National Service Industries, Inc.

National Labor Relations Board - Board Decisions

Aug 28, 1975

220 N.L.R.B. 13 (N.L.R.B. 1975)

DUCHESS FURNITURE 13
Duchess Furniture, Division of National Service In-
dustries, Inc. and Laurie Farber. Case 9-CA-8999
August 28, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On April 30, 1975, Administrative Law Judge Lo-
well Goerlich issued the attached Decision in this
proceeding . Thereafter , Respondent and counsel for
General Counsel filed exceptions and supporting
briefs.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three -member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and for reasons set forth below finds in accord with
the exceptions of all parties that the Administrative
Law Judge erred in deferring this proceeding to the
grievance arbitration process , and that this case
should therefore be remanded to the Administrative
Law Judge for disposition on the merits . The Board
has accordingly decided to affirm the Administrative
Law Judge's Decision only to the extent consistent
herewith.
The complaint alleges that Respondent discharged
employee Laurie Farber for reasons prohibited by
Section 8(a)(1) and (3) of the Act. Respondent de-
nied that Farber was discriminatorily discharged. At
the outset of the hearing herein , Respondent claimed
that pursuant to the provisions of the collective-bar-
gaining agreement between it and the Union, the
propriety of its action was a matter which should be
deferred to the grievance-arbitration provisions of
the contract ; accordingly it moved that the entire
proceeding be deferred to arbitration in accord with
the'policies set forth in Collyer Insulated Wire, A Gulf
and Western Systems Co. 2 General Counsel and the
Charging Party opposed this motion , alleging that
there had been a history of friction between the
Charging Party and the Union. They accordingly as-
serted that there existed a serious question as to
whether the Union would fairly and adequately rep-
resent Farber's interest in the arbitral process. The
i International Union of Electrical , Radio and Machine Workers, AFL-
CIO-CLC, and its Local No. 781, herein collectively called the Union,
which was party to a collective -bargaining agreement with Respondent ef-
fective during all relevant times herein , was allowed to intervene in these
proceedings . The Union also filed exceptions and a supporting brief with
the Board.
2 192 NLRB 837 (1971). -
issue thus posed as to the propriety of deference to
the arbitral process was litigated during the first day
of the hearing at the end of which the Administrative
Law Judge granted Respondent's deferral motion
subject to certain conditions. These conditions "al-
lowed deferral only if the Union furnished a repre-
sentative agreeable to Farber and the General Coun-
sel to represent her in the arbitration proceedings or
furnished, at its expense, a representative of -her
choice." He then granted continuance of the hearing
to determine whether the parties could comply with
his conditions.
The conditions for deferral were not met. Accord-
ingly, the hearing resumed and the parties presented
evidence on the merits of the alleged violations. At
the close of the hearing on the merits, Respondent
formally withdrew its motion for deferral. Despite
the fact that none of the parties were now willing to
proceed to arbitration, the Administrative Law Judge
nonetheless refused to consider the merits of the
complaint. He ruled that the Union and the Respon-
dent should properly proceed to arbitration, and he
recommended an order directing them to do so. He
grounded this ruling on the fact that he had earlier
erred in establishing conditions to the deferral which
enabled the parties to frustrate Board policy as set
forth in Collyer, supra, and subsequent cases.
As noted, all of the parties in this proceeding have
excepted to the recommended Order and have re-
quested that the Board remand this case to the Ad-
ministrative Law Judge for his disposition on the
merits. No warrant exists for even considering
whether or not this-or any other proceeding before
the Board-may properly be deferred to arbitration
where, as here, none of the parties concerned seeks
deferral to that process.' Accordingly, we shall re-
mand this case to the Administrative Law Judge for
his disposition on the merits 4
ORDER
It is hereby ordered that, pursuant to Section
102.48 of the Board's Rules and Regulations , Series
8, as amended, Case 9-CA-8999 be, and it hereby is,
remanded to Administrative Law Judge Lowell
Goerlich for the purpose of deciding the merits of the
issues joined by the pleadings in that matter.
3 See Erie Strayer Company, 213 NLRB 344 (1974); Gary-Hobart Water
Corporation, 210 NLRB 742; The Detroit Edison Company, 206 NLRB 898
(1973); Nedco Construction Corp, 206 NLRB 150 (1973), Salt River Valley
Water Users ' Association, 204 NLRB 83 (1973)
° Chairman Murphy, who has not heretofore expressed her views on the
deferral policy enunciated in Collyer, supra, and/or its application to partic-
ular types of violation issues, deems it unnecessary to express any views on
the matter in this case . Member Fanning would not in any event have
deferred this case to arbitration for the reasons set forth in his dissent in
Collyer, supra, and subsequent cases involving motions for deferral to arbi-
tration
220 NLRB No. 6
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the Administrative
Law Judge shall prepare and serve on the parties a
Supplemental Decision in Case 9-CA-8999 contain-
ing his resolutions of the credibility of witnesses,
findings of fact, conclusions of law, and recommen-
dations; and that, following the service of such Sup-
plemental Decision on the parties, the provisions of
Section 102.46 of the Board's Rules and Regulations,
Series 8, as amended, shall be applicable.
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge: The
charge filed by Laurie Farber on December 9, 1974, was
served on the Duchess Furniture, Division of National Ser-
vice Industries, Inc., the Respondent herein, on December
12, 1974. A complaint was issued on January 24, 1975, in
which it was charged that the Respondent discriminatorily
discharged Laurie Farber, the Charging Party, on or about
December 9, 1974, in violation of Section 8(a)(3) of the
National Labor Relations Act, as amended, herein referred
to as the Act.
The Respondent filed a timely answer denying that it
had engaged in the unfair labor practices alleged.
The case came on for trial at Cincinnati, Ohio, on March
6 and 13, 1975. Each party' was afforded a full opportuni-
ty to be heard, to call, examine, and cross-examine witness-
es, to argue orally on the record, to submit proposed find-
ings of fact and conclusions, and to file briefs. All briefs
have been carefully considered.
At the trial the General Counsel moved to amend the
complaint by charging that the Respondent maintained an
illegal no-solicitation rule in form as follows: "14. Solicita-
tions of any kind without permission of the Company: 1st
offense, warning; second offense, warning; 3rd offense,
discharge." While its employees had not been so notified,
the Respondent had deleted the rule on March 7, 1975. No
evidence was offered that the rule had ever been enforced.
In view of the late offer of the proposed amendment, and
the fact that the rule is no longer in effect and the
Respondent's republication of its rules will not contain
such rule, no useful purpose will be served by granting the
motion. It is hereby denied.
FINDINGS OF FACT,2 CONCLUSIONS, AND REASONS THEREFOR
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Delaware corporation engaged at Flor-
ence, Kentucky, in the assembly of dinette sets. During the
' International Union of Electrical , Radio and Machine Workers, AFL-
CIO, C.L.C. and its Local No. 781, herein referred to as the Union, upon
motion were allowed to intervene as parties to these proceedings. The
Union was a party to a contract with the Respondent which was in effect
during the period involved in these proceedings.
2 The facts found herein are based on the record as a whole and the
observation of the witnesses.
past 12 months, which is a representative period, Respon-
dent sold products, valued in excess of $50,000, which it
caused to be shipped directly in interstate commerce from
its Florence, Kentucky, location to points outside the State
of Kentucky. During that same period, Respondent pur-
chased goods, valued in excess of $50,000, and caused such
goods to be shipped directly in interstate commerce from
points outside the State of Kentucky to its Florence, Ken-
tucky, location.
At all times material herein, Respondent has been, and is
now, an "employer" as defined in Section 2(2) of the Act,
engaged in "commerce" and in operations "affecting com-
merce" within the meaning of Section 2(6) and (7) of the
Act, respectively.
11. THE LABOR ORGANIZATIONS INVOLVED
The Unions are, and have been at all material times
herein, labor organizations within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
At all times material herein a labor agreement. was in
effect between the Respondent and the Union . Laurie Far-
ber was an employee covered by the contract and a stew-
ard of the Union.
Article III of the contract provided:
The Company or Union , either in hiring, promot-
ing, advancing , assigning to jobs, or with respect to
any other terms or condition of employment will not
discriminate against any employee because of Union
membership or activity , age, sex, race , creed , color,
marital status, or national origin.
Article XIV provided for a management rights clause as
follows:
1. The management of the plants and the direction
of the working forces, including the right to hire, sus-
pend , transfer , promote, advance or discharge for
proper cause, and the right to relieve employees from
duty because of lack of work or other legitimate rea-
sons is vested exclusively in the Company except as
specifically modified by other provisions of the Agree-
ment , and provided that this will not be used for pur-
poses of discrimination against any employee because
of bona fide activity on behalf of the Union.
It is further agreed that the above enumeration of
management rights shall not be deemed to exclude
any other rights not so enumerated.
The Company agrees not to abuse the provisions of
the Management clause.
In article XII a grievance was defined as
Any dispute or difference which may arise between
the Company and an employee , or the Union, shall be
considered a grievance. .. .
It also provided that
DUCHESS FURNITURE 15
An employee improperly discharged, suspended or
demoted , or laid off shall be reinstated to his/her for-
mer position with full back pay and seniority or given
any other appropriate redress mutually agreeable to
both parties.
In the same article a three -step grievance procedure was
established with an arbitration clause as follows:
In the event a satisfactory settlement is not made,
the grievance will be referred to an arbitrator to be
selected by the American Arbitration Association in
the event that the parties are unable to agree other-
wise . All costs and expenses incident to the arbitration
shall be shared equally by the Company and the
Union, and the award of the Arbitrator shall be final
and binding upon both parties. The Arbitrator shall
have no power to add to nor detract from this Agree-
ment.
At the trial before the introduction of any evidence, the
Respondent moved that the matter be deferred to arbitra-
tion. The General Counsel opposed the motion stating, "I
think the entire relationship between Miss Farber and es-
pecially the Local Union officials has been one replete with
antagonism and that under this case you clearly can't defer
to the arbitration process." Farber observed, "After talking
to Counsel and thinking over what the position of the
Union has been in this case all along, and what my rela-
tionship is to the Union, it seems that it will be real diffi-
cult for me to get a fair hearing at an arbitration hearing.
So I would just as soon proceed with this trial now and go
from there."
The following evidence was received on the question of
deferral.
Farber commenced her employment with the Respon-
dent in October 1972. In the spring of 1973 Farber utilized
the grievance procedure "over harassment on the seat line
while [she] was stapling." The grievance was considered by
Gareth L. Turner, general manager . Local Union President
Lawrence E. Tatum was present. Farber complained that
she "was being asked to hit 3 [her] number on the assembly
belt all the time and screamed at every time [she] didn't hit
it." Farber asserted that if she "hit" her number every time
she would be producing over 700 seats a day whereas she
was producing about the average of 350 to 450 seats a day.
During the discussion Farber observed that it was
"everybody's" problem. Turner replied, "If you speak for
anybody else I can have you fired as an agitator." The
grievance was resolved by Farber' s assignment to the weld-
ing shop.
During the summer of 1973 Local 781, which was a part
of amalgamated Local 795, voted to separate from the am-
algamated local. Thereafter, Farber joined in circulation of
3 At this time and at the time of her discharge , Farber was working on the
seat line . Her job was to staple vinyl covers on seats which were a part of
dinette sets . She, another stapler , and a loader made up a working unit. The
loader supplied the seats to the staplers. Each stapler was assigned a number
appearing on a conveyor belt which passed the stapler 's station at periodic
intervals . Each time the respective stapler's number passed , the stapler was
expected to place a finished seat on the number . When this was done it was
referred to as "hitting" the number.
a leaflet which touched on whether all the facts in the mat-
ter had been fully disclosed prior to the vote. Clyde Mains,
chief steward of Local 781, inquired of Farber whether she
circulated the leaflet. Upon receiving an affirmative an-
swer, Mains first said he would have Farber fired for "put-
ting out that leaflet" but immediately indicated he did not
mean that but meant that the Company could have her
fired.
Several weeks after the above occurrence Farber was
transferred to Superior which was "a plant in the other end
of the parking lot that was owned by the same company."
Farber filed a grievance citing harassment and "went to the
Labor Board." The case with the Labor Board was
dropped. The grievance was taken to the third step of the
grievance procedure and was submitted to the Local's
membership for a decision as to whether the grievance
should be arbitrated. At the local meeting, President Ta-
tum told the members that Farber wanted the grievance to
be arbitrated. He said, "This would mean spending $800 of
your money for a case we couldn't possibly win." "And he
didn't know why, `you would want to spend $800 of your
money for this case which would be impossible to win. But
it was up to you anyway,' and directing it to the people and
instructing them to vote on it." The Local did not vote in
favor of arbitrating Farber's grievance.
In November 1973 Farber ran for the office of union
trustee. Her name did not appear on the slate of the incum-
bents. Farber was told by a company representative that
she could not pass any union campaign literature on the
employer's premises. Nevertheless, Mains passed campaign
literature with a slate of officers appearing on it in front of
Superintendent Ben Reason's office. Farber informed
Mains that she had been told that she could not pass out
campaign literature. Mains answered, "If you have any
charges to file, you can file them after the election."
Farber lost her bid for trustee.
In November 1974 a steward vacancy occurred in
Farber's department. About 35 out of 55 employees signed
a petition indicating that "they would like [Farber] to rep-
resent them as steward." The Union suggested an election
and thereafter an election was conducted. However, during
the election, Farber asked two employees to "stand near
the ballot box and mark off how many people voted in
total so we could compare it with the total number of
votes." After the election Farber and her opponent were
told by Tatum that the election was void "because there
were people hanging around the ballot box and this was
illegal." The next day Mains or Tatum informed Farber
that she was "automatically the Union steward" since the
"other woman" had decided to drop out.
On the first day of Farber's stewardship she asked for
copies of the contract and the Union's constitution. On the
same day because she passed a contract to another employ-
ee, Farber was "two seconds" late getting to her machine.
Farber received a written warning from Foreman Betty
Holt "for violation of not being back to [her] machine on
time." Holt had been a union steward. Farber filed a griev-
ance which was resolved in her favor. "Williams was there
and he said that he thought it was . . . unfair, or that they
singled [Farber] out somehow. . . . he urged the Company
to remove the warning."
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Later at a union stewards ' meeting Mains and Tatum
said "there was a certain person who had filed a grievance
over one of the Company rules and that up until this time
they'd had a very good relationship with the Company on
these rules and the Company had been lax in enforcing
some of them but now, after this certain person had filed a
grievance over one of these rules, the Company had in-
formed them that they were going to crack down and en-
force every one of these rules strictly and that it was our
job as steward[s] to take back to the departments that all
these Company rules were now going to be enforced
11
On December 3, 1973, Farber met with Turner during
which meeting the speed of the seat line was discussed and
the amount of production expected of the employees. Dis-
agreement arose as to how much production "could come
out of each person." Turner remarked that he "expected
500 seats out of every girl on the line or else he would find
someone who could." Farber called Turner's attention to
the fact that "they didn't have a way of counting individual
production for those girls on the line." Farber observed,
" `What are you going to do, fire three people,' because
people work in a team of three." Turner responded, "We'll
have to think up something about that." After the meeting
concluded and Farber had reached the hall, Turner
"rushed out in the hall" and said , "Little girl , I've got a
great idea. I've got a new job for you. All you have to do is
stand at the end of a line and count individual production
for the people on the line. You'll help me find out who can
put out the work and who can't.... I'll have my foreman
put you on it tomorrow morning." Farber answered, "I
don't like the idea of policing the line."
On the morrow, December 4, 1974, Farber's foreman
addressed her, "Here's the paper. I want you to write down
the production of each girl on this line." Farber responded,
"Pete, I'd like you to show me where in the contract this is
a production job." He asked, "Are you refusing the job?"
Farber answered, "No, I'm not sure if it is a production
job. I'd like to talk about it." Farber's foreman "disap-
peared" and returned with a suspension notice in which it
was related , "You have violated rule 7 4 of factory regula-
tions by willful disobedience and are hereby suspended for
3 days. Future violations of this rule will cause your dis-
missal from employment at this factory."
Farber contacted Mains and Tatum and lodged a griev-
ance for harassment. After listening to Farber's complaint,
Tatum said it "sounded like a pretty easy job to him" and
Mains said that she "should be glad to be on such an easy
job because most jobs in that factory are so difficult."
Mains opined, "I think what you [Farber] should do is
apologize and say it was a misunderstanding and we'll see
if we can get you your job back." Farber responded , "'I'll
talk to Mr. Turner about the whole situation,' of him put-
ting me on that job, `But I don't want to talk to him about
allowing me to go right back on that [new] job now'." Ta-
tum and Mains responded that they didn't know what
could be done in that case. They advised against Farber's
filing a grievance. Farber filed a grievance.
4 Rule 7 provided for a warning or discharge at the Company's option for
"willful disobedience."
After the grievance was filed, Lawrence Williams an In-
ternational representative of 26 years' experience, came
into the picture. Prior to the grievance meeting with man-
agement , Williams conferred with Farber. Williams told
Farber that "it seemed wrong to him, morally wrong," but
that he had to think of the rights under the contract. Ac-
cording to Farber, Williams was "pretty sympathetic" and
gave her the idea that "he thought it was harassment." Wil-
liams advised Farber "to go back on that job" and "see if
in time" they could "work it out." 5
Farber insisted that the grievance proceed and Turner,
Woldroot, Sizemore, Tatum, Mains, Williams, and Farber
met. Turner denied harassment 6 by relying on the manage-
ment rights clause . During the meeting Williams asked
Farber whether she was "prepared to go back on that job
[the new job] right now if the Company would offer it."
Farber responded, "No. I don't feel the question of harass-
ment has been dealt with at all." Toward the end of the
meeting Farber said that she had one more question. "You
haven't answered the question of harassment. . . . Has
there ever been in this plant ever a Union person who just
did counting and nothing else."' Turner replied, "Little girl
. you're too smart for me. . . . I'm going to see my
lawyer this Saturday and I'll ask him all your questions and
I'll have my answer for you Monday." Thereafter the Re-
spondent denied the grievance and discharged Farber on
December 9, 1974.
Farber and Williams talked about the possibilities of ar-
bitration. Williams said that "he had a lot of sympathy for
[Farber's] case and repeated that he thought [she] had been
done wrong," but said, "This won't stand for a minute in
front of an arbitration judge"; "there would really be no
point to it." Farber said, "Well, if there is no point, then I
won't proceed."'
Farber filed her charge with the Board on the day she
was notified of her discharge.
Upon the conclusion of the presentation of evidence on
the Respondent's motion for deferral, both the Respondent
and the Union were agreeable to arbitrating Farber's griev-
ance.
Conclusions and Reasons Therefor
Upon the basis of the foregoing facts, I considered the
Respondent's motion for deferral. The General Counsel
cited and relied on Kansas Meat Packers, 198 NLRB 543
(1972), and Morrison-Knudson Company, 213 NLRB 280
(1974). These cases do not sustain the General Counsel's
contention, for the facts in the instant case do not support
the General Counsel's assertion that the "entire relation-
ship between Miss Farber and especially the Local Union
officials has been one replete with antagonism." On the
contrary, Farber herself testified that Williams was sympa-
6 Williams testified, "I practically pleaded with her ... to take the job so
that 1, hopefully, could get her back on the fob,"
6 Farber thought the harassment was levied on her as a union steward and
that she was being transferred to a clerical job (counting only) outside the
unit in violation of the contract.
7 According to Farber, Turner had mentioned "lots of people who had
counted production, which [she ] knew."
6 According to Williams he told Farber on December 5, 1974, that "it
would be practically impossible to win [her] case . . . in arbitration."
DUCHESS FURNITURE
thetic and felt she had been wronged. Moreover, his pro-
posed solution , i.e., take the new job and then grieve, did
not manifest union antagonism against Farber but was a
forthright approach to a sticky problem. Nor may Williams
be faulted in that he expressed an opinion that it would be
practically impossible to win Farber's case in arbitration,
which was the only basis cited in the General Counsel's
brief to support his claim that the interests of Farber and
the Union were in apparent conflict. If such were the indi-
cia of an antagonistic attitude or unfairness then those law-
yers, both Government and private, who tell their clients
the truth as they see it in respect to their chances of prevail-
ing in a legal action would be subject to the same charges.
Such a proposition is preposterous . Moreover, a represen-
tative has the moral responsibility not to keep a client in
the dark as to his learned opinion of the client 's prospects.
Indeed the facts establish that Williams was solicitous of
Farber's welfare and forthright in his conduct. I cannot
find upon the basis of the facts before me that either Wil-
liams or the Union was antagonistic toward Farber or
treated her unfairly.
In respect to arbitration, the Union was willing to accept
that responsibility. It was Farber who not only made no
request for arbitration but hastened to the Board with her
alleged complaint . So anxious was she to invoke the
Board's procedures that she did not hesitate long enough to
file a grievance respecting her alleged wrongful discharge.
Bypassing the grievance procedure under the contract, as
Farber did, is exactly what the Board in the Collyer 9 case
sought to end. In such case the Board quoted from Consoli-
dated Aircraft Corporation, 47 NLRB 694, 706 (1943), "We
therefore do not deem it wise to exercise our jurisdiction in
such a case, where the parties have not exhausted their
rights and remedies under the contract as to which the
dispute has arisen."
Thus I was correct when I deferred this matter to arbi-
tration on the totality of the foregoing facts,1° but I was in
error when I deferred the matter to arbitration and estab-
lished conditions." These conditions allowed deferral only
if the Union furnished a representative agreeable to Farber
and the General Counsel to represent her in the arbitration
proceedings or furnished , at its expense , a representative of
her choice.
Upon the request of the Respondent on March 6, 1975,
the trial was continued for I week until March 13, 1975. It
was anticipated that the above conditions would be consid-
ered in that period. After I had returned to Cincinnati,
Ohio, for the continuance of the trial on March 13, 1975, I
learned that I had been mailed a letter, dated March 10,
1975, from Farber typed on a National Labor Relations
Board, Region 9, letterhead as follows:
9 Collyer Insulated Wire, A Gulf and Western Systems Co, 192 N LRB 837
(1971).
10 In United Aircraft Corporation, 204 NLRB 879 (1973), the Board said
that upon the "totality " of the facts , "it must then be determined whether
the parties ' agreed -upon grievance and arbitration machinery can reason-
ably be relied on to function properly and to resolve the current disputes
fairl
ii
y."
In its deferrals the Board has set conditions: for example, in the Collyer
case , supra, the conditions of deferral required that the arbitration be "fair
and regular or have reached a result (not] repugnant with the Act"
17
Dear Judge Goerlich:
I have looked over the list of names, given me by Mr.
Williams, of persons who might be available to repre-
sent me at arbitration. I can't agree to be represented
by any person on the list. I wish to be represented by
private counsel of my own choosing and understand
that the I.U.E. will pay for this if they decide to take
my case to arbitration. I also understand that the fail-
ure of the I.U.E. to agree to pay for private counsel of
my choosing will result in the continuation of the trial
before you on March 13, 1975.
The Union had presented Farber and the General Coun-
sel with the names of Richard Rice, associate general coun-
sel, District 7 of I.U.E.; Ronald Janetzke, general counsel,
District 7; William Bainter, president of District 7; Ed
Fire, treasurer of District 7; and International Representa-
tives Wylie Stamper and Bartholomew Enright. Both attor-
neys, Janetzke and Rice, had been formerly employed by
the Board. Upon the receipt by the Union of a copy of
Farber's letter set out above, Williams was "instructed by
[the] legal department to withdraw all offers to go to arbi-
tration" which he did. As noted above, I then denied the
motion for deferral and proceeded to hear additional testi-
mony on the merits. In this, as I also noted above, I was in
error and do now find that in accordance with Board poli-
cy the matter must be deferred to arbitration.12
The evil in the conditions set for deferral lies in the fact
that power was given to Farber, the General Counsel, and
the Union to frustrate the Board's policy as detailed in
Collyer and subsequent cases and block the Board's statu-
tory mandate to effectuate the policies of the Act. As noted
by the Board in Collyer and by the Supreme Court in Carey
v. Westinghouse Electric Corporation, 375 U.S. 261, 271
(1964), the Board said in International Harvester Company,
138 NLRB 923, 925-926 (1962):
... it is equally well established that the Board has
considerable discretion to respect an arbitration
award and decline to exercise its authority over al-
leged unfair labor practices if to do so will serve the
fundamental aims of the Act.
The Act, as has been repeatedly stated, is primarily
designed to promote industrial peace and stability by
encouraging the practice and procedure of collective
bargaining. Experience has demonstrated that collec-
tive-bargaining agreements that provide for final and
binding arbitration of grievances and disputes arising
thereunder, "as a substitute for industrial strife," con-
12 At the close of the trial I indicated that "it may be that the matter of
deferral is still an issue in this case " and suggested that the parties "give that
some consideration in their briefs " At the trial I also observed , "There will
also be times during this proceeding when I shall probably express an opin-
ion. Any opinions which I express will be subject to review and reconsidera-
tion, if appropriate, after I have heard all the evidence and have examined
the record as a whole, and the briefs and arguments of counsel ." My ruling
denying deferral to arbitration is appropriate for review . I do not find the
General Counsel's or Respondent's citations on this subject to be apposite
under the facts of this case Moreover, the Board has said in Bio-Science
Laboratories, 209 NLRB 796, fn 3 (1974), that the question of deferral to
arbitration is a "threshold issue and findings on the merits of the allegations
should only be made if this case is not suitable for deferral "
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tribute significantly to the attainment of this statutory
objective.
Moreover, Section 203(d) of the Act declares:
Final adjustment by a method agreed upon by the
parties is hereby declared to be the desirable method
for settlement of grievance disputes arising over the
application or interpretation of an existing collective-
bargaining agreement . (Emphasis supplied.]13
Farber and apparently the General Counsel thwarted the
fundamental aims of the Act when they rejected all the
representatives proffered by the Union. In this respect they
acted arbitrarily and capriciously, for it is contrary to com-
mon sense that either Attorney Rice or Janetzke, officers of
the court, and former attorneys with the Board, would not
have satisfied the Spielberg 14 standards in the presentation
of Farber's case to an arbitrator.
The Respondent's counsel placed his finger on the evil in
the conditions set when he said, " . . . we feel you might
get into a situation where . . . the party would just refuse
to have anyone represent them, and we'd be right back
here."
The same evil which abided in the conditions lies latent
in the instant case unless an order is entered requiring the
Respondent and Union to arbitrate Farber's case, for
either the Union or the Respondent can frustrate the
Board's policy by refusing to participate in an arbitration
after the deferral. The Board with court approval in the
case of Local Unions Nos. 186, 381, 396, 467, 542, 572, 871,
898, 952 and 982, affiliates of the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, 203 NLRB 799 (1973), affd. N.L.R.B. v. Local
396, Teamsters, 88 LRRM 2589 (C.A. 9, 1975), ordered
labor unions to "[p]roceed promptly to arbitration." The
same power to order a party to proceed to arbitration exer-
cised in such case is necessary in the instant case (since
both the Union and the Respondent withdrew offers to
arbitrate prior to the close of the trial) to effectuate the
purposes of the Act and to obviate any latent possibilities
of a frustration of the Board's arbitration policies.
13 While there may be a difference of opinion as to whether arbitration is
the desirable method , nevertheless , if management and labor voluntarily
agree to be bound by an arbitration clause , they should be held to the
procedures of such clause before they may resort to the procedures under
the Act, for this is what collective bargaining is about , and this is effectuat-
ing the policies of the Act Moreover , if the parties do not want to subject
themselves to arbitration , they need not include such provision in their con-
tracts. They are free to rely wholly on the statutes made and provided or
methods other than arbitration for the settlement of their differences.
14 Spielberg Manufacturing Company, 112 NLRB 1080 (1955)
CONCLUSIONS OF LAW
1. The Unions are labor organizations within the mean-
ing of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will effec-
tuate the purposes of the Act for jurisdiction to be exer-
cised herein.
3. The Unions are parties to this proceeding and subject
to the Board's jurisdiction.
4. Jurisdiction is properly asserted in this case.
5. In conformity with Board policy this case should be
deferred to arbitration and the Union and the Respondent
ordered to proceed forthwith to arbitration in conformity
with the arbitration provisions of their labor agreement.
REMEDY
Without prejudice to any party and without deciding the
merits , it is recommended that jurisdiction be retained in
this case for a limited purpose. In order that the risk of
prejudice to any party may be eliminated, it is recommend-
ed that jurisdiction over this dispute be retained solely for
the purpose of entertaining an appropriate and timely mo-
tion by any party that either the Respondent or the Union
(a) has not complied with the Board's Order to promptly
proceed forthwith with arbitration in conformity with the
arbitration provisions of the labor agreement after the is-
suance of the Decision herein, or (b) has not resolved the
grievance by an amicable settlement in accordance with
the provisions of said labor agreement, or (c) the grievance
or arbitration procedures have not been fair and regular or
have reached a result which is repugnant to the Act.
Accordingly, upon the basis of the foregoing findings of
fact, conclusions of law, and the entire record in this pro-
ceeding, and pursuant to Section 10(c) of the Act, it is
recommended that the Board issue the following:
ORDER 15
It is hereby ordered that jurisdiction of this proceeding is
retained for the limited purpose set forth in that portion of
this Decision entitled "The Remedy."
IT IS FURTHER ORDERED that the Unions and the Respon-
dent proceed promptly to arbitration in conformity with
the labor agreement between the parties.
15 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes