National Radio Co., Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1972

198 N.L.R.B. 527 (N.L.R.B. 1972)

NATIONAL RADIO COMPANY, INC. 527
National Radio Company, Inc. and Local No. 231,
International Union of Electrical, Radio & Machine
Workers, AFL-CIO. Case 1-CA-6991
July 31, 1972
DECISION AND ORDER
On July 13, 1970, Trial Examiner Lloyd Buchanan
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended , and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner 's Decision. The
Trial Examiner also found that Respondent had not
engaged in certain other unfair labor practices
alleged in the complaint and recommended that
these allegations be dismissed . Thereafter, Respon-
dent and the General Counsel filed exceptions to the
Trial Examiner's Decision and supporting briefs. The
Union filed a brief in answer to Respondent's
exceptions.
The National Labor Relations Board has reviewed
the rulings of the Trial Examiner made at the hearing
and finds that , except for the Trial Examiner 's denial
of Respondent ' s motion to defer to arbitration, no
prejudicial error was committed . The rulings, with
this exception , are hereby affirmed.
The Board has considered the Trial Examiner's
Decision , the exceptions , the briefs , and the entire
record in this case, and finds merit in certain of
Respondent 's exceptions . Accordingly, the Board
adopts the findings , conclusions , and recommenda-
tions of the Trial Examiner only to the extent
consistent herewith.
The complaint alleged and the General Counsel
contends that Respondent refused to bargain in good
faith , in violation of Section 8(a)(5) of the Act: (1) by
unilaterally imposing a condition that union repre-
sentatives record and report their movements in the
plant while processing grievances on compensated
time ; (2) by failing to comply with a contractual
commitment to reinstate a service awards program
for employees with 25 years' employment; (3) by
failing to print and distribute to all employees copies
of the current collective-bargaining agreement; and
(4) by failing to implement an agreed upon system of
warning rules with respect to employee discipline. It
is also alleged and contended that Respondent
violated Section 8(a)(3) by its disciplinary suspen-
sion, and then discharge , of an employee and union
representative . The employee was discharged for his
admitted refusal to comply with the reporting
requirements established by Respondent. With a
single exception , the Trial Examiner found the
198 NLRB No. 1
violations stated above: he found no violation arising
from the fact that the disciplinary warning system
had not been implemented at the time of hearing.
Respondent excepts to these findings principally
on the grounds that the alleged violations involve
disputes arising under the collective-bargaining
contract between the parties, that those disputes were
subject to grievance and arbitration proceedings
under the contract, and that the principal dispute has
been submitted to an arbitrator for final decision.
For that reason, Respondent asserts the Board
should withhold exercise of its remedial authority in
deference to the dispute settlement mechanism
agreed upon between the parties. We find merit in
that exception.
1. The Union has represented the production and
maintenance employees at Respondent's radio man-
ufacturing plant for 18 years. The relationship
between the parties has been harmonious and
productive but was marred by an economic strike,
the Union's first, in August 1969. The current
collective-bargaining agreement between the parties
provides, inter alia, that Respondent shall pay union
representatives for time lost in settling grievances
and that the representatives "shall be permitted free
movement within the plant area for which they are
responsible" in handling grievances. The contract
also contains a management rights clause which
provides, in relevant part, that "the management of
the plant and the direction of the working forces,
including the right to . . . establish rules pertaimng
to the operation of the plant, is vested in the
Company . . . . Complaints that the Company has
violated the terms of this paragraph may be subject
to the grievance procedure." Finally, the contract
provides a four-step grievance procedure culminating
in mandatory arbitration of "any differences or
disputes between the parties as to the interpretation
of the terms of the contract which cannot be adjusted
through the grievance procedure." The central issue
here, the propriety of Respondent's imposition of a
reporting requirement and subsequent efforts to
enforce it, turns upon the meaning and application of
these contract clauses, and the parties' experience in
applying them.
The Trial Examiner found that Respondent violat-
ed Section 8(a)(5) of the Act by unilaterally institut-
ing a plant rule requiring union representatives to
report to their supervisors upon leaving their work
areas to conduct grievance business for the Union.
The Trial Examiner also found that the discipline
and discharge of employee William O'Connell for
refusal to comply with the reporting rule violated
Section 8(a)(3) of the Act. We find merit in
Respondent's exception to the Trial Examiner's
failure to stay this proceeding pending outcome of
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the parties' contractual grievance-arbitration proce-
dure.
O'Connell, an electronic technician, had been
employed by Respondent since 1952. During all that
time he had been an active union adherent, had
participated in grievance handling, and had, for the
Union, negotiated all but two of the contracts
between the parties. He had been president of the
Union for 5 years prior to his discharge, and during
that time he personally had performed virtually all of
the Union's grievance handling duties. The contract
provided for compensation for union officials for
time spent on grievance duties, subject to certain
limitations:
Section 2. Required time lost by the Union
Stewards or other representatives in settling
grievances shall be paid for by the Company
except that no such grievance time will be paid in
excess of two (2) hours per week for Stewards and
members of the Grievance Committee and four
(4) hours per week for the President, Vice-
President and Chief Stewards. If in any week the
stewards do not use the two hours above
provided, the above maximum time allowed for
the President, Vice-President and Chief Stewards
shall be increased for that week by the amount of
time not used by the Stewards that week. The
Company shall supply the Union with all neces-
sary information in connection with grievances.
Section 3. Stewards and Local Union officials
and two (2) members of the Grievance Committee
shall be permitted free movement within the plant
area for which they are responsible.
Section 4. No Union business other than
grievances shall be conducted on the Company's
time.
It appears that O'Connell's representative duties
involved not merely step 4 grievances, as provided by
the contract, but also grievances at steps 1, 2, and 3
which, under the contract, are to be handled by
stewards and grievance committee men.' Indeed,
O'Connell testified that much of the compensated
time he spent on union business was related to the
"prevention" of grievances, rather than to the filing
or processing of grievances. O'Connell spent 1,195
compensated hours on such duties in 1969, and 1,520
such hours in 1968. Prior to the events herein
Respondent made no objection to the scope of
O'Connell's activities, or to the amount of time they
consumed. So far as the record shows, the only
previous discussion of O'Connell's activities occurred
in September 1969 when O'Connell was asked by
Miller, then O'Connell's supervisor, to keep a record
of the times when O'Connell was away from work on
grievance business. O'Connell failed to keep the
requested record, but was not disciplined for such
failure.
Thereafter, on December 10, 1969, Miller instruct-
ed O'Connell that upon leaving his work area to
handle grievances he was to tell Miller where he was
going and approximately how long he would be, and
to notify Miller upon his return to the department.
Later that same day O'Connell received a written
warning for failing to notify Miller when he went to
another plant on the premises on a grievance
matter.2 O'Connell filed a grievance the same day,
1 The full text of the Grievances Article is as follows
Article XIV--Gnevances
Section 1 . Any dispute or grievance that may anse between the
Union and the Company shall be taken up as promptly as possible as
follows
Step I . Between the aggrieved employee and the department
foreman . The aggrieved employee may be accompanied by the
department steward if he desires . If no satisfactory settlement is
reached between them in twenty-four (24) hours then
Step 2 Between the Chief Steward and Department Steward and
the Plant Superintendent and Department Foreman Following Step 2
in the above procedure grievances and answers thereto within the time
limits specified will be in writing and signed by proper officials.
If no satisfactory settlement is reached between them in twenty-four
(24) hours following Step 2, then
Step 3. The Grievance Committee (consisting of the Chief Steward
of the plant involved and one ( 1) committeeman from each plant) shall
meet with the Plant Superintendent involved, a representative of the
Industrial , Relations Department and one ( 1) other person designated
by the Management , to attempt to resolve all grievances not settled by
Step 2. The meetings shall be scheduled for Thursday at 2.00 p.m. if
such grievances apse
If no satisfactory settlement is reached, then
Step 4 The Union President , Vice-President , Chief Steward
involved and Department Steward involved shall meet with the Plant
Superintendent involved , a representative of the Industrial Relations
Department, and two (2) other Management designees and attempt to
resolve all grievances not settled by Step 3 Such meetings shall be
scheduled not later than one (1) week after failure to reach agreement
in Step 3
Meeting days may be changed by mutual agreement, and a
representative of the International Union may be called in to take part
in the grievance procedure under Step 4. If no satisfactory settlement is
arrived at, either party may submit the matter to arbitration as
hereinafter provided In the event that any of the individuals
designated in Steps 3 and 4 above are unable to serve , a substitute may
be named.
Section 2 Required time lost by the Union Stewards or other
representatives in settling grievances shall be paid for by the Company
except that no such grievance time will be paid in excess of two (2)
hours per week for Stewards and members of the Grievance Committee
and four (4) hours per week for the President , Vice-President and Chief
Stewards If in any week the stewards do not use the two hours above
provided, the above maximum time allowed for the President, Vice-
President and Chief Stewards shall be increased for that week by the
amount of time not used by the Stewards that week The Company
shall supply the Union with all necessary information in connection
with grievances.
Section 3. Stewards and Local Union officials and two (2) members
of the Grievance Committee shall be permitted free movement within
the plant area for which they are responsible
Section 4 No Union business other than grievances shall be
conducted on the Company's time
2 Respondent has not contended herein that O'Connell was engaged in
any activity other than grievance handling on behalf of the Union when he
left his department without notifying supervision and was variously
disciplined therefor . The issue of O'Connell' s activities is raised only by the
General Counsel who asserts, in effect , that by mutual consent O'Connell
NATIONAL RADIO COMPANY, INC.
contending that the "free movement" clause of the
grievance article meant that he did not have to report
in and out of his work area as required by Miller.
On December 30, 1969, O'Connell left his depart-
ment and again omitted to tell Miller where he was
going and for what purpose, and Miller issued
another formal written warning to him. On January
8, 1970, Miller issued still another warning because
O'Connell refused to report back to his department,
as directed, from the finance department where he
had gone without prior disclosure to Miller.
On January 28, the Union filed a demand for
arbitration of the grievances arising out of the
December 10, 1969, warning to O'Connell.3 The
Union contended that the discipline imposed on
O'Connell for not reporting to his supervisor was in
direct conflict with the "free movement" clause of
the contract. That same day, the Union filed unfair
labor practice charges alleging violations of Section
8(a)(3) and (5) of the Act.
After being transferred to another department on
February 26, 1970, O'Connell was again told that he
would have to comply with the reporting procedures
before leaving his department on grievance business.
Notwithstanding this notification, O'Connell on the
same day twice failed to comply with these reporting
requirements and was given two written warnings.
O'Connell filed grievances as to both warnings that
day.
On March 4, 1970, O'Connell left his department
early in the day on grievance business and informed
his supervisor that he would be gone about 2 hours
and would return no later than lunchtime. O'Connell
did not return to his department at all that workday,
and his supervisor's efforts to locate him during the
afternoon, including paging him on the plant public
address system, were unavailing. This incident
caused Respondent to suspend O'Connell on March
6 for 10 days for failing to return to his department
after completing grievance business.
O'Connell returned to work on March 16 and on
March 17 he was given another warning for failing to
report back to his department after completing
grievance work in the personnel department. After
this warning, O'Connell met with Respondent's
director of industrial relations, William Kajos, who
reviewed O'Connell's entire record and then dis-
charged him for "acts of insubordination, after
numerous verbal warnings, written warnings, and a
suspension."
The Union filed a grievance based on O'Connell's
discharge and, on April 6, 1970, amended the unfair
had been permitted to become a full-time union representative with no
production duties. But whether that is true and whether the parties
intended, if so, to modify the written contract are, in the first instance,
issues for a contract arbitrator.
529
labor practice charges herein to include the suspen-
sion and subsequent discharge of O'Connell.
The complaint herein issued on April 9, and, on
April 10, the Union requested Arbitrator Archibald
Cox to adjourn the arbitration proceeding scheduled
for April 27. The request was denied and the hearing
occurred as scheduled. The issues which the parties
stipulated to the arbitrator were:
1. Did the Company violate Article XIII of its
collective-bargaining contract with the Union by:
a) the warning notices to William O'Connell
dated December 10, 1969, December 30,
1969, January 8, 1970 and February 26,
1970, and
b) the suspension of William O'Connell on
December 10, 1969, and
c) the suspension of William O'Connell on
March 6, 1970, and
d) the discharge of William O'Connell on
March 17, 1970?
2. To what remedy, if any, is William O'Con-
nell entitled?
Professor Cox held an arbitration hearing on April
27, 1970. Respondent, on May 5, asked the Regional
Director for Region 1 to stay this unfair labor
practice proceeding pending arbitration; the Union
opposed the motion. Thereafter, the Regional Direc-
tor denied the motion and the General Counsel, by
telegraphic order, affirmed the Regional Director's
decision. Respondent renewed its motion at the
outset of the hearing herein, but the Trial Examiner
denied the motion and conducted the hearing on
May 25 through 27. He issued his decision on July
13. On July 27, Professor Cox granted the Union's
request for a continuance of the arbitration proceed-
ing and informed the parties in a memorandum that
he would not issue his decision until after the Board
has acted in the instant proceeding.
The issue raised is, in several respects, identical to
that of Collyer Insulated Wire, 192 NLRB No. 150. In
this case, as in Collyer, the controversy is, at bottom,
a substantial dispute over the meaning of contract
provisions. In this respect we disagree with the Trial
Examiner's conclusion that "the relevant contract
terms here are not in dispute" and his consequent
assumption that Respondent's adoption of the
reporting requirement was unilateral action. In our
view the contract provisions and the parties' dealings
under the contract raise these substantial issues,
among others: (1) whether Respondent's actions fell
within its contractually secured "right to establish
rules pertaining to the operation of the plant," (art.
3 Arbitration was also demanded of a disciplinary suspension O'Connell
had incurred in a matter not related to the reporting requirement . See part 2,
infra
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V, sec. 2); (2) whether the application of such a rule
to O'Connell infringed the contractual guarantee to
the Union that its agents would be "permitted free
movement within the plant area for which they are
responsible" (art. XIV, sec. 3); (3) whether Respon-
dent's decision to discipline and discharge O'Connell
for refusing to follow the reporting procedure
pending disposition of his grievance was for just
cause within the meaning of article XIII; and (4) the
extent, if any, to which these contractual provisions
might have been affected by the parties' course of
dealing under the contract. Thus, the considerations
which impelled us to withhold our processes in
Collyer are likewise operative here.
In one respect, however, the cases are to be
distinguished. Here we are presented with the claim
that Respondent has not only violated Section 8(a)(5)
by its assertedly unilateral action, but also Section
8(a)(3) by its discipline of O'Connell. The General
Counsel contends that, in effecting that discipline,
Respondent was motivated by union animus. That
allegation and contention add a dimension to this
case which was not present in Collyer, where no
claim was made that respondent acted from a desire
or with an intent either to abridge Section 7 rights, or
to penalize employees for their exercise of those
rights, In Collyer it was literally true that decision of
the contract dispute would supply the decision of the
unfair labor practice controversy: The contract there
either did or did not authorize the changes in
working conditions and wages which were assertedly
violative of Section 8(a)(5). Here, by contrast, there
exists a narrow penumbra of the dispute wherein it is
possible that adoption of the reporting procedure
was within Respondent's contractually sanctioned
domain and, so, no breach of agreement, but
nevertheless prohibited by the Act because under-
taken for discriminatory motive. This narrow possi-
bility requires that we be especially cautious in
declining to assert the exclusive jurisdiction granted
to us by Congress to prevent and remedy violations
of Section 8 of the Act, for there does exist that
possibility that a contractually sound and entirely
proper arbitrator's award might fail to dispose of all
issues arising under the Act.
With these grave concerns fully in mind, we
nevertheless conclude that our jurisdiction of the
controversy was improvidently asserted prior to the
issuance of the arbitrator's award. In our view the
issues presented to us should not be decided in
advance of an authoritative declaration by the
arbitrator whether Respondent's promulgation of the
reporting procedure was within its contractually
4 In light of our disposition of this issue, we neither reach nor decide the
question whether the Trial Examiner was in error in his holding that no
established prerogative. We are led to this conclusion
by practical as well as by statutory considerations.
2. The complaint alleges, further, that Respon-
dent violated Section 8(a)(3) of the Act by suspend-
ing O'Connell on December 10, 1969, for 3 days
because he destroyed information assertedly required
by Respondent in the course of its business. As more
fully described in the attached Trial Examiner's
Decision, the list kept by employee Alice Wise, an
inspector, contained the names of employees who
had manufactured defective parts. Wise apparently
became concerned that she, a union member, was
keeping such a list of fellow members' names and
expressed this concern to O'Connell. O'Connell
spoke to Wise's supervisor and learned that Wise had
been asked by her supervisor to keep the list.
O'Connell inquired why the list was requested and
was told by the supervisor that he wanted the list for
"personal" reasons. O'Connell thereupon destroyed
the list in the supervisor's presence. He was promptly
thereafter suspended.
O'Connell's suspension for destroying the list was
the subject of an immediately filed grievance. As
already noted the grievance was denied at successive
stages of the agreed-upon procedure and was
submitted to Professor Cox for final resolution on
April 27.
The Charging Party and the General Counsel
contend in this proceeding that the suspension of
O'Connell was motivated by the Employer's union
animus and was, therefore, effected in violation of
Section 8(a)(3) of the Act. The Trial Examiner found
the alleged violation.4 Respondent contends that
because the propriety of O'Connell's suspension was
submitted to the arbitrator, the Board should abstain
from exercising jurisdiction pending an arbitral
resolution. That contention squarely poses issues of
primary importance: Whether the Board is empow-
ered to abstain pending outcome of the arbitration
proceeding, and whether, if so, it will effectuate the
purposes of the Act to do so? We answer both
questions affirmatively.
In the Collyer decision we recently examined the
legal predicate upon which the Board might, and in
that case did, decline to intervene in a dispute over
contract terms which was also, arguably, a refusal by
the Employer to bargain in good faith as required by
Section 8(a)(5). We noted, in particular, that the
courts have upheld the Board's authority to do so in
a proper case. We also reviewed the developments in
our economy as well as the legislative and judicial
responses to those developments, which warranted
our abstention in that case and similar cases.
Much of what was said in Collyer is equally
showing of animus was necessary to his finding of violation
NATIONAL RADIO COMPANY, INC. 531
applicable here, although the issues presented are
concededly different. Collyer was, at bottom, a
dispute over the meaning of contractual terms and
we placed great reliance upon the fact that the
alleged statutory violation and the alleged contractu-
al violation so coalesced that resolution of either
dispute in an appropriate forum would, perforce,
supply the resolution of the other dispute.5 In this
case, however, Respondent's contention that our
authority is improvidently invoked does not rest on
any presumed primacy- of an arbitrator to interpret
an ambiguous or contested contract provision.
Abstention is urged on the straightforward basis that
the contract prohibits discipline for other than "just
cause" and provides a mechanism for the quick and
fair vindication of employee rights when that clause
is violated.
Implicit in Respondent's argument, as we appre-
hend it, is the assumption that the arbitration
proceeding will lead to a resolution of the dispute
which will not be "repugnant to purposes and
policies of the Act."6
If, as we believe, that is a tenable assumption, the
fundamental considerations are the same here as in
Collyer. Here, as there, an asserted wrong is remedia-
ble in both a statutory and a contractual forum. Both
jurisdictions exist by virtue of congressional actionj
and our duty to serve the objectives of Congress
requires that we seek a rational accommodation
within that duality. We may not abdicate our
statutory duty to prevent and remedy unfair labor
practices. Yet, once an exclusive agent has been
chosen by employees to represent them, we are
charged with a duty fully to protect the structure of
collective representation and the freedom of the
parties to establish and maintain an effective and
productive relationship.
In this context, abstention simply cannot be
equated with abdication. We are, instead, adjuring
the parties to seek resolution of their dispute under
the provisions of their own contract and thus
fostering both the collective relationship and the
5 Coppus Engineering Corporation, 195 NLRB No. 113
8 Cf Spielberg Mfg Co, 112 NLRB 1080
' Textile Workers Union of America v Lincoln Mills of Alabama, 353 U S.
448.
B The procedure of abstaining from action, while retaining jurisdiction to
act if necessary to ensure protection of Federal interests, is an established
and respected one. Railroad Commission of Texas v. Pullman Co, 312 U.S
496, Fornais v. Ridge Tool Co, 400 U.S. 41 The doctrine of abstention has
been invoked to avoid conflicts between forums with concurrent jurisdiction
over disputes ansing under (a) Federal regulatory programs, Leiter
Minerals Inc. v United States, 352 U S 220, (b) the Federal Bankruptcy
Act, Thompson v Magnolia Petroleum Co, 309 U S 478, and (c) the Federal
labor relations laws, America Federation of Labor v Watson, 327 U S 582
That procedure seems eminently as well suited to the accommodation of
conflicting statutory aims as to the accommodation of conflicts inhering in
constitutional federalism.
9 The Federal Mediation and Concilation Service , one of the agencies
through which contracting parties can obtain the services of a skilled
Federal policy favoring voluntary arbitration and
dispute settlement. And by reserving jurisdiction we
preserve the right of the Charging Party to seek from
us vindication of statutory rights should the arbitra-
tion reach a result not tolerable under the statute. As
the Supreme Court observed in Carey v. Westing-
house Electric Corp., 375 U.S. 261, 272:
By allowing the dispute to go to arbitration its
fragmentation is avoided to a substantial extent;
and those conciliatory measures which Congress
deemed vital to. "industrial peace" ... and which
may be dispositive of the entire dispute, are
encouraged. The superior authority of the Board
may be invoked at any time. Meanwhile the
therapy of arbitration is brought to bear in a
complicated and troubled area.
In sum, we conclude that the Board is empowered
under the statute to defer action on a complained of
violation of Section 8(a)(1) and (3), pending arbitra-
tion, if, on balance, to do so will advance the policies
and purposes of the Act.8
The question whether, in fact, the policies and
purposes of the Act will be furthered by abstention
here and in similar cases is more complex. The
crucial determinant is, we believe, the reasonableness
of the assumption that the arbitration procedure will
resolve this dispute in a manner consistent with the
standards of Spielberg. As we noted in Collyer,
contract grievance and arbitration procedures have
become an integral part of virtually all collective-
bargaining contracts in this country. Though arbitra-
tion like all systems for the resolution of disputes has
its imperfections, the demand for and resort to
services of skilled arbitrators has increased at a
steady and heartening rate.9 The issue most often
resolved by arbitrators is that of just cause for the
imposition of discipline.10 Indeed, it is largely the
insistence of unions upon procedures to protect
employees against arbitrary treatment that has led to
the modern ubiquity of contractual grievance and
arbitration procedures.ii Wholly aside from consid-
arbitrator, reports that annual requests for panels or direct appointments of
arbitrators quadrupled between 1961 and 1971, the figures being respective-
ly, 3,174 and 12,327 During the same period the number of arbitrators'
awards issued annually under FMCS aegis have nearly doubled , from 1,553
to 2,840 Federal Mediation and Conciliation Service, 24th Annual Report,
Fiscal Year 1971, p. 54-55. The disparity in those figures suggests that, with
arbitration as with the Board , a substantial majority of potential disputes
are settled between the parties without resort to third party compulsion. A
respected authority in the field of labor arbitration has estimated that the
practicing arbitrators in the country issued approximately 10,000 awards
during a recent year. E Jones, Arbitration and the Public Interest, Proc , 20th
Annual Meeting, National Academy of Arbitrators 45 (1971).
io In fiscal 1971 almost half of all arbitration awards issued under FMCS
auspices involved discharge and disciplinary action . FMCS , 24th Annual
Report 55
11 "Even where there was littie evidence of irresponsible behavior on
the part of management , the union seeking to organize employees the
protection offered by collective bargaining against unfair disciplinary
(Continued)
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
erations arising from the increasing caseload before
this five-man Board,12 we believe the purposes of the
Act are well served by encouraging the parties to
those contracts to resolve their disputes without
government intervention. The reference in Carey to
the "therapy of arbitration" is not simply rhetorical.
The relationship of contracting parties is strength-
ened by the experience of mutual reliance on
contract procedures. The intervention of this Board,
by contrast, can sometimes be an unsettling force.13
There are also more specific reasons why the
contractual procedures may be assumed to operate in
such fashion as to resolve the underlying dispute in
full and thus obviate the need for further action by
the Board. It bears repeating that this case is
cognizable by the Board at all only because the
discipline here was imposed upon one who had
distinguished himself as a union adherent. That is,
but for the fact that O'Connell acted in behalf of the
Union, his 3-day suspension would have presented
only contractual issues and Section 8(a)(3) of the
statute could not have come into play. We may
assume that the Union will be aware of its institu-
tional interests in protecting its officer and leading
proponent against discipline which is thought to
restrict his activities on the Union's behalf. In that
respect, especially, it must be noted that the interests
of the employee and his representative are in
substantial harmony in this case and are likely to be
so in every such case.14 It is sufficient to note here
that in protecting O'Connell the Union protects itself
as well and, for that reason, we see no ground to
assume that O'Connell's interests will be inadequate-
ly represented under the contractual procedures.
Two final similarities between this case and Collyer
reenforce our belief that abstention is appropriate.
Here, as in Collyer and in Jos. Schlitz Brewing
Company, 175 NLRB 141, the parties have had long
established a stable and productive bargaining
relationship.15
Second, although the alleged violation of Section
8(a)(3) subsumes a charge of union animus by
treatment It is a mistake to feel that a union 's contribution is limited to
periodic contract improvements , it has a great influence on disciplinary
policies and actions This is felt on almost a daily basis during the life of an
agreement, either because of the silent presence of the union or because the
union has been quick to prosecute grievances relating to allegedly unfair
discipline," S Shchter, J Healy and E Livernash, The Impact of Collective
Bargaining on Management , 624 (1960)
12 This consideration should not be gainsaid , however In fiscal year
1971, the Board decided 836 contested unfair labor practice cases, an
increase of more than 500 percent since 1957
13 "But if the Union may . call upon an outside agency the whole
proceeding is necessarily disrupted The arbiters cannot continue. The
whole controversy then shifts from the plant to the nearest Board hearing
room, and thereafter to the nation 's capital , and then on to the seat of any
one of the eleven Courts of Appeals having geographical jurisdiction over
the employer Whatever else that is, it is not giving full play to the means
established by the parties . More than lost time, it introduces or magnifies
advocative hostility For now a new adversary has entered the lists-the
Respondent, we believe this case must be distin-
guished from those in which a history of such animus
or pattern of action subversive of Section 7 rights has
been alleged.16 For these reasons we decline at this
time to exercise our remedial powers in this case and
so decline as well to render any decision now upon
the merits.
3. Finally, Respondent is charged with violating
Section 8(a)(5) by failing to comply with contractual
obligations to resume an awards program for long
service employees, to print and distribute copies of
the current contract, and to establish a system of
warning notices in connection with employee disci-
pline. These allegations clearly raise simple contract
disputes resolvable under the settlement procedures
provided in the contract. These allegations of the
complaint shall be dismissed in accordance with our
decision in Collyer, supra.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, the National Labor Relations Board
hereby orders that the complaint herein be, and it
hereby is, dismissed; provided, however that:
The Board shall retain jurisdiction of this proceed-
ing for the purpose of entertaining an appropriate
and timely motion for further consideration upon a
proper showing that either (a) the dispute has not,
with reasonable promptness after the issuance of this
decision, either been resolved by amicable settlement
in the grievance procedure 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.
MEMBERS FANNING AND JENKINS, dissenting:
The majority here extends its Collyer policy, of
forcing the union and employer out of the Board's
processes and into arbitration, to a case in which no
question of contract interpretation is involved and in
which the only issue is whether an employee was
fired for union activity in violation of Section 8(a)(3).
General Counsel who , from the nature of the complaint, aligns himself with
one of the adversaries-the Union-but who as a sort of protector of the
general public interest must advance his advocacy, pro and con , not in the
manner best calculated to bung an end to the dispute, but in a manner
thought, from that lofty vantage, to be best for the general good Even
worse, that diversion ends in a decision which , if it determines the
substantive issue adversely to the Employer as does this one leaves the
Employer facing an additional adversary-the Board . This makes it
necessary for the Employer to resist that determination in order to get the
matter back where it started-in the laps of the arbitrators . To do that the
Employer must come to court But the courthouse, says the Supreme Court,
is not the place to work out industrial disputes when arbitration has been
prescribed and is available " Sinclair Refining Company v N L R B, 306
F 2d 569, 579 (C.A. 5)
14 Cf Kansas Meat Packers, a Division of Aristo Foods, inc, 198 NLRB
No. 2, issued this day.
15 Compare Curtis Manufacturing Co, Inc, 189 NLRB No. 38
16 Compare United Aircraft Corporation, 188 NLRB No. 96
NATIONAL RADIO COMPANY, INC. 533
There is therefore no contractual dispute which is,
susceptible to arbitration. To compel the victim of
this alleged discrimination to resort to arbitration is
not "deferral," but a subcontracting to a private
tribunal of the determination of rights conferred and
guaranteed solely by the statute. Such action mocks
the statute and the reason for this Board's existence.
In the series of recent cases in which the majority
has deferred to arbitration alleged violations involv-
ing unilateral changes in collective-bargaining agree-
ments, we have previously expressed our reasons why
the Board lacks the power to refuse to decide such
cases when they are brought to it, and why it is ill
advised to refuse even if the Board had the power.
Collyer Insulated Wire, 192 NLRB No. 150; Peerless
Pressed Metal Corp., 198 NLRB No. 5; Appalachian
Power Co., 198 NLRB No. 7; National Biscuit Co.,
198 NLRB No. 4; Malrite of Wisconsin, Inc., 198
NLRB No. 3; among others. Those reasons are
equally applicable here, and need not be repeated.
But in discriminatory discharge cases, there are
additional and cogent reasons for the Board to
decide the merits of the case forthwith rather than
subcontract the decision to private hands
Statutory protection against discrimination on the
job because of engaging in, or refraining from, union
activity is an individual right, unlike the union or
group right to be protected from unilateral changes
in the collective -bargaining agreement . Because it is
granted by the statute to individuals, it cannot be
reduced, altered, or displaced by any agreement
between the employer and the union. N.L.R.B. v.
Industrial Union of Marine and Shipbuilding Workers
of America, AFL-CIO and its Local 22, 391 U.S. 418;
Lodge 743, 1AM v. United Aircraft Corp., 337 F.2d 5
(C.A. 2). A union and employer may lawfully agree
to arbitrate any differences they have over provisions
in their agreement. But they cannot lawfully agree
that they will arbitrate between themselves discrimi-
nation by one of them against an employee, unless
that employee joins in or plainly acquiesces in and
adopts that method of determining his rights,
because Section 9(a) gives him the right to present his
grievances outside the channels agreed upon by the
employer and union. The contrary conclusion,
adopted by the majority, subjects the individual
rights of the employee to a tribunal he has never
agreed to, has rejected by asking this Board to decide
his case, and cannot on his own individual initiative
invoke. Because only the union or employer can
invoke the arbitration process, that process therefore
may well leave him stranded even if he desired to
submit to arbitration. Since the party who is
complaining of the unlawful conduct against him has
brought his case to the Board instead of pursuing
arbitration, there is nothing voluntary about the
arbitration which the Board is forcing upon him.
Thus, the voluntary character of arbitration, which
the majority extols as the main reason for compelling
its use, is completely absent in the case of the
individual discriminatee. His plight is reminiscent of
the army private to whom the sergeant pointed and
said, "I need one volunteer-you."
The special competence of arbitrators in contract
disputes, which is the only substantive justification
the Supreme Court has found for ordering the
contracting parties to arbitrate rather than litigate,
does not exist in the field of statutory rights. The
arbitration process cannot use the Board's investiga-
tive or legal resources and capabilities, and arbitra-
tors do not have the expertise in statutory issues
which the Board has necessarily acquired through
long, intimate, and specialized experience. Indeed,
the majority concedes that its deferral to arbitration
in this case "does not rest on any presumed primacy
of an arbitrator to interpret an ambiguous or
contested contract provision." Therefore the only
reason the Supreme Court regarded as justifying
arbitration is absent here.
And more important, it is the Board and not
arbitrators whom Congress has made responsible for
determining violations of the statute. There is a
public right and interest in preventing and remedying
violations of the Act, which is perhaps even para-
mount to the individual rights of which we have
spoken above. We have pointed out in Collyer and in
other cases since then that the Board is not
empowered to delegate this responsibility to private
tribunals, and that our colleagues' reliance on the
Steelworkers' trilogy, Carey, Boys Markets, and other
such cases was entirely misplaced because those
cases involved no violations of the Act, but only
disputes over the meaning of the contract. The
inapplicability of these cases involving suits to
compel arbitration has just been pointed out again
by the Supreme Court in holding that "a § 301 suit to
compel arbitration" is not pertinent to "an unfair
labor practice proceeding where the Board is
expressly limited by the provisions of § 8(d)."
N. L. R. B. v. Burns International Security Services, Inc.,
92 S.Ct. 1572(1972). Where no contract dispute
exists, as here, there is nothing to arbitrate. Thus the
majority is not deferring to arbitration, but subcon-
tracting to a private tribunal the determination
whether the statute was violated. Uniformity disap-
pears, the preemption doctrine is frustrated, private
tribunals proliferate with no real prospect of review
of their actions, and anarchy begins to intrude.
The majority asserts, in support of its result, that
"[b]oth jurisdictions [this Board and arbitration]
exist by virtue of congressional action," relying on
Textile Workers Union of America, AFL-CIO v.
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lincoln Mills of Alabama, 353 U.S. 448. But the
congressional action considered in Lincoln Mills
extended only to suits under Section 301 to enforce
contract provisions. Nothing in Lincoln Mills indi-
cates that other than contract rights were amenable
to arbitration. Other tribunals, e.g., the Court of
Military Justice, also "exist by virtue of congression-
al action," but this does not allow the Board to send
its cases there.
This rush to subcontract to private hands the
determination of public and individual rights will
eliminate those rights, sooner rather than later. The
only way an 8(a)(3) discrimination case can be
squeezed into the arbitration mold is by interpreting
some contract clause such as one forbidding dis-
charge without "good cause" as providing the same
protection the statute provides against discrimina-
tion. (Why would not the majority first ask an
arbitrator to determine whether the clause should be
so read?) The majority will then presume that the
issue of discharge for union activity (or for refraining
from such activity) was decided by the arbitrator
even though the award does not mention it and
decides only whether "good cause" existed. Terminal
Transport Company, Inc., 185 NLRB No. 96. But as
the majority concedes, arbitrators are concerned with
"just cause for the imposition of discipline," and will
dispose of this case on that ground in the arbitration
proceeding. Thus, the majority engages in what they
regard as a "tenable assumption" that the arbitration
result "will not be `repugnant to purposes and
policies of the Act.' "
This assumption is not only not tenable, it is not
possible. For it makes the existence of "good cause"
a complete defense in a case where the reason for
discharge is union support (or non-support). In
many, and perhaps most, discharge cases, a good
reason may exist for firing the employee; if so, the
arbitration inquiry ends there, and the employee is
out of a job. The Act, however, requires that the
employee be protected against discharge for union
reasons, even though there may be a different and
good reason for his discharge. Consequently, the
Board in nearly every discriminatory discharge case
examines the evidence and the circumstances, in
order to determine whether the "good" reason was
the real reason or a pretext for firing the employee.
Frequently the "good" cause is found to be a pretext.
This protection of the Act is eliminated by the
majority's subcontracting of such cases to arbitra-
tion, which will go against the employee if the
employer can unearth, even in hindsight, a "good
cause" for firing the employee. That the union
apparently has no interests adverse to the employee
and does have an interest adverse to the employer
cannot, contrary to the majority, provide any
assurance that the arbitrator will determine whether
the "good cause" was a pretext, since his sole
authority and function is to interpret the "good
cause" provision. Indeed, the arbitrator himself
(Professor Archibald Cox) in this case has, by
withholding his decision until the Board has decided
the statutory issue, concluded that he cannot or
should not determine that question. The "therapy of
arbitration" which the majority illogically imports
into this case 17 leaves the patient to die without
benefit of the protection Congress intended him to
have. Thus the majority's assertion that their forcing
the alleged victim into arbitration "simply cannot be
equated with abdication" is perhaps provoked by the
unavoidable realization that they are abdicating.
The result of these mistaken assumptions is to
reduce the statutory protection against discrimina-
tion to a permission to fire the employee if "good
cause" or "just cause" exists for doing so, even
though the true reason for firing him is not this but
rather his engaging (or refusing to engage) in union
activity-
A further and necessary result is that if the parties
desire, they may contract themselves out of the Act
to any extent they choose by listing in the contract
the provisions of the Act they agree not to violate,
and appending an arbitration clause to such listing.
For example, the employer and union may agree that
union members will not engage in concerted activity
on company time or property, or that the employer
will not interfere with, coerce, or discriminate against
employees because of union activity-a substantial
part of the activity protected by Section 8(a)(1) and
(3). By appending an arbitration clause,the parties
can remove these activities from the statutory
protection, and limit the employees' protection to
that afforded by arbitration. For the majority will
then refuse to decide, subcontract the case to
whatever tribunal the parties may have designated,
and the Board can devote most of its time to election
cases. The majority will then have sidestepped much
of the Board's unfair labor practice work, by
assigning it to private tribunals, rather than to the
Federal courts as has often been proposed but never
accepted by Congress.
Besides the foregoing drastic curtailment of statu-
17 The "therapy" concept was expressed in Carey, Pres. of International to this dispute , the fired employee, is not a party to the arbitration
Electrical Workers v. Westinghouse Electric Corporation, 375 U.S . 261, 273, a agreement and not bound by it, we have explained in more detail in our
case in which the Court enforced an agreement to arbitrate a contractual dissents in Collyer why Carey and the similar cases the majority cites are not
dispute . Apart from the facts that (1) no contractual dispute is involved appropriate.
here, (2) no statutory right was involved in Carey, and (3) one of the parties
NATIONAL RADIO COMPANY, INC. 535
tory rights inherent in the majority's subcontracting
of discrimination cases, the cost of arbitration will
severely limit the protection of the discriminatees.
Each arbitration, as we have pointed out elsewhere,
will cost well over $500 per side, with the likelihood
that the figure will exceed $1,000. Since arbitration
settles only the particular case arbitrated, and
provides no remedy against future violations, a
determined opponent of employee rights can repeat
the unlawful conduct and make it almost impossible
for even a strong union to continue the arbitration
course. The vicitim, of course, out of work and out of
money, has no chance through his own efforts of
obtaining his rights by an expensive arbitration. And
the victim is, by this subcontracting and refusal of
the Board to exercise its responsibilities, deprived of
the assistance of the Government, of its resources, its
powers, and its expertise, in establishing his rights.
That those rights also have a public character and
interest emphasizes the derogation of the statute and
public policy inherent in the majority's action.
Since the original enactment of this statute in 1935,
it has been contemplated that the Government, with
its resources, facilities, and power, shall vindicate the
rights protected by the Act. "No private right of
action is contemplated. Essentially the unfair labor
practices listed are matters of public concern, by
their nature and consequence, present and potential
. . ." See II Leg. Hist. 2931, 2978, 3074 (1935). The
original Section 10(b) proposed by Senator Wagner,
"father" of the statute, contained a clause providing
that the "Board may, in its discretion, defer its
exercise of jurisdiction over any such unfair labor
practice in any case where there is another means of
prevention provided for by agreement . . . ." See I
Leg. Hist. 1301 (1935); II Leg. Hist. 2430 (1935). This
is exactly what the majority does in this case. Yet this
provision was struck from the bill, II Leg. Hist. 2351
(1935), a clear rejection of the "policy" which the
majority here and in Collyer have created. Forcing
the discriminatorily discharged employee to resort to
arbitration can no more be justified than allowing a
different private tribunal, created by a union, to
impede his access to the Board by an adjudication
imposing a fine because he resorted to the Board. In
such case, as the Supreme Court held, "[i]f the
[employee] becomes exhausted, instead of the reme-
dies, the issues of public policy are never reached and
an airing of the grievance never had," and thus
"overriding public interest makes unimpeded access
to the Board the only healthy alternative ...."
N. L. R. B. v. Marine and Shipbuilding Workers, 391
U.S. 418, 425, 424. Precisely the same is true here,
and there is no more reason to permit a private
arbitration tribunal to impede access to the Board
than to allow the private union tribunal to impede it
in Marine Workers.
The majority asserts that arbitration of discrimina-
torily discharged employees is preferable to decision
by the Board because "intervention of this Board
... can sometimes be an unsettling force," and
arbitration is "best calculated to bring an end to the
dispute ." 18 But if the statutory protection is to be
meaningful, of course Board decisions finding
unlawful conduct may be "unsettling" to the parties
who have agreed to an arbitration provision. The
employee who is allegedly victimized is, contrary to
the majority , not a party to the arbitration agree-
ment ; the protection of his statutory rights does not
contemplate nor turn upon ending the dispute on
terms acceptable to the union and employer. The
significance of the "unsettling effect " of a Board
decision is simply that the protection of statutory
rights often requires more than an arbitrator is
empowered to decide , or will award . Thus the
"unsettlement" will vary directly with the extent to
which arbitration will or may fall short of what the
statute commands . While the majority deplores this
and is willing to emasculate the Act to avoid it. we
regard it as a necessary and valid symptom of the
effectiveness of the statute. Indeed , because an
arbitration award disposes of only the individual
case , lacks precedential value , and cannot prevent
recurrence of future misconduct of the same sort,
any "unsettlement" would seem to be far greater
under the arbitration compelled by the majority than
under a dispositive Board decision which would
establish the proper principle and eliminate further
misconduct.
Finally, the majority justifies its subcontracting
cases to arbitrators on the ground of curtailing "the
increasing caseload before this five -man Board."
This justification is as misplaced as the other
assumptions of the majority. As was pointed out in
our dissents in Collyer, in the decade preceding
Collyer such cases have averaged two per year, and
the Board 's willingness to decide them may have
discouraged violations and thus have kept the
number low . Subcontracting these cases to arbitra-
tors may eliminate two cases per year from our
800-850 decisions, but at the expense of increasing
the number of disagreements and the effort and
expense of the parties in disposing of them on an ad
hoc basis . And even if the workload reduction were
very substantial , this hardly explains how the Act
permits the , Board to remove the protection of the
Act from a large segment of those it was designed to
18 Fn 13 and accompanying text, supra
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
protect, or why the Board instead of Congress should
establish such a policy.
For these reasons, there is no authority in the Act
permitting the Board to force an employee to
arbitrate his discriminatory discharge which alleged-
ly violates the statute, and no reason for the Board to
do so if it had such authority. We think the Board is
required to determine the case on the merits and
would do so.
TRIAL EXAMINER'S DECISION
LLOYD BUCHANAN, Trial Examiner: The complaint
herein (issued April 9, 1970; charges filed January 30 and
April 6, 1970), as amended, alleges that the Company has
violated Section 8(a)(3) of the National Labor Relations
Act, as amended, 73 Stat. 519, by suspending William F.
O'Connell on December 10, 1969, and discharging him on
March 17, 1970, because of his union membership and
protected concerted activities; Section 8(a)(5) of the Act by
refusing to bargain collectively with the Union as the
exclusive representative of the employees in the established
unit, by unilaterally changing established policy with
respect to free access by union officials, and by refusing to
implement various contract conditions; and Section 8(a)(l)
of the Act by all of the acts noted above. Admitting the
allegation of O'Connell's suspension and discharge, of
appropriate unit, and of the Union's exclusive representa-
tion, the answer, as amended, denies the allegations of
violation.
The case was tried before me at Boston, Massachusetts,
on May 25 through 27, 1970, inclusive. Pursuant to leave
granted to all parties, briefs have been filed by the General
Counsel and the Company, the time to do so having been
extended.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR) AND
CONCLUSIONS OF LAW
I. THE COMPANY'S BUSINESS AND THE LABOR
ORGANIZATION INVOLVED
The facts concerning the Company's status as a
Massachusetts corporation, the nature and extent of its
business, and its engagement in commerce within the
meaning of the Act are admitted; I find and conclude,
accordingly. I also find and conclude that, as admitted, the
Union is a labor organization within the meaning of the
Act.
II. THE MOTION TO DEFER TO ARBITRATION
On May 5 the Company moved the Regional Director to
postpone the trial in this case and to defer to the
jurisdiction asserted by an arbitrator on April 27. That
motion was denied on May 12.
I Wiith speed a desideratum and delay an alleged concern , and despite
the to-do at the trial about prompt decisions and Board delay, counsel for
the Company requested an extension to July 20 for the filing of briefs. If the
arbitrator's decision has issued at the present writing, I have no knowledge
We consider now, but briefly, the motion as renewed
before me at the opening of the trial on May 25. It will
serve little purpose to repeat here various facts analyzed
and considered at the trial, from the filing of the charge
herein and the simultaneous request for arbitration,
through the request on April 10 that the arbitration hearing
be adjourned until after the Board decision herein, the
denial of that request, and the holding of the arbitration
hearing on April 27 and May 14.1 Nor shall I now repeat
the able arguments, pro and con, on the motion before me
or the detailed analysis which I made on the record and my
reasons as I denied the motion.
I would add only the following to what I said ex directo
on the bench. In Dubo,2 the union early filed a petition in
the district court for an order requiring the respondent
there to arbitrate various grievances, and it maintained its
position until it obtained an order 4 months later directing
such arbitration. This the Board recognized as it deferred
action.
In the instant case, with the arbitrator concerned with
the alleged discrimination and the Board with that and the
alleged refusal to bargain in that the Company unilaterally
effected a change in policy which led to the discrimination,
there would be a duplication of directly necessary
testimony not to mention all else which would be relevant
to an understanding of the relationship between the parties
and the context of the events in issue. Indeed, the defense
being that O'Connell was insubordinate with respect to
orders which are alleged to have violated Section 8(a)(5), to
uphold that defense would be to dispose of the allegations
of discrimination.
Without the benefit of hindsight but prospectively,
before decision on the motions to adjourn or to defer, it
could be expected that the testimony concerning the 8(a)(3)
allegations and that concerning the 8(a)(5) could not be
separated: Certainly even the December restriction on
O'Connell's passage through the plant on union business
(alleged to be in violation of Section 8(a)(5)), of which
more below, explained and led to the alleged insubordinate
acts by O'Connell which in turn, we were early told, were
the reason for the discharge. With the explanation for the
request for arbitration as necessitated by the contract
between the parties, and an early request that the
arbitration be held in abeyance, the Board should not, and
should not have been requested to, abdicate its responsibil-
ity because the arbitrator saw fit to deny the request for
adjournment made to him and to proceed with the
arbitration. This is not a case where the request that the
matter proceed to decision by the Board was made only
after the arbitration hearing and decision or even after the
arbitration hearing had commenced. The right to deter-
mine prospectively which proceeding should be conducted
and be held to be determinative must he with the Board,
not with the arbitrator.
Whatever may be said in cases involving interpretation
of a contract,3 the relevant contract terms here are not in
dispute. The questions with respect to O'Connell' s warning
of it.
2 Dubo Manufacturing Corporation, 142 NLRB 431.
3 Cf. Office and Professional Employees, Local 425 v. N. L. R. B., 419 F.2d
314 (C.A.D.C.); N.L.R.B. v. Acme Industrial Company, 385 U.S. 432;
NATIONAL RADIO COMPANY, INC.
notices, suspensions, and discharge concern the issue of
Section 8(a)(5) unilateral actions taken by the Company,
and that issue was not submitted to the arbitrator. This is
in no sense a decision that any obligation by the Union to
arbitrate under the contract is invalid. But any such
obligation may not be held to frustrate or interfere with the
Board's proceeding to determine whether an unfair labor
practice has been committed; and sufficient reason has
been shown for the Board to make a determination.
III. THE UNFAIR LABOR PRACTICES
A. The Alleged Violation of Section 8(a)(5)
I find and conclude that, as alleged and admitted, the
following is an appropriate unit within the meaning of
Section 9(b) of the Act:
All production and maintenance employees of the
Company employed at its Melrose plant including
model shop employees, factory clericals and leadmen
exclusive of office clerical employees, guards, profes-
sional employees and all supervisors as defined in the
Act.
An 18-year harmonious relationship between the Com-
pany and the Union was marred within the last few months
by a 2-week strike, the filing of many grievances, and the
submission of two cases to arbitration, including the one
noted above, these being the first two between the parties.
Whether or not this be a case of post hoc, propter hoc, it was
stipulated that within the last 2 years the Company has
acquired a new president, vice president in charge of
operations, and director of industrial relations.
By memorandum of agreement on August 18, 1969, the
parties extended the 2-year collective-bargaining agree-
ment which they had entered into on August 2, 1967. That
agreement provides, inter alia, as follows in article XIV:
Section 3. Stewards and Local Union Officials and
two (2) members of the Grievance Committee shall be
permitted free movement within the plant area for
which they are responsible.
Section 4. No Union business other than grievances
shall be conducted on the Company's time.
O'Connell has for 5 years been president of the Charging
Union. He has been zealous and very active on its behalf.
Employee Wise, an inspector for the Company and a
shop steward and member of the Union's executive
committee, testified that although the Company kept cards
which showed deviations and errors on various jobs, her
group leader, Arthur, asked her to keep for him a list of
rejects and deviations. She asked him whether Miller, the
department manager and Arthur's superior, wanted it.
Arthur allegedly replied that he was "doing many errands"
for the Company and needed the list for his personal use so
that he would know what was going on in the department.
Wise testified further that from time to time Arthur asked
her for the list, which she kept on scrap paper, and that
some employees complained of her keeping a list limited to
their poor work.
About the end of November she told O'Connell about
this adding that she did not know "whether it was legal for
314 (C.A.D.C.); N.L.R.B. v. Acme Industrial Company, 385 U.S. 432;
Progress Bulletin Publishing Company, 182 NLRB No. 135.
537
a union member to keep a list for his own personal use or
whether it was right for [her] to do so." O'Connell asked
Arthur why he needed such a list and the latter allegedly
agreed that the card system was "all right." Asked by
O'Connell whether Miller had ordered the list, Arthur
replied that Miller knew nothing about it and would not
see it: It was only for Arthur's information. O'Connell then
asked Arthur what he was going to do with the list and,
when Arthur replied that he guessed he would have to get
rid of it, O'Connell said, "I'll get rid of it [for] you," and
tore it up. It does not appear that Arthur protested. Wise
did not keep such a list thereafter.
O'Connell testified that, after Wise told him that she was
concerned about the list which Arthur had instructed her
to keep, he asked Arthur about it and the latter replied that
it was for his own information and that he had not been
instructed to keep it; it was his own "personal business";
that Arthur then told Wise that she would not have to keep
it4 and said that he would throw the list away; and that
O'Connell thereupon tore the list and threw it away.
When O'Connell on December 9 heard that Arthur had
told Miller that O'Connell had destroyed company records,
he spoke about it to Kajos, the Company's director of
industrial relations, and was told that a meeting concerning
the incident had been set up for that afternoon. At the
meeting, which was attended by O'Connell, Walsh, the
Union's vice president, Arthur, Kajos, Miller, and Pundick,
the Company's vice president in charge of operations,
O'Connell maintained that he had not destroyed any
company records but only Arthur's list of four or five
names. At 11 o'clock the next morning Kajos handed
O'Connell a suspension memorandum which read as
follows:
You are hereby notified that you are being suspend-
ed for deliberately destroying information required by
the Company in the course of its business, and for
intimidating fellow employees into disobedience of
proper management instructions.
The suspension is for the remainder of the work
week for the period ending December 14, 1969.
Please report to work on Monday, December 15,
1969.
Miller testified that he had instructed Arthur to keep a
report on rejects in the machine shop, and that on
December 9, when he asked Arthur for it, the latter told
him that O'Connell had torn it up. According to this
version, Arthur had told Miller that O'Connell had the list
and said that Arthur should not have it (whether Arthur
said anything in reply, we do not know), and O'Connell
later admitted that he had torn it up, saying that it was a
personal piece of paper which Arthur had been keeping.
It was evident as he testified that Miller had the issues in
mind and was straining to justify the Company's position,
filling in where he did not know, and hedging or avoiding a
direct answer where he did know. I do not credit his
testimony or explanations. Aside from this issue of
credibility, whether Miller had asked for and wanted such
a list or whether it was personal to Arthur and not a
company record, it may be noted that there was no
4 Wise was not given a reprimand or a warning, nor apparently was she
spoken to about it, although she did not keep the list thereafter.
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
information on Wise's or Arthur's list that could not be
obtained by looking at the card records which were at
hand; and that approximately 10 days or 2 weeks
intervened between O'Connell's destruction of the list and
Miller's alleged request for it.
I draw no inference from the fact that Arthur, apparently
available to both sides, was not called as a witness by either
to testify concerning what had occurred between himself,
Wise, and O'Connell, and concerning his discussion with
Miller. It is further to be noted that the suspension notice
was given to O'Connell in the context of discussion which
had been going on for some 3 months concerning a
reporting procedure which O'Connell refused to accept
and for which he received a warning notice on December
10 as we shall now see.
It was while O'Connell was waiting to see Kajos with
reference to the decision on the Arthur list episode that on
Wednesday morning, October 10, he was given a warning
notice in which he was charged with leaving one building
that morning and going to the toolcnb in another building
without notifying his supervisor. Miller told us that it had
always been the practice that all of the union officials who
reported to him with the exception of O'Connell (these
being the vice president, the financial secretary, the two
members of the Grievance Committee, and stewards) to
notify him, before they left the department, when they
were leaving, where they were going, and when they
expected to return. O'Connell, he stated, did this only
sometimes; we were not told when or the number of times.
As chief union official, O'Connell spent far more time
away from his job and on grievance business than did all of
the other union representatives combined.
While Miller had previously requested O'Connell to tell
him when he was leaving the department on grievance
business, the latter had never been warned about this. In
September 1969 Miller told O'Connell that it would be
convenient since Miller was not always there if O'Connell
kept a record or logbook in this connection. Whether
O'Connell at any time agreed to keep a record or to notify
Miller is in dispute.5 What is not in dispute is that, while
other union representatives did so report, the agreement
between the Company and the Union did not provide for
this and O'Connell through the years had not reported.
When in September Miller provided a book for O'Connell
to enter his comings and goings, O'Connell declared that
he would not keep it. Sometime thereafter and again on
December 8 or 9 Miller told O'Connell that he needed the
information, O'Connell replying that he did not have to
and would not supply it. Early on the morning of
December 10 Miller told O'Connell that he would give him
a warning slip if he did not report when he was leaving and
where he was going. In the light of the other circumstances
here, it is unnecessary to decide whether, as O'Connell
claimed and Miller denied, the latter also asked that he be
told whom O'Connell was going to see and about what.
With the possible exception of March 17, when he was
discharged because he had "deliberately refused to disclose
reasons for [his] absence" there is no evidence and it is not
claimed that on any of these occasions O'Connell was not
in fact engaged in grievance business. While O'Connell had
not reported in advance of his departure on December 10
as Miller wanted him to do, he did thereafter explain that
he had gone to see Kajos concerning his grievance and the
discussion the day before with respect to his tearing
Arthur's list.
The same issue of failure to report was involved in
similar warnings given to O'Connell on December 30,
January 8, and February 26. O'Connell was suspended on
the afternoon of March 5, and the following day he was
notified that this was to continue until March 16, the
suspension notice reciting the various warning slips noted
above. A similar warning notice was given to O'Connell on
March 17, when he was discharged.
An issue of fact intrudes in connection with the
suspension notice of March 6 : It is claimed and denied that
when he left his department on March 4 O'Connell said
that he would return by noon. (A similar question arose
with respect to O'Connell's whereabouts on March 17.)
This is hardly determinative of the question before us since
it is clear from the suspension notice and indeed from the
entire record that the issue was then, as it had been and
continued thereafter, the insistence on and the refusal to
report. Despite an innuendo several times injected, there is
no claim that O'Connell was engaged in improper activity
or that he was a shirker.
We disgress briefly to note the following letter which
O'Connell sent to Kayos on December 12, while he was
suspended:
In accordance with the terms of Article XIV, Section
3, I want my rights to enter the Plant to conduct
ordinary union business in connection with my job as
President of the Local. I intend to have the customary
Friday meeting with my Vice-President and two chief
stewards. Grievances will be discussed and whatever
other business that comes up subject to the operation of
the Local within the Plant.
I also intend to check on the financial affairs of the
Local and may contact Payroll Department with
regards to check-off and union dues.
While access during a period of suspension can be included
in the allegation that the established policy was unilaterally
changed, the issue as framed and tried related to
O'Connell's movements while he was on the job. Beyond
O'Connell's statement that Kayos told him that he was not
to reenter the plant while on suspension, there was no
reference to this item, nor was it litigated; and I make no
finding in this connection. The letter was early offered and
received in chronological order with the other documents.
Although as we shall see, grievance business may be
broadly defined, O'Connell's December 12 letter distin-
guishes in haec verba between grievances and other
business. The contract limits compensable time to griev-
ance business. But it did not limit O'Connell's activity to
grievances while he was on suspension and not being paid.
5 Before the arbitrator, O'Connell testified, "In the beginning I thought it Kajos testified Asked how long he kept it, he replied, "It didn't take long to
was a good idea until it got so involved I didn't want anything to do with it " get involved " The pertinent extract from the testimony before the arbitrator
The Company can hardly claim that this was a waiver on which it relied in was by consent received after the close of the trial herein and is marked
the face of O'Connell's continued objections, immediately expressed as "TX Exh 1."
NATIONAL RADIO COMPANY, INC.
The prior provision for free movement permits other
activity beyond grievance business even if the time spent
thereon be not compensable. Nor, as we recognize that this
was not litigated, did the Company raise any question with
respect to O'Connell's stated intention to take up "other
business that comes up subject to the operation of the
Local within the Plant."
We return to the requirement to report which the
Company now sought to impose on O'Connell. Miller
testified that about October there was a change in the
reporting of employees' time for charge purposes. He had
complained that all of O'Connell's time was being charged
to the commercial products department even though he
spent so much time on union business and in other
departments, and the finance department wanted to know
where O'Connell was .6 It will be noted that this occurred
after Miller had first spoken to O'Connell about reporting.
If this was a good reason for getting reports on
O'Connell's whereabouts, it was a new reason and called
for modification of the existing procedure.. Indeed one can
wonder whether the good reason now declared by Miller
was the actual reason : Not until February 23 when
O'Connell was assigned to his department, or February 24,
did Tully, his new department manager, first hear of these
rules informally; a higher company official more formally
but orally told him about these rules when O'Connell
complained that the proposed new rule would restrict his
freedom of movement, his own reply was that such a rule
was applied in most companies and that it was just
"common courtesy."
Basic to everything which occurred here and determina-
tive of the issues before us is the question whether the
Company lawfully imposed conditions on the activity of
O'Connell, the Union's president, within the contract
provision that union representatives are permitted free
movement within the plant area for which they are
responsible. An attempt to distinguish between union
business and grievance business was quickly disposed of
when O'Connell explained that he was on grievance
business even when grievances were not filed: Investiga-
tion was necessary and indeed desirable to avoid the
unnecessary filing of grievances. (We recall that Miller
wanted information when O'Connell left on grievance
business.)
It may be noted also that no complaint was made or
issue raised, at the times when he was so engaged, that he
was not on grievance business under the contract between
the parties. In fact the Company's account which was
maintained to show the amount of time which O'Connell
spent away from his job without protest was itself labeled
"union business."
While Kajos at the trial spoke of the possibility that
matters might arise which were to be handled in the union
office and not on company time, no such issue was raised
with O'Connell and it was not claimed that he was
exceeding his rights under the contract. On the contrary, as
noted, Miller's reason as given to us stemmed from
6 At this point Miller stated that he may have told O'Connell to report
whom he was going to see and why.
7 The various union representatives have transferable quotas. The total
539
intracompany and interdepartment relationships and
accounting.
The rule with respect to plant access and paid nonwork-
ing time had been declared in the contract between the
parties and established in actual practice. Thus as Kajos
told us, O'Connell had spent 1,195 hours or the equivalent
of 33 weeks in 1969 on union business. The figures for 1968
were even higher, being 1,520 hours or the equivalent of 42
weeks. For a long time the hours which O'Connell spent
throughout the plant area and in the office where he kept
his union papers and worked on union business had left
little time for performance of his functions as electronic
technician. This was strikingly evident and even surprising
until the time he spent on union business during the last 2
calendar years was brought out and it was seen that it was
part of the established and unprotested practice.?
This is not to say that the Company could not properly
attempt to limit the extent of O'Connelll's paid nonwork
activity or to require that he report. But as a newly
imposed condition of access and, beyond that, as a
modification of an agreed-upon provision, all of this is
properly and necessarily subject to collective bargaining. It
is specious to argue that free movement within the plant
area was not denied; it was now permitted only on
conditions which neither the contract nor practice re-
quired. Any attempt unilaterally to modify this would be
and was violative, and the reference to the number of
hours O'Connell spent was but a digression from the issue.
Quite as much a digression was reference to the fact that
other and lesser union representatives spent far less time
than did O'Connell on grievance business.
O'Connell explained why he refused to notify his own
and other supervisors in advance of his excursions through
the plant. Again, the issue is not the sufficiency of such
reasons. The fact is that the practice without such
notification or reporting was well and for a long time
established. Even if O'Connell in a weak moment agreed to
report and then quickly changed his mind, the requirement
remained that the Company bargain with the Union
concerning a change in the practice.
The necessity therefor was recognized by the Company
in 1967, when it proposed the following modification in the
contract: "Under Article XIV, add provision that a
Company representative shall be notified when a Union
Official enters a department to which he is not assigned
and shall be advised of such visit." According to the
Union, the Company withdrew that proposal; according to
the Company, the parties were to confer on the matter
further. Even in the latter event and regardless of who had
the burden of pressing for negotiations looking to a change
or no change, there certainly was no bargaining, much less
bargaining to an impasse," on the question and the
Company thereafter proceeded unilaterally. The matter
was not thereafter "worked out," nor is there any evidence
of an attempt to work it out in negotiations between the
Company and the Union during the period of almost 3
years which have elapsed since the proposal was made. Not
even during the 1969 negotiations looking to renewal of the
of hours allowed had not been expended at the time of trial.
8 Cf. The Proctor & Gamble Manufacturing Company, 160 NLRB 334,
336,339,426.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement was there discussion between the parties
concerning the movement of union officials through the
plant.
In short the issue is not the relative merits of the status
quo or any attempt to modify it, but the Company' s efforts
to effect modification outside of and in disregard of the
bargaining machinery; and the action which it thereupon
took in warning , suspending , and then discharging O'Con-
nell. The very terms of the agreement and the practice long
followed here distinguish this case from those cited by the
Company.
Aside from the fact that the demand that he report
represented a departure from the long- recognized practice
and accepted arrangement between the Company and
himself , O'Connell's reason for not announcing in advance
where he was going was plausible (if this be relevant to the
issue). He explained that to announce where he was going
would be to eliminate any possibility of catching violators
of certain provisions of the contract. If other occasions
permitted prior notice, such possibilities were not suggest-
ed; they would in any case have constituted a modification
of the existing procedure and were thus subject to
negotiation . Even without materially changing the estab-
lished procedure, the Company could reasonably have
suggested some elements, such as the estimated time of
return , and omitted others; but this it did not do. The new
requirements that O'Connell report were insisted upon and
thereafter referred to in toto.
By amendment to the complaint, we also have the
allegation that the Company refused to implement three
contractual conditions . (Two other items were dismissed
on consent .) If there has been no outright refusal by the
Company, these items were litigated to the point of
establishing that the Company has failed to implement
some of these conditions and has, therefore , fallen short of
its obligation to bargain . The first of these was that the
Company reinstate the practice of making awards to
employees who attain 25 years of service with it. There was
some discussion concerning this item between O'Connell
and Kayos. The latter testified that O'Connell was to
supply certain information to him concerning watches and
engraving , and that he did that about the first of the year.
While intending to carry out this obligation, the Company
at the time of trial was still obtaimng information
concerning watches and had not yet decided whether to
award watches or cash. The point is minor ; but the
Company's failure to act on this minor point indicates a
disdain for its obligations under the contract and for the
duty to bargain collectively.
The second item relates to the requirement in the
contract between the parties (as extended by memorandum
of agreement which was entered into on August 18 and on
the basis of which the strike was terminated and the
employees returned to work) that the Company prepare
and distribute a copy of the contract to all employees in
the unit . Although O'Connell had spoken to Kajos about
this many times, the contract as extended has not been
distributed. Here again is a company violation of its
obligation.
The third item called for implementation of warning
rules with respect to disciplining employees. O'Connell
testified that the Company agreed to set up a formal
warning system within 2 months after the extension in
August; it proposed a set of regulations but O'Connell
objected to them; they were to be discussed later but the
parties "never got around to" it . There were in fact a
number of discussions , "at least once a week" for a period.
It is not clear that the Company in this connection was
guilty of any greater failure to proceed further than was the
Union. The allegations with respect to this item is
dismissed.
B. The Alleged Violation of Section 8(a)(3)
On March 17 Kajos handed O 'Connell a discharge
memorandum, which reads as follows:
The purpose of this letter is to inform you that you
are hereby discharged from the employ of National
Radio Company, Inc. effective March 17, 1970.
You have previously been issued warnings on
December 10, 1969 , December 30, 1969 , January 8,
1970 and February 26, 1970 for failure to report to your
Foreman as directed . Further, on March 6 , 1970 you
were suspended for insubordination for a similar
offense.
On March 17, 1970, you left your work area
indicating that you were going to the Personnel
Department to discuss grievances . You concluded your
business there at approximately 11:00 A.M . and failed
to return to your department to notify your supervisor
until 1 :30 P.M. Upon questioning by your supervisor,
you deliberately refused to disclose reasons for your
absence and being in Plant 2 and for not reporting
back to work earlier. Such acts of insubordination,
after numerous verbal warnings, written warnings, and
a suspension are grounds for discharge effective this
date.
Were O'Connell's refusal to disclose reasons for his
absence from his work station on March 17 a new point
standing alone , he could cite the "free movement"
provision in the contract . But the discharge memorandum
also recites and is based on the warnings given to him and
on the March 6 suspension (not the December suspension).
Much that was noted in the preceding section could but
need not be repeated here . The Company's unilateral and
violative action under Section 8 (a)(5) cannot support its
acts vis-a-vis O'Connell. The procedural changes which it
attempted prompted his refusals to obey, which the
Company now termed insubordinate . O'Connell was not
obliged to permit violation or to obey violative instruc-
tions . Warnings issued and discipline imposed unilaterally
did not create an obligation on O'Connell or warrant
action against him. The foundation being unlawful, the
Company's action based thereon is without lawful support:
O'Connell's suspensions in December and March and his
discharge violated Section 8(a)(3) of the Act, and I so find
and conclude . If O'Connell was aggressive in his union
activity , his acts were within the terms of the agreement
between the parties and the long-recognized practice.
The Company in its brief attempts to state the question
as follows:
It is submitted by the Company that whether the
Company was mistaken in laying down such rules for
NATIONAL RADIO COMPANY , INC. 541
O'Connell to follow or not really is not a paramount
question since no matter how mistaken management
was in making its rules, nothing can justify the type of
insubordinate self-help in which Mr. O'Connell en-
gaged.
But the issue is not whether the Company was mistaken
any more than it is whether O'Connell might have been
more discreet. It is rather whether the Company unilateral-
ly attempted and imposed changes in the bargaining
relationship and procedure.
The entire record indicates that, whatever might other-
wise have been accomplished, if the Company's new
administration deemed changes fair, desirable, and neces-
sary, it proceeded after the August strike without sufficient
regard for the rights of the Union as collective-bargaining
representative and of employee O'Connell under the Act.
While the facts may indicate animus toward O'Connell
because he stood alone in his continued refusal to report, a
finding of discrimination does not depend on mens rea.
The unilateral changes and failure to implement contractu-
al conditions, as well as the warnings, suspensions, and
discharge are strict liability offenses aside from considera-
tion of intent or animus .9
(b) Upon request, recognize and bargain collectively with
the Union as the exclusive representative of the employees
in the appropriate unit and embody in a signed agreement
any understanding reached.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records to
facilitate the checking of the amount of backpay due.
(d) Post at its place of business in Melrose , Massachu-
setts, copies of the attached notice marked "Appendix." 12
Copies of said notice, on forms provided by the Regional
Director for Region 1, shall be posted by the Company,
after being duly signed by its representative, immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to its employees are customari-
ly posted. Reasonable steps shall be taken by the Company
to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 1, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.13
RECOMMENDED ORDER10
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
I recommend that the Company, National Radio Compa-
ny, Inc., Melrose, Massachusetts, its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union as the
exclusive representative of all employees in the appropriate
unit by unilaterally changing the established policy of
permitting union officials free access to and free movement
in the plant area , and by failing to implement the
conditions of the agreement between the Company and the
Union.
(b) Discouraging membership in Local No. 231, Interna-
tional Union of Electrical, Radio & Machine Workers,
AFL-CIO, or in any other labor organization by discrimi-
natorily suspending or discharging any of its employees or
discriminating in any other manner in respect to their hire
or tenure of employment, or any term or condition of
employment.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to William F. O'Connell immediate and full
reinstatement to his former position or, if that no longer
exists , to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and
make him whole for any loss of pay sustained by reason of
the discrimination against him by the suspensions and
discharge, with interest to be computed in the customary
manner;11 and notify him, if he is presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon proper application after discharge
from the Armed Forces.
9 Cf. Crown Cork & Seal Company, Inc., 182 NLRB No. 96.
10 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order herein
shall, as provided in Section 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.
11 The Chase National Bank of the City of New York, San Juan, Puerto
Rico, Branch, 65 NLRB 827; Crossett Lumber Company, 8 NLRB 440;
Republic Steel Corporation v. N.L.R.B., 311 U.S. 7; F. W. Woolworth
Company, 90 NLRB 289, 291-294; Isis Plumbing & Heating Co., 138 NLRB
716.
12 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
13 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 1 , in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Local No.
231, International Union of Electrical, Radio &
Machine Workers, AFL-CIO, or any other labor
organization by discriminatorily suspending or dis-
charging any of our employees or discriminating in any
other manner in respect to their hire or tenure of
employment, or any term or condition of employment.
WE WILL NOT unilaterally change the established
policy of permitting union officials free access to and
free movement in the plant area, or fail to implement
the conditions of the agreement between the Company
and the Union.
WE WILL NOT in any other manner interfere with,
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restrain, or coerce our employees in the exercise of their
right to self-organization , to form labor organizations,
to join or assist Local No. 231, International Union of
Electrical, Radio & Machine Workers, AFL-CIO, or
any other labor organization , and to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized in Section
8(a)(3) of the Act.
WE WILL offer to William F . O'Connell immediate
and full reinstatement to his former position or, if that
no longer exists , to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges , and make him whole for any loss of pay
suffered as a result of the discrimination against him.
WE WILL notify William F . O'Connell if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accord-
ance with the Selective Service Act and the Universal
Military Training and Service Act, as amended, after
discharge from the Armed Forces.
WE WILL recognize and bargain, upon request, with
Local No. 231, International Union of Electrical Radio
& Machine Workers , AFL-CIO, as the exclusive
representative of all employees in the bargaining unit
described herein with respect to rates of pay, hours of
employment , or other conditions of employment, and
embody in a signed agreement any understanding
reached . The bargaining unit is:
All production and maintenance employees of
the Company employed at its Melrose plant
including model shop employees , factory clericals
and leadman exclusive of office clerical employ-
ees, guards , professional employees and all
supervisors as defined in the Act.
All our employees are free to become or remain, or
refrain from becoming or remaining , members of this
Union or any other labor organization , except to the extent
that such right may be affected by an agreement requiring
membership as a condition of employment as authorized in
Section 8(a)(3) of the Act.
NATIONAL RADIO COMPANY,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Region 1, 20th Floor, John F. Kennedy Federal Building,
Cambridge & New Sudbury Streets, Boston , Massachusetts
02203, Telephone 617-223-3300.