North Shore Publishing Co.

National Labor Relations Board - Board Decisions

Sep 18, 1973

206 N.L.R.B. 42 (N.L.R.B. 1973)

42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
North Shore Publishing Co. and Milwaukee Printing
Pressmen and Assistants ' Union No. 7 affiliated with
the International Printing Pressmen and Assistants'
Union of North America, AFL-CIO. Case 30-
CA-2159
September 18, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On March 19, 1973, Administrative Law Judge
Marion C. Ladwig issued the attached Decision in this
proceeding. Thereafter, General Counsel filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The complaint alleges in substance that Respon-
dent violated Section 8(a)(1) and (3) of the Act by
interfering with the right of employee Roland Kabitz-
ke to file a grievance and pursue it through the Union
and by discriminatorily discharging him for refusing
to abandon his grievance.
The material facts as found' by the Administrative
Law Judge are uncontroverted I and may be briefly
summarized as follows. The Charging Party, Press-
men, has represented pressroom employees of the
Employer since 1968. The International Typographi-
cal Union has represented the Employer's composing
room employees.
Kabitzke, a member of the Pressmen, was intermit-
tently 'employed by Respondent as a pressroom flyer
from 1966 until November 16, 1972, when he was
discharged.2 In September, the Pressmen initiated a
strike against the Employer for the purpose of obtain-
ing recognition for the flyers and a contract. On Sep-
tember 6, Kabitzke joined the strike and 'did not
return to work until its termination on September 13 .3
Upon his return to work, Respondent asked Kabitzke
i In the absence of exceptions to the Administrative Law Judge's factual
findings, we hereby adopt them as our own for our determination herein.
2 All events are in 1972 except as otherwise stated.
3 Employees represented by both Unions struck the Employer in Septem-
ber. while the strike of pressroom employees was of only I week's duration
and resulted in the current collective-bargaining agreement between the
Company,and Pressmen, the strike of composing room employees still con-
tinues, without resolution of the dispute between the Company and Typogra-
to perform work in the unit of Typographers who
were still out on strike. He refused to perform such
work, and shortly thereafter Pressroom Foreman Me-
kow twice temporarily laid off Kabitzke due to lack
of work.
While Kabitzke said nothing about the first layoff,
on October 31 he filed a grievance relating to the
second layoff, alleging that the layoff violated the
seniority and notice requirements of the union con-
tract. Kabitzke's grievance was submitted by Union
Steward Zamow to Foreman Mekow in accordance
with the contractual procedure. Later that week, Me-
kow gave his written answer denying the grievance.
Zamow subsequently pressed Mekow on the griev-
ance indicating that he would proceed to the second
step in the grievance procedure and Mekow stated, in
Zamow's words: "I don't know what Mr. Polka
[Respondent's president] is going to say when he sees
this, but Kabitzke better really watch himself.".
On the following Monday, November 6, Polka in-
structed Mekow to bring Kabitzke to his office. On
the way, Mekow told Kabitzke in Kabitzke's words:
"I should drop my grievance because it would be
easier on me because Polka was a little mad about
it." In the office, Polka told Kabitzke to "drop it
because he [Polka] had a number of things he could
file grievances against me. . . ." Kabitzke, after re-
fusing to drop the grievance, returned to work.
Immediately after Kabitzke left the office, Polka
told Mekow to prepare a list of Kabitzke's job faults
so that he could file a countergrievance.4 Mekow and
the plant superintendent then prepared a list of five
alleged faults and showed it to Polka, who added two
additional purported derelictions. Later that same
day, Mekow telephoned Zamow and told him that he
had given the Kabitzke grievance to Polka, and that
"Mr. Polka was upset about it, and wanted to know
if there was a . . . grievance form that the Company
could file as countercharges against Kabitzke's griev-
ance."
Two days later, on November 8, Polka was advised
by the Union that there was no grievance form to be
used to list the alleged work derelictions as a counter-
charge. Mekow then told the Union that Kabitzke
was being discharged because of a list of work dere-
lictions. Immediately thereafter Mekow told Kabitzke
he was discharged, effective November 16. Later that
pliers. In the strike settlement agreement with the Pressmen, Respondent
agreed to recognize Pressmen as representative of the pressroom flyers, and
the ensuing contract granted the flyers a substantial wage increase.
4 Mekow testified that Polka requested him to prepare the list of job faults
immediately following the meeting in which Kabitzke refused to drop his
grievance. Although Polka was unable to pinpoint the timing of his request
to Mekow, Polka did not deny that he made the request, nor did he specifical-
ly contradict Mekow's testimony In these circumstances, we adopt the Ad-
ministrative Law Judge's finding that the request for a list of Kabitzke's job
faults proximately followed Kabitzke's refusal to drop his grievance. ,
206 NLRB No. 7
NORTH SHORE PUBLISHING CO. 43
day, the Union, without filing any grievance, filed
charges in the instant case, in substance, alleging that
Kabitzke was discriminatorily discharged for having
filed the grievance.
Based upon the foregoing facts, the Administrative
Law Judge dismissed the complaint, finding that the
matters contained therein should be deferred to the
contractual grievance and arbitration procedure in
the manner prescribed by Collyer Insulated Wire, A
Gulf and Western Systems Co.5 We do not agree.
As we said in Joseph T. Ryerson and Sons, Inc.," a
threat of reprisal for participation in the grievance
procedure "strikes at the foundation of that grievance
and arbitration mechanism upon which we'have re-
lied in the formulation of our Collyer doctrine. If we
are to foster the national policy favoring collective
bargaining and arbitration as a primary arena for the
resolution of industrial disputes, as we sought to do in
Collyer, by declining to intervene in disputes best set-
tled elsewhere, we must assure ourselves that those
alternative procedures are not only `fair and regular'
but that they are or were open, in fact, for use by the
disputants. These considerations caution us against
our abstention on a claim that a respondent has
sought, by prohibited means, to inhibit or preclude
access to the grievance procedures." This led us to
conclude in that case that we should address the mer-
its of the alleged statutory violation.
In the instant case the complaint contains a specific
allegation that Kabitzke was discharged for invoking
the very grievance procedure to which Respondent
would have us defer. We cannot entrust such a com-
plaint to a procedure the integrity of which is directly
challenged by the allegations of the complaint itself.
For the reasons set forth in Ryerson, therefore, we do
not believe this to be an appropriate case for deferral
under Collyer."
In now addressing ourselves to the merits of the
complaint's allegations, we find, in accord with the
Administrative Law Judge's findings, that prior to
Kabitzke's filing of the grievance there was never any
suggestion by Respondent that his work derelictions
were serious enough to warrant discharge or other
disciplinary action. No exceptions were taken to the
Administrative Law Judge's findings that Polka mani-
fested animosity toward Kabitzke's filing of the griev-
ance, that both Polka and Mekow suggested that
reprisals would ensue if the grievance were not with-
drawn, that after the discussion in Polka's office on
192 NLRB 837.
e 199 NLRB No. 44.
7 Although Member Fanning agrees with our disposition herein, he does
not subscribe to his colleagues ' views regarding Collyer, and the policy of
deferral enunciated in that and subsequent cases. See his dissent in Collyer
Insulated Wire, supra.
November 6` Polka directed Mekow to draw up a list
of derelictions, and that subsequently KabitzkeE was
discharged for those derelictions after Respondent
decided it could not file a countergrievance. Given
these now uncontroverted facts, it seems clear to us
that Kabitzke's discharge was but an effectuation of
the threatened reprisals, which would not, in fact,
have occurred were it not for Kabitzke's filing, his
refusal to drop, and the Union's pressing of, the griev-
ance. Accordingly, we find that Kabitzke's discharge
interfered with his rights and the rights of other em-
ployees to file a grievance in violation of Section
8(a)(1). We also find that Kabitzke's discharge dis-
couraged his union activities in violation of Section
8(a)(3).
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) and it will effectuate
the purposes of the Act to assert jurisdiction herein.
2. The Union is a labor organization within the
meaning of Section 2 (5) of the Act.
3. By discharging employee Roland Kabitzke be-
cause he filed a grievance and engaged in union activ-
ities in connection therewith,' Respondent has
violated Section 8(a)(1) and (3) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in cer-
tain unfair labor practices, we shall order that it cease
and desist therefrom and that it take, certain affirma-
tive action designed to effectuate the purposes and
policies of the Act. As the discharge of an employee
for union activities goes to the very heart of the Act,'
we find that a broad cease-and-desist order is war-
ranted.
It has been found that Respondent unlawfully dis-
charged Roland Kabitzke effective November 16,
1972. Respondent is, therefore, ordered to offer Ka-
bitzke immediate and full reinstatement to his former
position or, if such position no longer exists, to a
substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and to
make him whole for any loss of earnings he may have
suffered as a result of the discrimination against him
by payment of a sum equal to that which he would
normally have earned, absent the discrimination,
from November 16, 1972, to the date of Respondent's
offer of reinstatement, with backpay and interest
s Entwistle Manufacturing Company, 23 NLRB 1058,
44 DECISIONS OF NATIONAL LABOR" RELATIONS BOARD
computed in accordance with the Board's established
standards.9 Respondent 'is also ordered to preserve
and make available to the Board, upon request, all
payroll records and reports and all other records ne-
cessary and useful to determine the amount of back-
pay and the right to reinstatement under the terms of
this Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor 1.ela-
tions Board hereby orders that Respondent, North
Shore Publishing Co., Milwaukee, Wisconsin, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Drawing up a list of work derelictions, dis-
charging, or otherwise discriminating against any em-
ployees for the purpose, in whole or in part, of
discouraging the filing or processing of grievances, or
membership, support, and activity in Milwaukee
Printing Pressmen and Assistants' Union No. 7 affili-
ated with the International Printing Pressmen and
Assistants' Union of North America, AFL-CIO, or in
any other labor organization.
(b) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
their rights of self-organization, to form, join, or assist
labor organizations, to bargain collectively through
representatives of their own choosing, and to engage
in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or
to refrain from any and all such activities.
2. Take the following affirmative action necessary
to effectuate the purposes and policies of the Act:
(a) Offer to Roland Kabitzke immediate, and full
reinstatement to his former position or, if that posi-
tion no longer exists, to a substantially equivalent
position, without prejudice to his seniority and other
rights and privileges.
(b) Make whole the above-named employee, in the
manner set forth in the section herein entitled "The
Remedy," for any loss of pay and benefits he may
have suffered by reason of the Respondent's discrimi-
nation against him.
(c) Expunge any record or list of alleged work dere-
lictions used as a pretext for the above-named
employee's discharge. ,
(f) 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 necessary to analyze the amount of
backpay due under the terms of this Order.
(g) Post at its,place of business in Milwaukee, Wis-
consin, copies of the attached notice marked "Appen-
dix." 10 Copies of said notice, on forms provided by
the Regional Director for Region 30, after being duly
signed by Respondent's authorized representative,
shall be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(h) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
9 F. W. Woolworth Company, 90 NLRB 289; Isis Plumbing and Heating
Co., 138 NLRB 716.
10 In the event that this 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 read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer Roland Kabitzke his former job
or, if such job no longer exist, a substantially
equivalent position, without prejudice to his sen-
iority or other rights and privileges, and WE WILL
make him whole for any loss of pay and benefits
he may have suffered by reason of our discrim-
ination against him together with interest thereon
at 6 percent per annum.
WE WILL NOT draw up a list of work derelictions
or take any other punitive action to discourage
the filing or processing of grievances or any other
lawful union activity.
WE WILL NOT discharge or otherwise discrimi-
nate in regard to the hire and tenure of employ-
ment or any term or condition of employment of
our employees because of their membership in
and activities on behalf of the Union herein, or
of any other labor organization of their choice.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form, join, or assist labor organizations, includ-
ing the Union herein, to bargain collectively
through a bargaining agent chosen by our em-
ployees, to engage in concerted activities for the
NORTH SHORE PUBLISHING-CO. 45
purpose of collective bargaining or other mutual
aid or protection, or to refrain from any such,
activities.
NORTH SHORE PUBLISHING
Co.
(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 compli-
ance with its provisions may be directed to the
Board's Office, 2d Floor, Commerce Building, 744
North 4th Street, Milwaukee, Wisconsin 53203, Tele-
phone 414-224-3861.
DECISION
STATEMENT OF THE CASE
MARION C. LADwiIG, Administrative Law Judge: This case
was tried at Milwaukee, Wisconsin, on February 6-7, 1973.
The charge was filed by the Union on November 16, 1972,'
and the complaint was issued on December 21. The com-
plaint alleges that the Company, the Respondent, dis-
charged an employee for filing a grievance , in violation of
Section 8(a)(1) and (3) of the National Labor Relations Act.
The threshold question is whether the Board, under the
Collyer doctrine, should defer to the contractual grievance
and arbitration' procedure , when an employee is alleged to
have been discharged for attempting to utilize the grievance
procedure to resolve an earlier dispute.
Upon the entire record,2 including my observation of the
demeanor of the witnesses, and after due consideration of
the General Counsel's brief, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Company, a Wisconsin corporation, is engaged in the
printing and publishing business at its plant in Milwaukee,
Wisconsin, where it annually receives materials valued in
excess of $50,000 directly from outside the State and per-
forms services valued in excess of $50,000 for customers
located outside the State . The Company admits , and I find,
that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and that the
All dates are in 1972 unless otherwise stated.
z The General Counsel's unopposed motion to correct official transcript,
dated March 5, 1973, is granted and the transcript is corrected accordingly.
Union is a labor organization within the meaning of Section
2(5) of the Act.
IL ALLEGED UNFAIR LABOR PRACTICES
A. Discharge of Employee
About October 31, pressroom flyer Roland Kabitzke filed
a grievance alleging that Pressroom Foreman Roger Mekow
laid him off without proper notice and out of seniority. Only
one other grievance had been filed in the 5 years since
Eugene Polka became president of the Company . The earli-
er grievance was filed by Union Steward (or Chapel Chair-
man) Walter Zamow after President Polka suspended him
for 3 days in January, telling him (as elicited by company
counsel upon cross-examination of Zamow at the trial here-
in) that Polka was "going to- have to do something to show
everybody around here that I am running this Company
and not the Union ." (Thereafter, pursuant to charges filed
by the Union, the parties signed a formal settlement agree-
ment and the Board entered a decision and order in Case
30-CA-1861 , ordering the Company to cease and desist
from discriminating against union stewards , to pay Zamow
for 3 days of lost earnings , and to expunge records of his
suspension , as well as to bargain upon request with the
Union by supplying four separation items of information.
The earlier grievance was evidently dropped.)
Union Steward , Zamow submitted Kabitzke's grievance
to Foreman Mekow , who gave his written answer later in
the week, denying the grievance. When Zamow then pressed
the grievance further, writing on the grievance form that it
was a bona fide grievance , Mekow stated in effect, as Za-
mow credibly testified, "I don't know what Mr. Polka is
going to say when he sees this, but Kabitzke better really
watch himself."
On the following Monday, November 6, President Polka
instructed Foreman Mekow to bring Kabitzke to the office.
On the way, as Kabitzke credibly testified, Mekow suggest-
ed that "I should drop my grievance because it would be
easier on me because Polka was a little mad about it." In
the office, Polka himself suggested that "I should drop it
because he had a number of things he could file grievances
against me ." (Polka admitted that he may have "asked Mr.
Kabitzke to drop his grievance because [Polka] had some
grievance against him.") Kabitzke refused to drop the griev-
ance and returned to work. Thereupon, as Foreman Mekow
admitted, Polka indicated he wanted a list of Kabitzke's job
faults. Mekow and the plant superintendent prepared a list
of five purported faults, and showed it to Polka who added
an additional two purported faults. Later that day, Mekow
telephoned Steward Zamow (who had not been present in
the conference with Kabitzke), reported that he had given
the Kabitzke grievance to Polka, and stated (in Zamow's
words) "Mr. Polka was upset about it, and he wanted to
know if there was a . . . grievance form that the Company
could file as countercharges against Kabitzke 's grievance."
(Emphasis supplied. In Mekow's pretrial affidavit, which
the Company introduced into evidence, Mekow stated that
the purpose of the list of job faults "was to use it as a
counter-attack to Kabitzke's grievance and so that we could
get rid of him and terminate his employment.") Two days
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
later, on November 8, after learning that there was no griev-
ance form to be used to list the seven purported job faults
as a countercharge , the Company announced its decision to
discharge Kabitzke, effective November 16.
er the Board should assert jurisdiction to protect employee
rights, after they have been disregarded by a Respondent
who has demonstrated a propensity to subvert Section 7
rights."
B. Contractual Provisions
The new collective -bargaining agreement (which was en-
tered into after the Union struck in September ) is effective
from April 1 , 1972, through March 31, 1975 . Section 5 of the
agreement permits the Company to discharge employees for
"proper cause." Section 6, the grievance and arbitration
procedure, covers "any dispute between the Company and
the Union," provides for an impartial arbitrator , whose de-
cision shall be "final and binding on all parties," and states
that "the parties to this agreement accept those procedures
as the sole and exclusive method of seeking adjustment" of
grievances or disputes . The agreement does not specify what
authority the authorization has to remedy contract viola-
tions. The Company decided at the trial , and,offered, to
waive the contractual requirement that grievances be sub-
mitted within 10 days.
C. Proposed Deferral to Arbitration
1. Contentions of the parties
In its answer, the Company raised as an affirmative de-
fense the existence of the contractual grievance procedure
as the proper mechanism for resolving the dispute over
Kabitzke's grievance . (The Company did not argue this
point at the trial and did not file a brief.)
The General Counsel contends that the Board's jurisdic-
tion must be asserted in this case for a number of reasons.
He argues that "the dispute is not over the terms of the
contract, but whether Kabitzke was discharged for filing a
grievance," and that "it would be most unseemly to require
the Union to now use the grievance procedure , after Kabitz-
ke was discharged for invoking it." He also contends that
the Company 's "complete disregard for Section 7 employee
rights will not be remedied through an arbitrator's deci-
sion," and that Kabitzke's discharge "necessarily has a chill-
ing effect on other unit members who might have occasion
to file a written grievance."
The General Counsel further argues that unlike Collyer
Insulated Wire, 192 NLRB 837 (1971), and National Radio
Co., 198 NLRB No. 1(1972), "which at bottom involved
disputes over meanings of contract provisions," the issue
here "involves a discharge motivated by animus towards
employee invocation of the contract's grievance proce-
dure." He contends that whereas the parties in those cases
previously had harmonious and productive relationships,
the Company "has been faced with three strikes since Polka
became president 5 years ago"; the strike by the I.T.U.
(which joined the Union in the September strike ) has not yet
been resolved , most of the strikers have been replaced, and
'the parties are no longer negotiating ; that Zamow was sus-
pended in January for carrying out duties in connection
with being the Union 's steward, and the Board's June 16
decision and order "shows that Respondent was found guil-
ty in taking such action . . . . The entire issue . . . is wheth-
2. Concluding findings
In Collyer, 192 NLRB 837 , the Board held that "When the
parties have contractually committed themselves to mutual-
ly agreeable procedures for resolving their disputes during
the period of the contract, we are of the view that those
procedures should be afforded full opportunity to function."
(Emphasis supplied .) The Board later deferred to arbitra-
tion in National Radio, 198 NLRB No. 1, where the question
whether the discipline imposed by the employer had been
for cause, or for discriminatory reasons , was pending before
an arbitrator . In neither case had one of the contractual
parties obstructed resort to the grievance and arbitration
procedure.
In a more recent case, Joseph T. Ryerson & Sons, 199
NLRB No. 44 ( 1972), the Board did not defer to arbitration
where there was a purported "threat of reprisal " against an
employee for his participation in the grievance procedure.
The Board distinguished National Radio on the grounds,
first, that the asserted threat unaccompanied by any disci-
pline was not clearly arbitrable under the contract, and
second, that there was no showing that an arbitrator would
have the authority under the contract to consider or remedy
such interference . The Board concluded:
We are constrained to add that the violation with
which this Respondent is charged , if committed, strike
at the foundation of that grievance and arbitration mecha-
nism upon which we have relied in the formulation of
our Collyer doctrine . If we are to foster the national
policy favoring collective bargaining and arbitration as
a primary arena for the resolution of industrial dis-
putes , as we sought to do in Collyer, by declining to
intervene in disputes best settled elsewhere , we must
assure ourselves that those alternative procedures are not
only "fair and regular" [citing Spielberg Mfg. Co., 112
NLRB 1080 (1955)] but that they are or were open, in
fact, for use by the disputants. These considerations cau-
tion against our abstention on a claim that a respon-
dent has sought, by prohibited means, to inhibit or
preclude access to the grievance procedures . It is this
consideration which persuades us that the issues of
arbitrability and contract coverage, discussed above,
should not here be left to resolution by the arbitrator
as might be appropriate under other circumstances.
(Emphasis supplied.) -
Thus, in Ryerson, there was a purported "threat of repri-
sal" against an employee for his participation in the griev-
ance procedure , whereas in the present case , the complaint
alleges the outright discharge of an employee for filing a
grievance . It would seem that a discharge for filing a griev-
ance, just as much as such a threat, "strikes at the founda-
tion of that grievance and arbitration mechanism," and'
would "inhibit or preclude access to the grievance proce-
dures," by engendering fear of reprisal in the minds of the
NORTH SHORE PUBLISHING CO. 47
employees.
However, the Board has not as yet extended its above-
quoted rationale in the Ryerson case to cases in which the
alleged law violation is clearly arbitrable-as Kabitzke's
discharge is here, under the "proper cause" provision in the
agreement If Kabitzke had filed a grievance, the case could
have been taken to an arbitrator , who evidently would have
been authorized (although the agreement does not specifi-
cally so provide) to reinstate Kabitzke with backpay in the
event the arbitrator found he was discharged without proper
cause.
There may be merit to General Counsel 's argument that
an arbitration award would not be effectual in vindicating
the employees ' Section 7 rights, in view of the purported
"chilling effect" Kabitzke's discharge "necessarily" has "on
other unit members who might have occasion to file a writ-
ten grievance ." In the absence of a further remedy , assuring
them that the Company will cease and desist from engaging
in such a reprisal in the future, other employees may be
reluctant to risk possible discharge , and litigation before an
arbitrator, as the price for. filing a grievance.
In view of the Board 's policy of ensuring that contractual
grievance and arbitration procedures "be afforded full op-
portunity to function" and be "open, in fact, for use by the
disputants," the Board may as a matter of policy want to
decide that where the complaint alleges that "a respondent
has sought, by prohibited means"whether by discharge,
threat, or otherwise-"to inhibit or preclude access to the
grievance procedures," it will rule on the merits of the al-
leged statutory violation and require a remedy , in appropri-
ate cases, not only of remstatement and backpay, but also
the posting of a formal notice and the entering of a formal
cease-and-desist order, backed by the authority of the Gov-
ernment , to dispel the employees ' fear of reprisal.
Meanwhile , however, I consider myself bound by the
Board's decision in National Radio, and defer to the con-
tractual grievance and arbitration procedure, without ruling
on the merits of the seven purported job faults which the
Company listed as the reasons for the discharge.
CONCLUSIONS OF LAW
'I. The alleged discriminatory discharge of Roland Ka-
bitzke is arbitrable under the grievance and arbitration pro-
cedure in the collective-bargaining agreement between the
Company and the Union.
2. Pursuant to the Board's decision in the National Radio
case, the complaint herein should be dismissed , subject to
the reservation of appropriate jurisdiction.
[Recommended Order omitted from publication.]