would
infringe upon the Company's prerogative to direct its operation in the best possible
manner.
We now reach the events which immediately concern the discontinuance of the
Alma run.
1 The complaint specifically charged, and the answer specifically denied, that the
grievance was one on which arbitration was required under the contract terms, and the
General Counsel conceded at the hearing that that was the issue. In his brief, however,
General Counsel argues that no question of contract interpretation Is involved.
NATIONAL DAIRY PRODUCTS CORPORATION, ETC. 437
On or about May 7, the Company posted on the bulletin board a notice that "Ef-
fective May 11, 1958, the Company Alma Milk runs will be discontinued." On
May 9, Earl Ledford, chief steward, filed a formal grievance with the Company in
the following language:
This grievance is being filed in protest of the Company's notice to the Union
that the tank haul runs to and from the Alma station will be discontinued, ef-
fective Sunday, May 11th, 1958. The Union's position is that this work is still
available and the Company is attempting to circumvent the contract. (Article
V, Section 15, page 37.)
On May 10, the Company delivered to Ledford a letter acknowledging receipt of
the grievance and stating:
This is to advise that the Company will not entertain such proposed complaint
and grievance, since the matter of which you complain is not properly the sub-
ject of a grievance under the collective bargaining agreement.
The Company's right to determine the method and manner of conducting
its operations is one of the exclusive rights of the Company, and the action
taken by it is consonant with such rights and has been taken in good faith.
On May 21, the Union filed a complaint in the United States district court under
Section 301 of the Labor Management Relations Act, charging that Respondent
had violated the contract by refusing to follow the grievance procedure, and it
sought to compel Respondent to arbitrate its grievance. Respondent answered sub-
stantially as here, denying that its discontinuance of the Alma run presented an
arbitrable issue under the contract and averring that its action was a lawful exercise
of a management prerogative which was in no wise restricted by the contract. The
case is presently pending on the pretrial docket.
On November 7 (6 months to the day from the Company's notice regarding
Alma) the Union filed its charge in the present proceeding.
The only conflicting testimony in the record concerns the extent to which the
contemplated action concerning Alma was discussed between Company and Union
prior to May 7, particularly in a meeting on April 25, at which the Company out-
lined its plans concerning an overall reduction of operating costs for the Detroit
division. Ledford admitted that the Company had discussed with him several times
the hours on the Alma run, contending the hours were too high and that it wanted
to get the hauling done at a cheaper rate, but he testified that those discussions
were on an informal basis and were not during any meeting with the Union or the
grievance committee.
As to the April 25 meeting, Ledford testified that, having previously heard
rumors concerning the abolition of the Alma run, he requested Donald Faller
(assistant general manager of the Detroit milk district) to discuss the subject to
see whether the run could be put on an efficient working basis, that Faller stated the
Company did not want to discuss it and had already made other arrangements,
and that there was no other reference to Alma during the meeting. Testimony to
similar effect was given by Michael Sands, Everett Reed, and Archibald Smith,
union committeemen, though their testimony varied substantially on details. Sands
testified, for example, that Ledford's request was made at the end of the meeting,
and Reed testified that it was made at the beginning. Reed did not recall that
Sands was present, and both of them questioned Eichhorn's presence for the Com-
pany. Smith testified that he thought he remembered a meeting on April 25, but
could not state who was present, and testified to nothing except Ledford's reference
to Alma and Faller's response.
Faller testified that the meeting followed earlier meetings on April 21 at which
David Falconer (general manager of the Detroit operation) had outlined the
Company's plans to effect economies; that he read Falconer's statement of April 21
and told the union representatives that Eichhorn would elaborate on the changes to
be made in the transportation department and Hoyt on the changes in the plant.
Faller also announced that the Company was going out of the hauling business and
that the Alma run would be discontinued somewhere between May 10 and June 1,
though arrangements were not completed. Ledford asked whether the operation
was being discontinued because of inefficiency or economy, and he answered, "Yes."
The question was then put who was going to haul the milk, and Faller replied that
the Company had not completed its arrangements, but had talked with Michigan
Milk Producers' Association (which hauled for its competitors) and was also con-
sidering an independent contractor in the Alma-Ovid area as well as several others.
Faller recalled no further request by Ledford to sit down and discuss the matter.
,On cross-examination by the Union, Faller emphatically affirmed the correctness
of his testimony, claiming corroboration by minutes taken at the meeting by
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's secretary. On the Union's request, Faller produced a copy of the
minutes, and they were received in evidence on the Union's offer, without objection
from the General Counsel. They plainly corroborated Faller's testimony.
There was further persuasive evidence corroborative of Faller. Thus Ledford
admitted that his prior affidavit to the Board relating to the April 25 meeting con-
tained the following statement: "We talked about the jobs in the garage, because
of certain country milk hauls being eliminated they didn't need regular service, and
they wouldn't have the amount of tractors and heavy equipment to maintain."
Ledford admitted that Alma was the only country haul at the time.
Faller's testimony is therefore credited as to the April 25 meeting.
The facts concerning the subcontracting of the Alma haul should be briefly noted.
After negotiations beginning around April 15, Respondent finally contracted around
May 7 with Waldo Richards (a former truckdriver at Ovid-Alma) to take over
the Alma hauling under a lease agreement of some of Respondent's equipment and
under which Richards received a flat 19 cents per hundred, the rate established
by the Federal Milk Marketing Order.2 Though General Counsel and Union
endeavored at the hearing to develop evidence that Richards did not in fact become
an independent contractor, they were unsuccessful; and since their briefs proceed
on the theory that there was an actual subcontracting of the haul (as both com-
plaint and charge allege), the evidence need not be summarized.
Note should also be taken of the negotiations concerning the displaced drivers.
The evidence is not in conflict that some time after May 11, Company and Union
discussed and settled the question of their rights. Ledford admitted that the Union
discussed with the Company how those drivers would work back into other jobs,
and that in fact the entire transportation department was rearranged. It was agreed
that the contract bumping procedure would be followed, and some of the men down
the line were actually laid off as an end result. Ledford testified, however, that no
grievance was filed by or on behalf of any employee, and that it was understood
that the Union would file a single grievance, the one which he filed.
B. Concluding findings
The history of the bargaining relationship concerning the country milk hauls and
the closing of the receiving stations showed that, until Alma was reached, the Union
had apparently conceded Respondent's right to discontinue such operations, subject
only to the 72-hour notice requirement and observance of the bumping provisions
contained in the contract. There were then no indications of disputed interpreta-
tions, the Union having acquiesced in Respondent's position that the abolition of
the country milk hauls was within the prerogatives of management, circumscribed
only by the notice and bumping provisions. And the evidence here plainly estab-
lished that those provisions were complied with circumspectly in abolishing the
Alma haul.
Did Respondent's obligation to bargain extend further than that, to include in
Alma's case the duty to process and to arbitrate the Union's grievance concerning
the actual discontinuance of the run?
As union counsel conceded in oral argument that the Company had a right to
discontinue all the other country hauls, we inquire whether there were matters of
crucial distinction between Alma (the last leaf) and the earlier cases. What is point-
ed to and relied upon is the fact that Respondent did not actually shut down the
Alma station and that it subcontracted the hauling to an independent contractor.
Undoubtedly that would have made a great difference in the usual situation, for then
the various cases upon which General Counsel and Union rely 3 would become
2 Respondent thus brought its hauling costs In line with those of its competitors.
Though Respondent offered projected calculations which it had made of its anticipated
savings 'tinder an independent contractor arrangement, as well as a calculation of its
actual savings after 1 year of operation, the evidence is material only as to good faith
and soundness of judgment
3 Such as , for example , Timken Roller Bearing Co , 70 NLRB 500 , enforcement denied
161 F. 2d 949 (C A. 6) ; Jacobs Manufacturing Company, 94 NLRB 1214, 1225 ; Shamrock
Dairy, Inc., at al., 119 NLRB 998; Local 24, International Brotherhood of Teamsters, etc,
AFL-CIO v. Oliver, at al., 358 U.S 283; W. L. Mead Inc., 113 NLRB 1040; International
Union, United Mine Workers et al. (Boone County Coal Corporation, et al. ), 117 NLRB
1095; Westmoreland Coal Company, et al, 117 NLRB 1072.
The last case, though cited in oral argument, was omitted from the General Counsel's
brief, presumably because the Board recognized crucial distinctions (footnote 5, at p 1075)
between it 'and United Telephone Company of the West, at al., supra, discussed infra.
NATIONAL DAIRY PRODUCTS CORPORATION, ETC. 439
applicable and probably controlling. In the present case, however, the situation
changed from one where the Union did not dispute Respondent's interpretation of
the contract to one where it advanced a conflicting interpretation.
But that fact, too, may not alone have rendered inapposite the cases cited above.
What was finally of controlling significance was that the Union promptly brought,
in a court of competent jurisdiction (see Section 301), an action which, seeking to
compel arbitration, will resolve the question whether the Union's grievance embodies
a matter which was arbitrable under the contract-the very issue which is present
here .4
Certainly it is plain that Respondent's position was taken in all good faith. Indeed,
its position had been directly upheld in the Union's first test in the State court action
(not appealed by the Union), which involved essentially the same issue which the
Union is litigating anew in the Federal court. But whether the Company is right or
wrong, the history of the bargaining relationship and the litigation on the subject
plainly showed that there was a sound arguable basis for Respondent's interpreta-
tion. And, of course, the Board does not ordinarily exercise its jurisdiction to
resolve conflicts regarding which party has correctly interpreted the contract.
United Telephone Company, or al., supra, at 781. As the Board has held for many
years, with the approval of the courts, it will not effectuate the statutory policy for
the Board to assume the role of policing collective-bargaining contracts between
employer and labor organizations by attempting to decide whether disputes as to the
meaning and administration of such contracts constitute unfair labor practices under
the Act. Id, Consolidated Aircraft Corporation, 47 NLRB 694, 706; Morton Salt
Company, 1'19 NLRB 1402, 1403.
Respondent's refusal to arbitrate the dispute did not, under the circumstances here,
constitute a refusal to bargain within the meaning of the Act. The Union has
brought its action seeking judicial enforcement of its construction of the contract,
United Telephone Company of the West, et al, supra, at 782, and judgment there
will definitely settle the issue whether the grievance was arbitrable. In any case,
the Board does not hold that a failure to arbitrate a dispute is in itself a refusal to
bargain in violation of the Act. Id., McDonnell Aircraft Corporation, 109 NLRB
930; Textron Puerto Rico (Tricot Division), 107 NLRB 583. Certainly the Board
is not the proper forum for parties to obtain specific enforcement or to seek to
remedy an alleged breach of contract. United Telephone Company of the West,
et al., supra; and see Association of Westinghouse Salaried Employees v. Westing-
house Electric Corp, 348 U.S. 437, footnote 2, where the Supreme Court pointed out
that breach of contract is not an unfair labor practice, quoting from a conference
report on the legislation, "Once parties have made a collective bargaining contract
the enforcement of that contract should be left to the usual processes of the law and
not to the National Labor Relations Board."
United Telephone, cited at various points above, is plainly controlling here. There
the conflicting interpretations concerned the Company's right to make changes in
weekly working hours, a matter which more clearly qualified as a mandatory subject
of bargaining (see Section 8(d)) than that here involved. There, as here, the union
proposed arbitration. The company suggested instead a suit for declaratory judg-
ment, and actually filed one (without the union's consent) which was pending at the
time of the hearing. The Board's language fits as patly as if written for the
present case:
The complaint alleges no violation of the Act other than the one arising out
of the parties conflicting contract interpretations. It is obvious from the con-
flicting interpretations of the parties that the contract was not sufficiently clear
to avoid a dispute over its terms. There is no showing that Respondents, in
carrying out the contract as they did, were acting in bad faith.
The Board concluded that the company's failure to arbitrate the dispute did not
constitute a refusal to bargain, holding that, failing agreement with the company,
the union should have sought judicial enforcement of its construction of the contract.
4 The Union's position on the finality of the judgment which it seeks in the arbitration
action is anomalous Though union counsel conceded in oral argument that a judgment
In its favor would dispose of the merits of the present proceeding, he would not concede the
same as to an unfavorable ruling. At one point his brief explains that the Union filed its
charge herein to protect its position in event the court should rule with the Company
because, "A decision by the court adverse to the Union would not relieve the Company from
Its violation of the Act." Elsewhere, however, the argument Is made that Respondent is
guilty of a refusal to bargain whether it was right or wrong in Its contention that the
dispute was not arbitrable under the contract.
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That was precisely the action which the Union took here. "Inasmuch as the issue
of construction of the contract is now pending before a court of [competent] juris-
diction no valid reason exists for the Board to enter this controversy." Id., at 780.
There has been no indication of impairment of United Telephone as a precedent.
Indeed, the Board cited and relied upon it in Morton Salt Co., supra. And see Scott
Lumber Company, Inc, 117 NLRB 1790, 1825. Furthermore, though the exact
impact of the case is yet to be measured, it is plain that the holding in the Telephone
case has been greatly strengthened by Textile Workers Union of America, AFL-CIO
V. Lincoln Mills of Alabama, 353 U.S. 448, 456, where the Supreme Court held that
in Section 301 actions the Federal courts are empowered to fashion a body of
Federal law from the policy of the national labor laws and to decree specific
performance of agreements to arbitrate grievance disputes.
Though the above findings have disposed of the refusal to bargain issue, there
remain certain arguments which should be noted. Basic to General Counsel's
theory throughout is his contention that the grievance here "clearly related to the
contract," and he asks that "the parties be required to pursue the channelized pro-
cedure for settling disputes in respect to the grievance." But that, of course, begs
the very question which is at issue-whether the "channelized procedure" was one
which was applicable to the grievance. On that basic fallacy is the foundation of all
of the General Counsel's argument, rendering inapposite the cases upon which he
relies. Three examples will suffice.
In International Union, United Mine Workers, et al. (Boone County Coal Corpo-
ration et al.), supra., the Board found a no-strike commitment, despite absence of
a no-strike clause, where the contract contained grievance and arbitration procedures
under which disputes not settled by agreement were to be settled. The Board held
that the contract excluded the right to strike over disputes which were cognizable
under the grievance machinery. See 39 LRR analysis 97 (Vol. 39, No. 49).
Pursuit of the same fallacy is apparent from the General Counsel's own summary
of W. L. Mead Inc., supra., i.e., "The Board found a grievance and arbitration
procedure tantamount to a no-strike clause. The Board found that a strike over
a grievable matter without going through contractual grievance and arbitration proc-
esses to be unprotected." [Emphasis supplied.] The same is true of his summary
of Local No. 611, International Chemical Workers' Union, AFL-CIO, et al. (Purex
Corporation Limited), 123 NLRB 1507, as follows: "The Board accepted the
rationale of the Sixth Circuit in Knight Morley Corp., 251 F. 2d 753; and Timken
Roller Bearing Co., 161 F. 2d 949, that if a matter is a grievance, it is to be settled
by the grievance procedure, that the contract provides a framework within which
collective bargaining is to be pursued." [Emphasis supplied.]
Although the General Counsel also argues, correctly of course, that an employer
may not decide unilaterally what is or is not a grievance, it is just as true that neither
side can do so. Thus, the fact that the Union may advance a purported grievance in
good faith or through suspicion or ignorance of an employer's motives will not lift
the matter to grievable status if in fact it concerned something which was not
cognizable under existing contract procedures.
As the evidence showed that Company and Union conferred on and settled all
questions of employee tenure resulting from the discontinuance of the Alma haul,
the holding in such cases as Shamrock Dairy, Inc., et al., 119 NLRB 998, 1007, was
met, i.e., "the Respondent was obligated to bargain with the Union with respect to
the effect of the adoption of the independent distributorship system upon employee
tenure." 5 [Emphasis supplied.] So far as the merits of the grievance went, Re-
spondent's rejection letter fully explained to the Union its position on the matter.
Jacobs Manufacturing Company, supra, at 1225.
Though all parties argued the question whether the Union had in fact waived its
right to bargain about subcontracting per se, that is a matter which bears directly
upon the correctness of the respective interpretations of the contract, and need not,
therefore, be determined under the issues as framed by the pleadings herein, though
it may well be one which the Federal court will necessarily consider in determining
whether the Union's grievance was an arbitrable one under the contract terms.
It is concluded and found, for the foregoing reasons, that Respondent did not
engage in unfair labor practices as charged in the complaint.
[Recommendations omitted from publication.]
5 That statement presumably remains the majority holding of the Board , though the
point is not free from doubt in view of the division among the members on the decision on
remand (124 NLRB 494) from the court of appeals.