Port Drum Co.

National Labor Relations Board - Board Decisions

Mar 20, 1968

170 N.L.R.B. 555 (N.L.R.B. 1968)

PORT DRUM COMPANY
Port Drum Company and Charles A. Carver
Oil, Chemical & Atomic Workers International
Union , AFL-CIO, Local No . 4-23 and Charles A.
Carver. Cases 23-CA-2493 and 23-CB-712
March 20, 1968
DECISION AND ORDER
On June 26, 1967, Trial Examiner Stanley N.
Ohibaum issued his Decision in the above-entitled
proceeding, finding that the Respondent Union had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending the
Respondent Union cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Ex-
aminer further found that the Respondent Em-
ployer had not engaged in certain unfair labor prac-
tices alleged in the complaint and dismissed the
complaint as to it. Thereafter exceptions to the
Decision and supporting briefs were filed by the
General Counsel and the Respondent Union.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial- Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner as modified below.
The facts, set out more fully in the Trial Ex-
aminer's Decision, are briefly these: The Charging
Party, Charles A. Carver, after being a member of a
predecessor to Respondent Union for many years,
withdrew from the Union in 1963 after a disagree-
ment arising from the merging of the two locals
which make up the present Respondent Union. As
the result of an argument over his paycheck on July
27, 1966, Carver was discharged for "creating an
unwarranted disturbance in the offices of the Em-
ployer." He immediately sought relief from Jack
Antilley, chairman of the Port Drum Group Work-
men's Committee of Respondent Union.' After
hearing nothing for several days, on August 8,
Carver told Port Drum Group Chairman Leroy
Thomas what had happened. Thomas called a spe-
cial membership meeting for August 9. Before the
meeting, International Union representative Harry
Burk told Carver that he had reservations about ar-
bitrating for a nonmember of the Union and that if
The Respondent Union was divided into various "groups," with each
group generally representing the employees of one employer. The "Work-
men's Committee," as described in the parties' collective-bargaining agree-
555
Carver had been in the Union he could have done
more for him. According to testimony credited by
the Trial Examiner, at the meeting Antilley got up
and stated that "he could not see why the Group
wanted to have a meeting and vote to arbitrate Car-
ver's case because Carver was not a member of the
Union."
Nothing conclusive was accomplished at this
meeting, but another meeting was scheduled for
August 16. At the August-16 Group meeting, Antil-
ley again told the Group "he couldn't see how a
union man could go along and vote for arbitration
in a case like that `and that Carver' was a nonu-
nion man and he couldn't see how they could do
it." Antilley also said that he and the rest of the
Workmen's Committee had met with Burk prior to
the meeting and had decided to recommend that
Carver's case not be arbitrated. Notwithstanding,
the membership of the Port Drum Group voted
28-6 that Carver's case be taken to arbitration.
The day after the meeting, Burk informed Carver
that "the Committee had tried to have the case not
arbitrated." A meeting of Respondent Union's Ex-
ecutive Board was held on August 22 for the pur-
pose of releasing funds for the arbitration. Contrary
to precedent, the Executive Board overruled the
Group's decision to arbitrate. There was undisputed
testimony that a Group vote authorizing arbitration
of the grievances of a Group member had in the
past been regarded as final and not subject to over-
ruling by the local Executive Board.
On August 23, the day after he learned of the Ex-
ecutive Board's action, Carver dispatched a letter
to Respondent Employer, notifying it of his "inten-
tion" to arbitrate. Carver never received a written
response from Respondent Employer.
After the testimony at the hearing, the Trial Ex-
aminer asked the Employer if it wished to settle the
matter. The Employer stated that it was in no posi-
tion to arbitrate the matter unless ordered to do so.
1. The Board adopts the finding of the Trial Ex-
aminer that the Union's action in refusing to
proceed to arbitration on Carver's grievance was
motivated by Carver's lack of membership in the
Union, and therefore in violation of Section
8(b)(1)(A).2 -
Respondent Union contends that it cannot be
found to have acted unlawfully as the record does
not clearly indicate what took place at the final
meeting of the Executive Board, at which it was de-
cided not to arbitrate Carver's case. We find no
merit in this contention for, as previously indicated,
ment, consists of four members elected from among the permanent em-
ployees to represent them in grievances with the Company
2 See , e.g , M Esken and Son, 135 NLRB 666, 670, enfd in pertinent part
312 F.2d 108 (C A. 2)
170 NLRB No. 51
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jake Antilley was chairman of the Port Drum
Group Workmen's Committee of Respondent
Union, and, as such, was responsible for investigat-
ing the grievances of Group members and reporting
on them to the Group. The record reveals that the
Executive Board depended on Antilley's report of
the facts of the case in making its decision to over-
rule the Group's vote. The record also reveals that
no one else from the Union made an independent
investigation of what had taken place; International
Representative Burk admitted that neither Office
Manager Storms nor office employee Boundreaux,
the people most closely involved in the incident,
was questioned. In view of Antilley's repeated state-
ments that Carver's case should not be arbitrated
because of Carver's lack of union membership;' the
fact that the Executive Board took the unusual ac-
tion of refusing to arbitrate a grievance after the
Group membership had overwhelmingly voted to
do so, accepting Antilley's story without question in
a situation where close scrutiny would normally
have taken place; the fact that it was Antilley who
made the presentation of the matter to the Execu-
tive Board; and also taking into consideration the
arguably minor nature of Carver's misfeasance after
16 years of service, we infer that were it not for
Carver's lack of membership in the Union, the
dispute would have been arbitrated. We conclude,
therefore, as indicated, that Respondent Union vio-
lated Section 8(b)(1)(A).'
2. In view of our finding that the Union's con-
duct with regard to Carver's grievance consituted
an 8(b)(1)(A) violation, the majority of the Board
finds it unnecessary to decide whether this conduct
also violated 8(b)(2), and we therefore do not
adopt the Trial Examiner's finding in this regard.'
3. The Board adopts the Trial Examiner's finding
that Respondent Employer's actions with regard to
the arbitration of Carver's grievance were not viola-
tive of Section 8(a)(1).
THE REMEDY
As we have found that the Respondent Union
violated Section 8(b)(1)(A) in refusing to take
Carver's grievance to arbitration, we adopt the
9 The record contains direct testimony in several instances of statements
to that effect made by Antilley In addition, Carver testified that on two oc-
casions Group Chairman Thomas told him of certain statements that Antil-
ley had made to Thomas ("I am surprised at you, Leroy, to try to go call a
special group meeting to arbitrate a case for a person who does not belong
to the Union," and that "Antilley couldn't see why the Group would ar-
bitrate this case when Carver wasn't a member of the Union and hadn't
paid any dues "), which further substantiated Antilley's animus toward
Carver The Respondent Union claims that such testimony is double hear-
say and should not have been admitted in evidence We find that there is
sufficient other evidence to sustain a finding of animus by Antilley, even
though, the above statements might properly be used as evidence under the
admission exception to the hearsay rule See, e g , Drisco Industrial Cor-
recommended remedy of the Trial Examiner in-
sofar as it requires the Respondent Union to take
Carver's case to arbitration.' We do not, however,
adopt the Trial Examiner's recommendation that
Jake Antilley and Harry Burk be disqualified from
taking part in the arbitration proceeding, for there
is no indication at this point that Respondent Union
or its officers and representative will fail to carry
out our mandate that they take Carver's grievance
to arbitration and cease discriminating in their
representation of him because of his lack of union
membership. On the other hand, we are mindful of
the Union's prior conduct in this matter and of the
possibility that Carver may have suffered irrepara-
ble damages because of the Union's unlawful con-
duct. Rather than adopt Section 8 of the Trial Ex-
aminer's Recommended Order and attempt at this
point to anticipate what damages, if any, Carver
may suffer or has suffered by virtue of the Union's
failure to arbitrate his case, we shall retain jurisdic-
tion in this matter and, may, upon timely motion of
the General Counsel or Charging Party, reopen this
proceeding for a determination of this question.
As we have affirmed the Trial Examiner's finding
that the Respondent Employer did not violate Sec-
tion 8(a)(1), we do not find it appropriate to ac-
cept the recommendation of the Trial Examiner
that the Respondent Employer be ordered to ar-
bitrate with the Respondent Union, even though
the Employer is a party to this proceeding. It is not
clear what the course of the ordered arbitration will
be, what the Employer's response will be, and what
remedy may be necessary and appropriate to cure
the alleged injury to Carver and the violation of the
law in this case. We shall, therefore, as indicated,
retain jurisdiction over the entire case pending
compliance with our order, including the comple-
tion of the arbitration that has been ordered.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent
Union, Oil, Chemical and Atomic Workers Interna-
poration, 115 NLRB 931, 932 See also Hardware Engineering Company,
Inc, 117 NLRB 896,906
"The Board does not deem it necessary to pass upon the Trial Ex-
aminer's discussion of the Miranda principle (Miranda Fuel Co , Inc , 140
NLRB 181, enforcement denied 326 F 2d 172 (C A 2)) in view of its find-
ing, supra, that the discrimination against Carver was based on his non-
membership in the Union
' Member Jenkins would find that the Respondent Union additionally
violated Section 8(b)(2) and would also, contrary to the majority , find that
Respondent Employer violated Section 8(a)(1)
"See, e g , Local Union No 12, United Rubber Workers ( The Business
League ofGadsden), 150 NLRB 312, 322, enfd in this respect 368 F 2d 12
(C A 5)
PORT DRUM COMPANY
tional Union, AFL-CIO, Local No. 4-23, its of-
ficers, agents, and representatives, shall:
1. Cease and desist from:
a. Refusing or failing to proceed promptly to ar-
bitration over the propriety of the discharge of
Charles A. Carver on or about July 28, 1966, from
his employment by Port Drum Company.
b. Discriminating in its representation of Charles
A. Carver, or any other employee, because of his
lack,of membership in Respondent Union.
c. In any like or related manner, restraining or
coercing employees in the exercise of Section 7
rights guaranteed by the National Labor Relations
Act, as amended.,
2. Take the following affirmative action which
we find necessary to effectuate the policies of the
Act:
a. Proceed promptly to arbitration over the
propriety of the discharge of Charles A. Carver on
or about July 28, 1966, from his employment by
Port Drum Company.
b. Post at its offices, meeting halls, and bulletin
boards copies of the attached notice marked "Ap-
pendix." Copies of said notice, on forms provided
by the Regional Director for Region 23, after being
duly signed by the Union's authorized representa-
tive, shall be posted by it immediately upon receipt
thereof,,and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to members are customarily
posted. Reasonable steps shall be taken-by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
c. Mail signed copies of the notice to the Re-
gional Director for Region 23, for posting by Port
Drum Company, said Employer being willing, at all
locations where notices to ' its employees are
customarily posted.
d. Respondent Union shall notify the Regional
Director for Regional Director 23, in writing,
within' 10 days from the date of this Decision and
Order, -what steps have been taken- to comply
herewith.
Jurisdiction is hereby retained for the purposes
indicated in that portion of our Decision and Order
herein entitled "The Remedy."
Insofar as it alleges unfair labor practices on the
part of Respondent Port Drum Company, the con-
solidated complaint is hereby dismissed.
557
APPENDIX
NOTICE TO ALL MEMBERS OF OIL, CHEMICAL &
ATOMIC WORKERS INTERNATIONAL UNION,
AFL-CIO, LOCAL No. 4-23, INCLUDING ALL
MEMBERS OF PORT DRUM COMPANY GROUP
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT fail or refuse to proceed to, ar-
bitration over the propriety of the discharge of
Charles A. Carver on or about July 28, 1966,
from his employment with Port Drum Com-
pany-
WE WILL NOT discriminate in our representa-
tion of Charles A. Carver, or any other em-
ployee, because of his lack of membership in
this Union.
WE WILL NOT in any like or related manner
restrain or coerce any employee in the exercise
of Section 7 rights guaranteed him by the Na-
tional Labor Relations Act, as amended.
WE WILL proceed promptly to arbitration
over the propriety of the discharge of Charles
A. Carver from the employment with Port
Drum Company on July 28, 1966.
All employees in any bargaining unit represented
by this Union are by law entitled, to and will receive
from this Union nondiscriminatory representation,
in the processing of their grievances and otherwise
without regard to whether or not they are members
of this Union.
OIL, CHEMICAL & ATOMIC
WORKERS INTERNATIONAL
UNION, AFL-CIO,
LOCAL No. 4-23
(Labor Organization)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced , or covered by any other material.
If employees have any question concerning this
notice or, compliance with its provisions , they -may
communicate directly with the Board's Regional
Office, 6617. Federal Office Building, 515 Rusk
Avenue, Houston , Texas 77042, Telephone
228-0611.
i
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
I. PRELIMINARY STATEMENT
STANLEY N. OHLBAUM, Trial Examiner: This con-
solidated case' was heard before me in Port Arthur,
Texas, on February 7-8, 1967, with all parties par-
ticipating throughout; the Charging Party, Charles
A. Carver, in person; and Respondents Port Drum
Company ("Employer") and Union through their
respective counsel, who also, as well as General
Counsel, subsequently submitted briefs and
proposed findings and conclusions, which, together
with the evidence, have been carefully considered.
II. ISSUES
The case involves alleged violations by Employer
and Union of the National Labor Relations Act, as
amended, 29 U.S.C. Sec. 151 et seq. ("Act"). The
specific issues tendered by the pleadings are: (1; as
to Respondent Employer) That, in violation of Sec-
tion 8(a)(1) of the Act, Respondent Employer has
failed and refused "to adjust [i.e., process a
grievance] and/or arbitrate" the discharge of its
employee Charles A. Carver (Charging Party
herein), under a subsisting collective agreement
with Respondent Union; (2; as to. Respondent
Union) That, in violation of Section 8(b)(1)(A)
and 8(b)(2) of the Act, Respondent Union has
failed and refused under its subsisting collective
agreement with Respondent Employer to arbitrate
Respondent Employer's discharge of Carver,
because of Carver's nonmembership in Respondent
Union or because of "arbitrary, irrelevant or invidi-
ous considerations." It is neither alleged nor con-
tended that Respondent Employer's discharge of
Carver was for any reason unlawful under the Act.
Upon the entire record' and my observation of
the witnesses; I make the following:
FINDINGS AND CONCLUSIONS
III. JURISDICTION
At all material times Respondent Employer has
been and is a Texas corporation with principal of-
fice and place of business in Port Arthur, Texas,
' Original charge filed in each case September 2, 1966; amended charge
in case 23-CA-2493 filed October 11, 1966; consolidated complaint with
order consolidating cases issued November 2, 1966 by Board's Regional
Director for Region 23 Unless otherwise specified, all dates are 1966
Y Transcript hereby ordered corrected in respect to obvious and typo-
graphical errors set forth in attached "Appendix B " [Omitted from publi-
cation ]
3 Based largely upon essentially uncontroverted and credited testimony
of General Counsel witness Carver
' It was explained at the hearing that this numerical designation arises
from a numbering system in which the "4" signifies the parent union dis-
trict number and the "23" identifies the local union. In turn, the member-
ship of Local 4-23 is said to encompass six separate semiautonomous
"Groups," each located in a different plant in the Port Arthur, Texas,
where it is engaged in the business of buying,
selling, reconditioning,, and converting steel drums.
During the 12-month representative period im-
mediately preceding issuance of the consolidated
complaint, in the course and conduct of its said
business, Respondent Employer reconditioned,
converted, sold, and shipped products valued -in ex-
cess of $50,000 from its said, facilities - in Port
Arthur, Texas, `to places outside of Texas, directly
in interstate commerce, and also received there in
Texas directly in interstate commerce from' places
outside of Texas goods valued in excess of $50,000.
I find that at all material times Respondent Em-
ployer has been and is an employer engaged in in-
terstate commerce within the meaning of Section
2(2), (6), and (7) of the.Act.
I find that at all material times Respondent Union
has been and is a labor organization within the
meaning of Section 2(5) of the Act.
I find that assertion of jurisdiction herein is
proper.
IV. ALLEGED UNFAIR LABOR PRACTICES
A. Background'
The Charging Party, Charles A. Carver, worked
steadily for Respondent Employer as a laborer
since 1950, over 16 years. In 1952 he joined the
Port Drum Group of Respondent Union. Until
1963, the membership of Respondent Local 4-234
was exclusively white, whereas that of former Local
4-2545 was exclusively colored; and. until 1963,
both Locals represented the employee "Group" at
Respondent Employer's ' facility: During his union
membership in Local 4-254, commencing-in 1952,
Carver served, on and-off, for about 9 years, as-pre-
sident of Local 4-254,,as welas for-about 6 years
as chairman of its workmen's committee (i..e., com-
mittee for grievances, negotiations, etc.), both elec-
tive offices. Around 1963, Locals 4-23 (white) and
4-254 (colored) were merged. At that time each
Local had its own separate strike fund. According
to undisputed testimony of Carver, while the
merger was being effectuated, Local 4-23 (white)
was permitted in effect to declare a "dividend" and
distribute. its strike funds among its members,
whereas the, strike funds of Local 4-254 (colored)
area Each such, "Group" has its own chairman, who apparently becomes
such (as well as a member of Local 4-23 "Executive Board") automati-
cally, under the Local's constitution and bylaws (art. III ; secs I and 6),
by virtue of his election as a vice president of Local 4-23 (one vice presi-
dent being elected for each plant group) It is not clear whether election of
the vice president -of each group is limited to the membership of that
particular group or whether it, is by the membership-at-large of Local
4-23 Local 4-23 constitution and bylaws (art V1, sec 2) expressly
provides that each group shall elect its own Workmen's Committee. The
constitution and bylaws of Respondent Local 4-23 indicates that as of
February 1962 Local 4-23 encompassed 14 separategroups, including the
Port Drum Company Group
' Local 4-254 is said to have encompassed five or six separate plant
groups including Respondent Employer's plant
PORT DRUM COMPANY
were kept intact and transferred to the merged lo-
cal, which was known as Local 4-23 (white and
colored). Because of Carver's dissatisfaction over
this situation, in October 1963 he withdrew from
and has since remained out of the merged (i.e.,
present) Union, Respondent herein.
B. Carver's Discharge6
On July 28, 1966, Carver was discharged from
his 16-year employment, following an incident
which had occurred on the previous day involving
an error or errors in his paycheck.
On July 27, when he received his paycheck at the
office window, Carver called attention to the fact
that it was incorrect in amount. He-was referred by
payclerk Yvonne Boudreaux to Office Manager
William F. Storms. In the office Storms, conceding
Carver's check was 50 cents short, offered to make
up the difference to Carver in his next paycheck or
to give him an extra check for 50 cents. Pointing
out an additional error or imprecision in his name
as typed on the check which he feared, upon the
basis of similar past experiences, would make it
troublesome for him to cash it, Carver asked
Storms to draw a new check for the correct amount
with his name properly spelled. Storms refused 7
while concededly inviting Carver to kiss a certain
portion of his anatomy. While the anatomical part
referred to by Storms is not in dispute, the word
used by Storms to designate it is in dispute. Ap-
parently Storms' invitation provoked Carver to
tender a counterinvitation to Storms to further the
matter out-of-doors. After more nonviolent discus-
sion outside, Storms and Carver returned to the of-
fice.' At or around noon of the following day, after
having worked all morning as usual, Carver was
summarily discharged for "creating an unwarranted
disturbance in the offices" of his employer on the
previous day. At the same time Carver was
presented with a document for his signature pur-
porting to relinquish "all , . , seniority rights" and,
upon receipt of moneys accumulated to his credit,
to release his "interest or participation" in his ac-
crued "pension", ("Profit Sharing Plan") rights aris-
ing out of his 16 years of employment.
There is' here no contention that Carver's
discharge was, unlawful under the Act.
R Based upon a composite of testimony of General Counsel witness
Carver and Respondent Union's witnesses Storms, Boudreaux , and Antil-
ley, to the extent credited
' At the hearing , Storms indicated issuance of a new check in the correct
amount would have , required undue bookkeeping repair
' Testimony by Storms indicates that later in the afternoon , in traffic on a
highway outside of the plant , Carver, from his automobile , hurled a chal-
lenge at Storms in his automobile to fight it out, which Storms declined or
ignored Carver's denial of this alleged episode is supported to a degree by
testimony not only of Vinson Millender, but of Mrs Carver-highly im-
pressive witnesses- tending to establish that Carver was with Mrs Carver
elsewhere at the time It is to be noted that Respondent Employer's dismis-
sal notification to Carver makes no mention of this alleged incident (which
is now said to have loomed so large in his discharge and in Respondent
Union 's action to be described ), stating merely that Carver 's discharge was
for "creating an unwarranted disturbance m the offices " of the Company
After carefully weighing the conflicting evidence, including the testimony
559
C. Carver's Attempts to Redress His Discharge
Aggrieved at what he considered to be his
precipitate and, unjustified discharge under these
circumstances after 16 years of uninterrupted and
satisfactory employment, Carver immediately
sought relief from "Jake" Antilley, his white suc-
cessor as Chairman of the Port Drum Group Work-
men's Committee of Respondent-Union.9 Accord-
ing to testimony of Carver, which I credit, when he
told Antilley of his discharge and requested that the
Workmen's Committee (headed by Antilley)
process a grievance to arbitration thereon, Antilley,
who had witnessed at least part of the previous
day's incident in the office, referred Carver to Job
Steward Albert Lott. Carver did -this, resulting in
Job Steward Lott's filing a written grievance com-
plaint with Carver's immediate supervisor on or
about August 2 "in protest of" Carver's discharge.
Lott informed Carver that Plant Superintendent
Jones in effect told him that since he could add
nothing to the discharge letter (quoted above)
which had been given to Carver, Lott "would have
to go and talk to the big people up in the front of-
fice because they were the ones that discharged
[Carver]." Carver asked Lott to pass this informa-
tion on to Workmen's Committee Chairman Antil-
ley, since it was Antilley who had instructed Carver
he would have to "go through the job steward
[Lott] first." However, since Carver heard nothing
from Antilley, on August 8 he (Carver) approached
Port Drum Group Chairman Leroy Thomas- and
told him what had happened, and asked him if his
discharge was "going to be arbitrated by the Union,
if he could call a group meeting and find out."
Thomas indicated a special, meeting of the member-
ship of the Port Drum Group would be called.
Further according to testimony of Carver which I
credit:
He [Port Drum Group Chairman Leroy
Thomas] also said that Jake Antilley, which is
the chairman of the Workmen Committee,
after finding out that he was going to call a
special group meeting, told him, he said, "I am
surprised at you, Leroy, to try to go call a spe-
cial group meeting to arbitrate a case for a per-
son who do not belong, who does not belong to
the Union." And Leroy told him that he's not
of Carver , Storms, Millender , and Mrs Carver , and the posthearing af-
fidavit of Alvin Arnold ( hereby incorporated into the record as Respon-
dent Union 's Exh 3A, covering letter of February 13, 1967, to Trial Ex-
aminer from counsel for Respondent Union , added as Respondent Union's
Exh 3B ) and a stipulation of the parties pertaining thereto ( hearing trans-
cript , pp 305-307 ), and appraising and comparing testimonial demeanor,
upon the record as a whole I am unpersuaded that this alleged episode as
described by Storms occurred and I credit Carver 's denial that it occurred
' Antilley testified that he has served as chairman of the Port Drum
Group Workmen's Committee "almost continuously " for 19 years. From
this it would seem that while Carver was Chairman of the Local 4-254
(colored ) Workmen's Committee at Port Drum, Antilley was Chairman of
the Local 4-23 (white ) Workmen 's Committee there, until those two Lo-
cals merged into Local 4-23 in 1963, under circumstances described
above, at which time Antilley became Chairman of the new Local 4-23
(white and colored) Port Drum Group Workmen's Committee
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only doing that, he would take money out of
his pocket, out of his pocket, his, Leroy's
pocket, to help arbitrate the case.
Since Leroy Thomas was not called to testify nor
his failure to do -so in any way explained, the
foregoing statement credibly ascribed to him by
Carver stands unchallenged by Thomas; although,
to be sure, Antilley, whose testimonial demeanor I
observed closely and whom I do not credit-in this
regard, denied saying it to Thomas. -
At the union hall just prior to the Port Drum
Group membership meeting called by Port Drum
Group ' Chairman Leroy Thomas . for August 9,
Carver met with Thomas and International Union
Representative Harry Burk, so that-according to
what Thomas told
-story.
Carver-Burk could "hear [Car-
ver's] side-of-the " Vinson Millender, Carver's
step-father-in-law and likewise employed for many
years at Port Drum Company, was also there. Stat-
ing he had "already heard the Company's side of
the story," Burk asked Carver to give his side,
which he did. Burk then stated,10 "Carver, I had
heard some bad things about you," but did not-
'ex-plain other than that he [Burk] asked Carver
whether he had said that "if the group go on 'strike
that I '[Carver] -would cross their picket line."
When Carver denied saying this, Burk:
asked me why did'I [Carver] leave the Union. I
told him [Burk] what, the statement I have
made in connection with the merger '[of Locals
4-254 and 4-23]. He then said that was water
under the bridge. He also stated that he has
some reservations to'arbitrate a case for a per-
son whoFdoesn't belong to the union. He also
said that' if I was in the Union that he could
have done more for me, he would feel proper
in arbitrating the case for me. I then mentioned
to him that if it was a matter of the funds in-
volved- that -I was willing for the Union to ar-
bitrate-the case and I would be willing to pay
the expense, and if there wouldn't be anybody
to be selected as an arbitrator for me that I
would be willing to get an attorney to arbitrate
the case for me. Mr. Burk in reply said, "No,"
'he -said, "we are not going to have that." He
says; "If your case is being arbitrated it is going
to be -arbitrated by myself or someone selected
from the Union,"" and that the Union would
Credited testimony of Carver, disputed in part by Burk, and totally un-
denied by Thomas, who without explanation was not called to testify Upon
the record as a whole, including testimonial demeanor comparisons, I
credit Carver's account of this meeting in preference to'that of Burk
" General Counsel rebuttal witness Vmson'Millender testified that when
Carver offered to defraythe expense of the arbitration since he then had "a
little money in the bank ," International Union Representative Burk said,
"No, no , I don't want no part of that I will arbitrate your case, or' either I
will have somebody in the Union to do it I don't want no outsider come
in " Burk's testimony is consistent with Carver's position that Burk did not
tell, indicate , or encourage him to attempt to arbitrate his own case, in-
deed, Burk conceded that he at no time advised Carver that he could
proceed to arbitration himself and name an arbitrator.
12 Burk explained that in making this statement to Carver he was refer-
ring both to the membership at large as well as to members of the Work-
pay the expense. I told him :it was in agreement
with me. I only _ brought that up because I
didn't want him to feel that,I was anti-union or
trying to use the Union.
Denying that he ever indicated reservations to
Carver about arbitrating a case for a nonmember of
the Union, International Union Representative
Burk conceded that "there had been some,talk of
his [i.e., Carver's] nonmembership"' and that:
I [Burk] did say to Mr. Carver, I 'said, "Now,
the fact that you do not'belong to the Union is
causing certain emotions to run rather high in
this group. There will probably be some, that
will be strongly in favor of your case; and there
will probably be some that are prejudiced
against your case by -the fact that you do -not
belong to the Union .... 1112
Burk nevertheless, according to his testimony, reas-
sured Carver that if his case had "-merit," the Union
would "carry it all the way through" and that "if
the case had enough merit to go to arbitration and
was appealed to arbitration, that I [Burk] would be
the one to probably represent him at the arbitration
hearing.
Carver's credited testimony further establishes
that Burk also told Carver on this occasion that
whether or not Carver's case would -be-arbitrated
was "up to the group, if the group decided. The
group had the final say" and that "if the group
voted that the case be arbitrated that the Union was
obligated to arbitrate the case." Burk further in-
dicated that no group meeting was necessary that
night-(August 9)'since no response'tb the grievance
had' been received from the Employer. Burk addi-
tionally stated that "there would be ,another meet-
ing called as soon as they-hear from the-Company,
and the group would-'have the 'final say as to
whether the case would . be arbitrated or not.
Nevertheless, a group meeting was held that night
(August 9), which Carver was told 'h6 could,, not-at-
tend because he was "not a member of the''Union."
Carver learned from, Vinson Millender (his step-
father-in-law, a union member), who was present at
this Group meeting 'on August 9, that: -
Jake [Antilley] got `up in the meeting and
stated that he couldn't -see why_ the group
wanted to have a meeting and vote to arbitrate
my case because I [Carver,] was not a,member
men's Committee On cross-examination , Burk expatiated on the foregoing
somewhat
Whenever you have, Mr. Trial Examiner, a union and the union is built
on the principle that one for all and all for one, and you have any type
of organization built on this principle, andyou have people who do not
join in for this purpose, there is always the possibility that there could
be some prejudice or resentment 'agamst a person of this type, re-
gardless of whether it was a union or protective association , or what-
ever the case may be'. . I would have to be truthful, Mr Trial Ex-
aminer, and say that I- would much prefer that any man, if a union
represents the majority of the people, that he participate in that union,
but I will not and cannot truthfully say here that I was prejudiced to the
point that Mr Carver did not get a fair'shake completely in the han-
dling of this grievance
PORT DRUM COMPANY
of the Union ... and that he, Jake, had talked
to the Company prior to the meeting, telling
the Company that he did not think that the
Union was going to arbitrate the case.13
Testifying on this subject, Antilley denied that Car-
ver's nonmembership in the Union was so much as
"mentioned" at this meeting. However, General
Counsel produced as a rebuttal witness Vinson Mil-
lender, who was present at the meeting and who
testified not only that International Union
Representative Burk had stated before the meeting
that he (Burk) "would do more for a union man
than he would for an un-union man," but that An-
tilley said "all the way through" the ensuing group
meeting that night that Carver's case should not be
arbitrated because he was not a union member,
stating:
Jake Antilley said he was against it, you know,
in other words, he didn't have nothing to do
with it, period, because he was paying union
dues while Carver was riding. He [Antilley]
had three hundred and some dollars that he
was out of, he said he didn't want to make his
children hungry .... He said he didn't want to
make his children hungry for a non- union man.
He had paid three hundred and some dollars
on, you know, like paying dues; for to take up
for this amount of time.
Poorl-y impressed with Antilley's testimonial
demeanor, I am unable to credit his denial that Car-
ver's nonmembership in the Union was so much as
"mentioned" at the August 9 meeting. 14 Antilley's
testimony in this regard also appears to be at vari-
ance with that of his fellow witness, International
Union Representative Burk, who conceded that at
this 'meeting "There was discussion that was had
that dealt around the fact that he [i.e., Carver] was
not 'a member. . . . " Furthermore, I reacted ex-
tremely favorably to the testimonial demeanor of
Millender, whose simple directness made an im-
print upon me as that of a truthful person whose
testimony merits beliefs; and the same may be said
of Carver.
According to credited testimony of Carver, un-
disputed by Port Drum Group Chairman Leroy
Thomas, the latter favored arbitration of Carver's
case.
On August 16, Carver was told by Burk that in
connection with a "special group meeting" called
for that night, Burk wished to see Carver again be-
fore the meeting in order to procure a written state-
ment from him. Carver accordingly met privately
It is observed that the Company's written notification to the Union
(i e , Antilley) rejecting Carver's grievance is dated August 9.
14 While insisting Carver's nonmembership in the Union was "not even
mentioned" at the August 9 meeting, Antilley later- in response to a
question by union counsel as to whether Carver's nonmembership was
"ever" mentioned at "any" meeting-testified that "we let everybody
know that, everybody we talked to, the fact that he was not a union mem-
ber had no bearing whatsoever in regards to how far we went with his
case " In view of the record as a whole, I am unable to accept from this
witness a portrayal suggestive of such fastidious fairness.
561
with Burk at the union hall that evening, When
Carver presented to Burk a written statement which
Carver had himself prepared, Burk stated, "`There
is one thing that is not here on the statement.' And
I [Carver] asked him what it was. And he told me
that the Company accused me of threatening one
Mr. William Storms, followed him and threatening
him after I left the plant." Carver denied such an
accusation.15
A special meeting of the Port Drum Group of
Respondent Union was held on August 16, follow-
ing International Union Representative Burk's con-
ference with Carver. According to testimony of
Carver, which I credit, Port Drum Group Chairman
Leroy Thomas-who, it is reiterated, was unac-
countedly not called to testify to dispute this-who
was present at the meeting, told Carver that Work-
men's Committee Chairman Antilley said at the
meeting or to him personally that "he [Antilley]
thought that the case shouldn't be arbitrated" and
that:
Antilley made the statement that he couldn't
see why the group would want to arbitrate this
case when I was not a member of the Union
and was taking my money and saving it and his
children was at home, he had to pay about
three hundred dollars or some more since I
have been out of the Union, and his children
suffered as a result of he paying Union dues,
and I was out of the Union and wasn't paying
any, and he couldn't see why that they should
vote to arbitrate this case.
Corroborating the foregoing, General Counsel
rebuttal witness Vinson Millender-as already ob-
served, a highly credible witness-testified that
after Antilley reported to the group meeting that he
had heard from the Company that it had declined
to arbitrate Carver's case, Antilley:
said he [Antilley] couldn't see how a union
man could go along and vote for arbitration in
a case like that, he couldn't see it ... he said
he [i.e., Carver] was a non-union man, and he
couldn't see how they could do it, why they
would do it ....
According to Antilley, he and the three other
members of the Workmen's Committee had met
with International Union Representative Burk prior
to the August 16 Group meeting and decided to
"make a recommendation" to the Group, at the up-
coming meeting that Carver's case not be ar-
1" fhe substance of this accusation is described supra, fn 8, wherein, it
will be recalled, a finding has been made, upon the basis of the substantial
credible evidence adduced, that the alleged incident did not occur At the
hearing, International Union Representative Burk, who insisted he made a
"full investigation" of the matter, conceded he never questioned Storms or
Mrs Carver or any other potential witness regarding this alleged episode
which apparently loomed so large in Burk's determination not to have Car-
ver's discharge arbitrated
350-999 0 - 71 - 37
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bitrated. Antilley stated that he voted against ar-
bitrating Carver's discharge because:
I felt it was justified .... I felt it didn't have
enough merit to proceed to arbitration . . . this
was the most deplorable situation that I ever
encountered, and I am sure that if this case
would have went to arbitration' that I would
have been serving on the Arbitration Board, and
I couldn't have found a justifiable reason to de-
fend this guy without swearing to a lie on the
witness stand because in my opinion I thought
that this was absolutely unnecessary, uncalled
for, and un -unionism for a guy to handle this
thing in the manner in which Mr. Carver han-
dled it. [Emphasis supplied.]
According to International Union Representative
Harry Burk, like Antilley tesifying as Respondent
Union's witness , he met with the Port Drum Work-
men's Committee (headed by Antilley), whose "job
is to process and handle grievances at the local
level, plant level," and when "on the first contact
that was made to me by the Chairman [Antilley]
of the Workmen's Committee regarding this case,
the point was made, or the issue was made, or it
was made mention of, that Carver did not belong to
the Union, and it was my position to the Chairman
[Antilley] of the Workmen's Committee that under
the law that we have to process anybody's com-
plaint as long as we represent a majority of the peo-
ple in that bargaining unit." Thereafter, "this com-
mittee along with myself, after investigating the
case and determining the merits of the case, made a
recommendation that it not be appealed [to arbitra-
tion]." Burk had no "vote" on the Workmen's
Committee, consisting of three union members
elected by the Port Drum Group. After Burk
testified that the "conclusion" of the Committee-
i.e., its "recommendation" to the Group against ar-
bitration-was "based on the evidence in the case
and the facts of the case ," the following colloquy
ensued:
TRIAL EXAMINER: When you say the
evidence in the case did anyone testify under
oath before you?
THE WITNESS [i.e., International Union
Representative Burk]: No.
TRIAL EXAMINER: Who did the investigating?
THE WITNESS: The Workmen's Committee
along with myself, after meeting with the Com-
pany and after myself meeting with Mr. Carver.
In grievance-type investigations, you conduct
one that is rather informal and loose. You try
to ascertain all the facts that you can assemble.
And then based on my professional judgment, if
I may refer to it as that, having quite a bit of
experience in arbitration of cases and
processing of grievances, and after looking at
all the facts that I could ascertain , it was my
opinion that this case did not have merit to go
to arbitration.
TRIAL EXAMINER : Did-you believe Carver's
story?
THE WITNESS : I would say that after talking
to Mr . Carver I did not, believe his story
completely , after the full investigation. I be-
lieved some aspects of it, but I didn 't, after
making a full investigation with the Company,
and Mr . Carver 's original statement and story
to me was so contradicted in some parts with
the Company 's position that I had reason to
doubt Mr . Carver 's story . [ Emphasis supplied.]
Notwithstanding the foregoing testimony and his
"doubt" of Carver's story, Burk conceded that in
his "full investigation " of the matter in accordance
with his "professional judgment" based on his al-
leged, undescribed extensive experience in such
matters , he did not even speak to Office Manager
Storms or office girl Boudreaux about the incident in
question . Pressed on cross -examination by counsel
for General Counsel to particularize the "con-
tradictions" which he allegedly ascertained in Car-
ver's story and which prompted him (Burk) to
recommend against arbitrating Carver 's discharge,
Burk replied that "The contradiction occurred in
that Mr . Carver made no mention of the fact, no
reference to the fact of having had any discussion
or encounter of any type with the office manager
[Storms] after leaving ' the plant ^ premises on the
day of the incident . 1116 However , as to this alleged
episode-which , it will be recalled , Carver denied
ever occurred and it has here been found upon the
substantial credible evidence did not occur-Burk
again conceded that "I [Burk] have never talked to
the office manager [Storms ] about this."17 (Empha-
sis supplied .) According to Burk , however,
although Carver denied the incident altogether, and
Burk never spoke to Storms , the only other alleged
participant therein , Burk nevertheless " know that it
had happened by virtue of the fact that the , Chair-
man [Antilley ] of the Workmen 's Committee re-
ported to me that it had happened," conceding also
that Antilley had not been there . Burk explained
this feat of prestidigitation by him as "part of the
imposition of my judgment on this, on the merits of
this case ," acknowledging that it was a "material
criterion " in his judgment against arbitrating Car-
ver's precipitate discharge after 16 years of satisfac-
tory steady employment.
Expatiating somewhat further on his methods and
techniques for determining the credibility of ag-
grieved employees requiring assistance from the
Union in the- vindication of their job rights, and his
related trial strategies , Burk explained that it is only
sometimes that an "employee [is ] given an oppor-
" As to this, see fn 8, supra
" Nor, as established by uncontradicted credited testimony of General
Counsel rebuttal witness, Mrs Carver, did Burk (or anybody else other
than counsel for General Counsel) speak to Mrs Carver, who had
knowledge bearing on Carver's whereabouts at the time of the alleged after
worktime incident involving Carver
PORT DRUM COMPANY 563
tunity to testify or to give his side of the story," de-
pending in part on
the decision ... of the union representative
[i.e., Burk] of whether a person will crumble
under the pressure, so to speak, when he is put
under the interrogation of the bosses .... if
you have a discharge case .:.. and you had a
guy that was extremely nervous and you
thought by bringing him in for interrogation
with the Company possibly before you got to
arbitration'he would incriminate himself more
than the Company has already alleged that he
has done, that it might be well to hold him
until you get to the arbitration procedure
rather than taking him in in that interrogation
process with the Company.
Burk added that in Carver's case
there was a, I would say, preponderance of
evidence here against Carver's credibility on
the way that he conducted -himself in the of-
fice, and this was witnessed by the chairman
[Antilley] of the Workmen's Committee ....
Notwithstanding Port Drum Workmen's Commit-
tee Chairman Antilley's quoted statements to the
Group-and his recommendations that Carver's case
not be carried to arbitration, it is conceded that the
membership of the Port Drum Group voted 28-6
that Carver's case be taken to arbitration. The day
after this meeting (i.e., August 17), Burk informed
Carver that "the Committee and I tried to have the
case not arbitrated. 'We recommended the case be
not arbitrated. But, the group voted that the case be
arbitrated." Burk further informed Carver that "the
Executive' Board would meet August 22, and that
they would have to decide on releasing of the
funds."18 Subsequent to the meeting of Respondent
Union's Executive Board, Carver was informally
told on the telephone by Port Drum Group Chair-
man Leroy Thomas that the Executive Board had
overruled the membership of the Group and had
"voted non-concurrence with the group's decision
of the 16th" of August to carry Carver's discharge
to arbitration, and that therefore his case would not
be arbitrated. When Carver asked Thomas the
reason or basis for this action overruling the mem-
bership, Thomas declined to answer.19 At no, time
has Carver received, nor is it claimed that he was
given, any written notification of or pertaining to
the action of the Executive Board in overruling the
group membership.
At no time since his discharge did Carver
receive any kind of notice that there would be
a meeting or any opportunity to express [Car-
ver's] point of view or testify, or anything like
that ... before a group, giving [Carver's] side
of the story.
On August 23, the day after he learned of the Ex-
ecutive Board's action overruling the Port Drum
Group membership with regard to taking his case to
arbitration, Carver dispatched' a letter to Respon-
dent Employer notifying it of his "intention to ar-
bitrate the discharge action of the company" and
returning the form (dated July 28) which the Com-
pany had given him for signature at the time of his
discharge withdrawing his "pension" (i.e., "profit
sharing") funds "which I have sign under protest."
It is conceded that Respondent Employer received
these documents on or about August 24. Although
Carver never received a written response from
Respondent Employer, on September 1 he received
a telephone call from its Office Manager Storms ad-
vising him that "my [i.e., Carver's] profit-sharing
money was in the office, the check was in the of-
fice, and that I should come and get it." Carver
1X Carver (who, it will be recalled, was the leader of the former Port
Drum colored Local 4-254 for many years before his resignation at the
time of its merger with or subsumption into Respondent Local 4-23 under
circumstances described above) testified that in his long union experience,
a group vote authorizing arbitration of the grievance of a group member
had always been regarded as final and not subject to overruling by the
Local Executive Board or Committee- It is observed that the only person
on the Local Executive Board possessing a degree of direct familiarity with
Carver's case was Leroy Thomas International Union Representative Burk
as a member of the International Union staff was not a member of Respon-
dent Union Local's Executive Board Burk testified on cross-examination
that the "Groups govern their own affairs and their own business. to the
degree that they do not have to appropriate money from the Local's treasu-
ry to conduct their business Whenever they have to, or need funds, to ap-
propriate funds, to conduct their business it must then go through the
procedure of approval of the Executive Board and the general member-
ship," stating that "the constitution would probably show it." To be sure,
the union consititution (art. IV, sec 3) restricts the incurring of financial
obligations on behalf of the Local Union (i.e., Local Union 4-23) itself
"without authority from the by-laws or from the Union " However, this
provision is not inconsistent with the practice credibly established by the
testimony of Carver, who-unlike Burk, only in this area for a year, accord-
ing to his own testimony-through long years of actual on4he-scene ex-
perience in the administration of union affairs is in a position to know, and
whose testimony in this regard was undisputed by Burk Furthermore, there
was no showing or contention that resort to funds of the Local, as distin-
guished from funds of the Group itself, was necessary to defray the cost of
arbitrating Carver's discharge grievance. Nor was it established that ar-
bitration of Carver's discharge could not have gone forward without the
necessity of expenditure of funds by any element of the Union , for exam-
ple, in farina paupers or through counsel or arbitrators serving without pay
(as it is well known they sometimes do, when circumstances justify) It will
further be recalled in this connection that Carver explicitly offered, at the
time he was financially able to do so , to defray the cost of arbitration in
order to eliminate this as a possible stumbling block ; but that his offer was
rebuffed or declined
11 According to testimony of Antilley, he (Antilley ) informed the Execu-
tive Board at its meeting that the Workmen 's Committee had recom-
mended against arbitration "due to the merits in the case" as described to
the Executive Board by Antilley, who told them "what happened" since he
had been present " in the office on the evening of this when this thing hap-
pened . . I [Antilley] told the Executive Board what happened And the
Executive Board made up their decision , made their decision, and they
voted not to concur with the group 's recommendation ." International
Union Representative Burk testified that he was not present personally dur-
ing the Executive Board meeting and was "not sure" whether Antilley was;
that he (Burk ) "didn't have any personal consultations with board mem-
bers or the board per se over my evaluation ." Recording Secretary Harold
A Uzee of Respondent Local , testifying as Respondent Union's witness,
stated that he was at the Executive Board meeting on August 22 when Port
Drum Workmen 's Committee Chairman Antilley , appeared and discussed
the Carver case and his (Antilley's) disagreement with the Port Drum
Group 's membership vote to carry that case to arbitration, and that based
upon Antilley's statements he voted to override the decision of the mem-
bership of the Port Drum Group that Carver 's discharge be arbitrated
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereupon called Respondent Employer's office,
receiving and receipting for his accumulated "pen-
sion funds"" on September 1. At no time has
Respondent Employer otherwise in any way re-
sponded or reacted to Carver's indication that he
desired to arbitrate his discharge; nor has Carver
carried the matter further, other than on September
2 to file the charges, here for decision, against the
Union and Employer.
D. Discussion and Resolution
1. Respondent Union's position and contentions
As is evident from the foregoing recital, in es-
sence this case involves an employer's precipitate
discharge of a satisfactory employee of 16 years'
standing, for reasons which, while not violative of
the National Labor Relations Act, are nevertheless
otherwise subject not alone to factual dispute, but,
perhaps more importantly, grave doubt as to
whether they would warrant the extreme penalty of
discharge of so senior an employee, at any rate in
the eyes of the informal arbitration forum to which
the Employer had elected under its subsisting col-
lective agreement, applicable to the employee, to
subject itself on matters of this nature.21 Carver was
a satisfactory employee22 in Respondent Employer's
service for 16 years and had accumulated substan-
tial pension and other economically valuable rights.
There is credible evidence that apparently far more
serious incidents involving other employees-in-
cluding actual violence (with even stabbing)-than
the mere exchange of words between Storms and
Carver arising out of Storms' conceded errors and
resulting in Carver's discharge, had not eventuated
in any such penalty. It is at least reasonably argu-
able that under the circumstances detailed, even as-
suming arguendo the version of the July 27 office
incident as supplied by Storms to be fully accu-
rate, the penalty of precipitate absolute discharge
of a satisfactory employee of 16 years' standing was
unduly drastic; and that an impartial arbitration
would so decide and require reinstatement (includ-
ing backpay and related restitution) with a lesser or
no penalty-notwithstanding International Union
Representative Burk's alleged "professional
judgment" to the contrary following his described
"full investigation." Upon careful evaluation of the
entire record, I find it highly probable that an im-
partial arbitration would so decide; and, further,
that since it cannot be held on the facts here ad-
duced that arbitration of Carver's discharge was
without reasonable prospect of success, the Union's
refusal to take Carver's case to arbitration was im-
provident, unreasonable, unjustified, improper, and
not in good faith. The Union urges, however, that it
should not be "second guessed" by the Trial Ex-
aminer or Board, nor presumably by any court, as
to whether it acted properly in declining to carry
Carver's case to arbitration. This is the kind of ar-
gument that has only superficial appeal. It is clear
that within a viable system of law in society, a party
cannot be allowed to be the ultimate judge of its
own good faith nor of the propriety and legality of
its own actions. If a party cannot insulate itself from
responsibility for its actions by relying on legal ad-
vice of its counsel with which a court disagrees,23 it
would not seem that the party itself should be in a
safer position when it exercises its own unaided
poor judgment in predicting the outcome of a legal
proceeding involving fairly arguable meritorious is-
sues. I accordingly reject the Union's contention
that the bona fides and propriety of its actions in
refusing to carry Carvers discharge to arbitration
are not open to consideration. 24
Reaching, then, as I do, the issue of Respondent
Union's good faith and motives in refusing to carry
Carver's case to arbitration, and the propriety of
that action under the Act, at the outset it is essen-
tial to resolve, to the extent not already done,
testimonial conflicts involving alleged expressions
and actions of Port Drum Workmen's Committee
Chairman Antilley and International Union
Representative Burk bearing upon their and
Respondent Union's true reason for declining to
take the necessary steps to have Carver's discharge
arbitrated. The circumstances of the withdrawal of
Carver, himself formerly for many years a union
leader, from Respondent Union at the time of his
10 These amounted to $1072.79 covering his 16 years of continuous em-
ployment with Respondent Employer, to "the end of the last fiscal year "
Carver's testimony establishes that following his discharge he had to use
this money to support his wife and nine children and to pay bills Carver's
application for unemployment insurance was disallowed by the Texas Em-
ployment Commission
21 The subsisting collective agreement provides (art X11, seq 3)
If a discharged or suspended employee is, pursuant to a decision
reached under the grievance and arbitration provisions of this Agree-
ment, found to have been unjustly discharged or suspended , it shall be
within the authority of the Board of Arbitration to reinstate such em-
ployee to his former job and/or make him whole for all time lost, less
any amounts earned on other Jobs during the time off
22 From the hearing transcript, testimony of Respondent Employer's Of-
fice Manager Storms
TRIAL EXAMINER Prior to this episode of July 27 which resulted in
Carver's discharge, had you ever had any arguments or cross words or
difficulties with Carver)
THE WITNESS [Storms] Never
21 Cf International Union of Electrical, Radio and Machine Workers,
Local 613 v NLRB , 328 F 2d 723, 727 (C A 3), N L R B v Clearfield
Cheese Co, Inc, 322 F 2d 89, 93 (C A 3), Taylor Forge & Pipe Works v
N L R B , 234 F 2d 227, 231 (C A 7), cert denied 352 U S 942, Old King
Cole, Inc v NLRB , 260 F 2d 530, 532 (C A 6), N L R B v Industrial
Cotton Mills, 208 F 2d 87, 91 (C A 4), cert denied 347 U S 935
24 N L R B v Miranda Fuel Co, Inc, 326 F 2d 172 (C A 2), and Ford
Motor Co v Huffman, 345 U S 330, cited by Respondent Union, are inap-
posite in this connection In Miranda , unlike here , the Union's action was
taken in honest belief on its part In Huffman, the Supreme Court expressly
conditioned the "wide range of reasonableness " allowable to unions in the
fulfillment of their representative functions to actions taken by the Union
in "complete good faith and honesty of purpose " 345 U S at 338 Neither
was present here
PORT DRUM COMPANY 565
former Group's recent merger with or subsumption
into Antilley's present Group, have been detailed.
Ensuing events were spawned in this matrix. When
Carver withdrew from. membership in this Union,
he did not relinquish his right to representation by
the Union, which, as statutory exclusive bargaining
representative of all unit employees, nonunion as
well as union, was charged by the Act with the duty
to fully, fairly, and impartially represent all unit em-
ployees without distinction based upon union mem-
bership or nonmembership L5 Fulfillment of such du-
ties is perhaps never easy when the party charged
with such a trust finds himself inevitably drawn in
opposing directions, even though he is confident that
he is able to emplace and maintain himself upon a
perch of judgmental eminence from which, while
himself interested, he nevertheless can be impervious
to the crosswinds of conflicting calls. In such situa-
tions, the ethical and legal requirements are those of
uberrima fides - the "most perfect good faith." The
Union can hardly be considered to have satisfied
such requirements here. To begin with, in a cocoon
of hostility by Antilley toward Carver, Antilley con-
tinued openly to campaign at union meetings that
union members should, because of Carver's non-
membership in the Union,26 reject Carver's request
for arbitration of his discharge-clearly unlawful
action under the Act;''' and, notwithstanding the
action of the membership in resoundingly rejecting
his recommendation and instead voting to carry Car-
ver's case to arbitration. Antilley nevertheless per-
sisted in his viewpoint and brought about what is in-
dicated may have been unparalleled action by
Respondent Union's Executive Board overruling
this group membership, thereby thwarting the will
of Antilley's own group membership and stymieing
Carver's normal access to arbitration of his
discharge grievance. Furthermore, International
Union Representative Burk, who I am convinced
entertained sentiments similar to those of Antilley
hostile to Carver's desire for arbitration only by
reason of Carver's nonmembership in the -Union,
failed properly to investigate or attempt to ascer-
tain the facts reasonably necessary for informed fair
judgment as to whether Carver's case could
reasonably be expected to succeed in arbitration,
but nevertheless proceeded to take action, in
derogation of Carver's rights,- to preclude such ar-
bitration.
I find that Respondent Union through the
described actions and omissions of its agents, Antil-
ley and Burk, ratified and approved by Respondent
Union's officials, failed and refused to carry Car-
ver's prima facie meritorious discharge grievance
forward to arbitration as required; and, that such ac-
tions and omissions were not in good faith,2S but
because of Carver's nonmembership in -the Union,
and were and are in violation of Section
8(b)(1)(A) and 8(b)(2) of the Act.21
It remains, so far asthe Union is concerned, to
consider its contention that it would not be averse
to Carver's personally proceeding to arbitration on
his own behalf at his own expense, which it con-
cedes he had and has the right to do. The short an-
swers to this are that International Union Represen=
tative Burk in effect indicated - the contrary to
Carver, as shown above; 30 and that the Act 31
obligates the Union to do so on Carver's behalf not-
withstanding his nonmembership in the Union, and
that Carver is not obligated to attempt to conduct a
personal arbitration on his own behalf at his own
expense, without the .benefit of the same financial,
legal and other support that the Union would pro-
vide for its members and which the Act contem-
plates and requires.32 It seems clear that nondis-
criminatory administration of an exclusive bargain-
ing representative's statutory and contractual
responsibilities is not fulfilled by requiring a bar-
gaining unit employee to resort to self-help at his
own expense to enforce his right to his job under a
collective agreement-perhaps at -a time when he
needs the Union most.3
"The Act, Sec. 8(b)(1)(A) and 8(b)(2), Vaca v Sipes, 386 U.S. 171,
Humphrey v Moore, 375 U.S 335, 349-350, Ford Motor Co v. Huffman,
345 U.S 330,337-339
2' Upon the basis of the entire record, including testimonial demeanor
comparisons, I credit the testimony of General Counsel's witnesses to this
effect, in preference to the denials of Respondent Union's witnesses
27 "It is conceded in view of the Hughes Tool case 147 NLRB 1573
(1964) 56 LRAM 1289 that inaction of the Union being the duly
designated bargaining representative for an employee can constitute an un-
fair labor practice if such inaction is based on arbitrary or irrelevant
reasons " Respondent Union's posthearing brief to Trial Examiner, p 5
Respondent Union further concedes that "the Union owes Carver and
other employeesa duty to represent them fairly-"Id., p 6-
' These union actions and omissions contrast sharply with those of the
union in Vaca v Sipes, 386 U S. 171, where, as emphasized by the Court,
the union in good faith did everything in its power within reason to attempt
to vindicate the aggrieved employee's rights vis-a-vis the employer
2N A union's duty of fair representation of bargaining unit employees
(whether or not members of the union) is enforceable through unfair labor
practice proceedings before the Board. Vaca v Sipes, 386 U S 171, Local
Union No 12, United Rubber, etc. Workers, 150 NLRB 312, enfd, 368 F.2d
12 (C A 5); Miranda Fuel Co, Inc, 140 NLRB 181, enforcement denied
326 F 2d 172 (C.A 2), on grounds not herein germane (employee a union
member, alleged discrimination against him was on racial grounds, court
recognized union discrimination based upon nonmembership in union
would constitute violation of Act); Local 453, Intl. Union, United Automo-
bile, etc. Workers ( Mareniont Corp ), 149 NLRB 482, Local 1367, ILA
(Galveston Maritime Assn., Inc ), 148 NLRB 897, enfd. 368 F 2d 1010
(C A 5); Independent Metal Workers Union, Local No I and Local No 2
(Hughes Tool Company), 147 NLRB 1573.
30 The collective agreement here (art. X11I) expressly vests in the Union
the designation of arbitrator as well as control of implementing machinery
for the arbitration
"The Act, Secs. 9(a), 8(b)( I )(A ), and 8(b)(2).
32 Vaca v Sipes, supra , in. 28, cases cited supra, fn 29.
'R. W Fleming, Chancellor of the Madison campus of the University of
Wisconsin and President of, the National Academy of Arbitrators, has
pointed out in his recent study, The Labor Arbitration Process (Urbana, Ill.,
University of Illinois Press, 1966), that by 1966 the cost of the average 1-
day arbitration had reached $640 for the union alone (i.e., $200 represent-
ing one half of average arbitrator's fee of $400 per day, $125 representing
one half of cost of reporter, and $315 for average attorney's fee), exclusive
of loss of pay and time, and of disbursements such as for travel and sub-
sistence.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Respondent Employer's position and
contentions
Alleged violation of the Act by Respondent Em-
ployer is predicated by the complaint upon the
theory that it failed, under its subsisting collective
agreement with Respondent Union, "to adjust' [i.e.,
process a grievance] and/or arbitrate" Carver's
discharge. As already stated, there is no allegation
or contention that Carver's discharge was itself un-
lawful under the Act. No evidence has been ad-
duced to'establish that Respondent Employer con-
spired or knowingly participated with Respondent
Union to cause the Union to deny to Carver his
right to fair representation by the Union, including
his right to have his discharge grievance arbitrated,
because of Carver's nonmembership in the Union
or for other reasons violative of the Act.
It is clear that Respondent Employer did in fact
"process" Carver's 'discharge grievance when ten-
dered on his behalf by the Union. Respondent Em-
ployer$ was under no obligation to "adjust" that
grievance; in accordance with its legal right, it re-
jected it.
Respondent Employer has raised and litigated in
this proceeding five principal defenses and conten-
tions in justification of its failure to proceed to ar-
bitration:
(1) That Respondent Union acted lawfully and
properly in refusing to carry Carver's case to ar-
bitration. In view of the exposition and findings al-
ready made rejecting the Union's contentions in
this regard,- further discussion of this point is here
unnecessary.
(2) That Respondent Employer was not required
to arbitrate Carver's discharge in absence of a
union demand to arbitrate.
Insofar as this contention relates to the Em-
ployer's duty to arbitrate with the Union, it appears
to be sound, inasmuch as it is undisputed that the
Union has never requested the Employer to ar-
bitrate Carver's discharge grievance. There was no
affirmative requirement on the Employer to ar-
bitrate with the Union in absence of a request to do
so. It was not an unfair labor practice for the Em-
ployer to fail to do what the Act does not require it
to do.
The foregoing is not, however, the complete
answer to this contention of the Employer, since it
assumes that the Employer was also not required to
arbitrate with Carver because the Union never
requested arbitration. As has been shown, the
Union's refusal to proceed to arbitration on Car-
ver's behalf was wrongful and unlawful. Under
these circumstances, -there arose a duty-on the part
of Respondent Employer to arbitrate on Carver's
demand, under the collective , agreement, based
upon the Union's- unlawful failure to carry out its
statutory duty of fair representation by not taking
the employee's case to arbitration. It now, at
length,3 'appears that an employee has the right to
compel arbitration of a meritorious grievance af-
fecting his substantial interests, under an applicable
collective agreement, if the union in violation' of its
duty of fair representation fails or refuses to do, so.
Cf. Vaca v. Sipes, 386 U.S. 171.35-It will be recalled
that upon becoming apprised of the action of the
Local Union Executive Board refusing to carry his
case to arbitration, Carver promptly, on August 23,
wrote to Respondent' Employer placing,'it on notice
of his "intention to arbitrate the discharge action of
the company." This was a sufficient indication' by
Carver to ' the Employer (which the' evidence
establishes knew of the Union's refusal to proceed
to arbitration on Carver's behalf) ^ that -Carver
wished to arbitrate his discharge. There arose
thereupon a duty upon the part of the Employer to
arbitrate with Carver. The Employer took no action
to arbitrate, nor did it refuse to do so or'in so many
words indicate its nonrecognition of Carver's right
to do so. The Employer did not respond to Carver's
August 23 letter in any way, w other , than to call
Carver in and pay him off his "profit-sharing" or
"pension" accumulations on deposit, thereby seek-
ing to solidify its discharge action. It "neither
acknowledged Carver's letter nor did it 'designate
an arbitrator nor take any other action to ' bring
about an arbitration nor in 'any way to recognize
any right on Carver's ' part to do -so: Its ', action
thereafter in attempting to liquidate Carver's "pen-
sion" rights without in any way recognizing his right
to arbitrate his discharge grievance is, in the totality
of the record, susceptible to the interpretation of
nonconcurrence ("constructive refusal," if one
prefers that expression) on its part in Carver's ex-
pressed "intention to arbitrate." Supporting such
an interpretation is the Employer's response, when
asked at the hearing whether it was now willing to
proceed to arbitration with Carver, that it was not;
in so responding, relying in part on the Union's
failure to demand arbitration (here found to have
been unlawful) and in further part,on its own (i.e.,
S' No useful purpose would be served by rehashing the many widely
divergent judicial expressions and commentators' views-among them
Black-Clawson Co., Inc v. Machinists, 313 F.2d 179 (C.A. 2), relied upon
by Respondent Employer-antedating Vaca v. Sipes, supra. Those so
inclined will encounter them in the articles listed infra, in. 42.
ss This is not to say that every failure of a union to take an aggrieved em-
ployee's case to arbitration is actionable ; the test is one of good faith and
reasonableness on the union 's part. Cf. Vaca v. Sipes, supra, 386 U.S. 171 at
191-195; Humphrey v. Moore, 375 U.S. 335, 349-350; Ford Motor Co. v.
Huffman, 345 U.S. 330, 337-339. It is to be noted that Republic Steel Corp.
v. Maddox, 379 U.S. 650, sometimes cited as supporting the proposition
that an employee may not himself resort to action (such as compelling ar-
bitration) upon the collective agreement , merely held that an aggrieved
employee may not initially take direct action against his employer under
the collective agreement but must first "attempt use of the contract
grievance procedure ageed upon by employer and union" ( emphasis is the
Court's) and "afford the union the opportunity to act on his behalf".
(emphasis supplied), since "it cannot be said, in the normal situation, that
contract grievance procedures are inadequate to protect the interests of an
aggrieved employee until the employee has'attempted to implement the
procedures and found them so." 379 U.S. at 652-653.
PORT DRUM COMPANY
Employer's) action in liquidating Carver's accumu-
lated "profit-sharing" funds (over his protest, ex-
pressed in his August 23 letter) which in its view
canceled out Carver's August 23 request to ar-
bitrate.36
Although I reject Respondent Employer's con-
tention that it was, and is, not required to arbitrate
with Carver individually under the circumstances,
and to the contrary find and hold that it was, I
nevertheless cannot overlook the absence of
requisite evidentiary basis to support a finding that
the Employer possessed knowledge of the dis-
criminatory, unlawful basis for the Union's action
in refusing to proceed to arbitration of Carver's
grievance, or knowledge that this was the basis for
Carver's August 23 notification of intention to ar-
bitrate. Nor can'I be heedless of the fact that-even
weighing against the Employer its apparent failure
to make reasonable inquiry-it is through this
proceeding and my findings and decision here that
the basis for the Union's actions is brought home,
for the first time for aught that appears, to the Em-
ployer as stamped with illegality, thereby placing
the Employer on clear notice of the consequent
propriety of Carver's individual notice of intention
to arbitrate. Under these circumstances, faulting
Respondent Employer under the Act would appear
to be of doubtful propriety or fairness. However, in
view of Respondent Employer's outspoken continu-
ing expression of intention not to arbitrate-either
upon any demand which the Union might make, or
upon the demand which Carver has already made-
specifically so announced by Respondent Employer
toward the conclusion of the- hearing, when all
parties were invited under the Administrative
Procedure Act to adjust the proceeding, my
proposed remedial order will require Respondent
Employer as well as the Union to proceed to ar-
bitration, so as to provide a meaningful remedy,
avoid imminent danger of grave injustice through
procedural proliferation, and to effectuate the poli-
cies of the Act. This aspect is further discussed in
"The Remedy" portion hereof, infra.
(3) That prior to this proceeding, Respondent
Employer was willing to and would have arbitrated
with Carver individually had Carver himself made
proper and effective demand directly upon Respon-
's A finding to the effect that Respondent Employer ( 1) with knowledge
or notice of or ( 2) with culpable association or participation in, the Union's
unlawful refusal to proceed to arbitration of Carver 's discharge grievance,
has failed or refused to honor Carver's individual demand upon the Em-
ployer to arbitrate , would presumably support a conclusion of violation of
Section 8 ( a)(1) by the Employer, upon the theory that the Employer
would thereby have inhibited Carver's ( and other unit employees')
freedom under Section 7 to refrain from union membership , as well as in-
terfered with, restrained , and coerced Carver ( and others ) in their pro-
tected concerted enjoyment of rights and remedies under the subsisting
collective agreement.
Respondent Employer's statements at the hearing that it has no intention
of arbitrating herein could also warrant conforming the complaint to the
proof at the hearing in this regard, justifying a finding of violation of Sec-
tion 8 ( a)(1) based thereon , if essential to support inclusion of the Em-
ployer in the recommended remedial order Cf. National Licorice Co. v.
N.L.R B., 309 U S 350, 368-369.
567
dent Employer to do so. In this connection it is to
be observed that (a) I have already found that Car-
ver's August 23 letter to Respondent Employer
constituted a sufficient demand; (b) at no time dur-
ing the events described, nor prior to the hearing
herein, did Respondent Employer indicate to
Carver or otherwise that it was willing to arbitrate
with Carver personally; (c) Respondent Employer's
actions, including its requirment that under its
"release" from (over Carver's protest) Carver
withdraw all his accumulated "profit-sharing" funds
and release his "pension" rights after receiving Car-
ver's August 23 letter expressing his desire to ar-
bitrate, are difficult to reconcile with its present
professions (advanced at the hearing for the first
time) of past sub silentio willingness to arbitrate
with Carver individually; (d) Respondent Em-
ployer's contention is subject to further suspicion
because of its simultaneous insistence at the hear-
ing that-now having broken its silence about being
willing to arbitrate with Carver personally-it is
now no longer willing to arbitrate with Carver per-
sonally, nor even with the Union.37 Since it has not
been established by substantial credible evidence,
as required, that Respondent Employer was willing
to and would have arbitrated with Carver per-
sonally prior to the hearing herein, I find that
Respondent Employer was not in fact willing to do
so and at no time intended to do so.
(4) That Carver "waived," "abandoned," or is
"estopped" to assert his right to arbitation by not
having proceeded therewith in accordance with the
letter he sent to Respondent Employer on August
23, the day after Port Drum Group Chairman
Leroy Thomas informed him that the Union Execu-
tive Board had overruled the group membership
and refused to carry his discharge grievance to ar-
bitration. As to this contention, it is to be noted at
once that at no time has Respondent Employer
acquiesced in, or given any indication that it did or
intended to acquiesce in, Carver's attempted exer-
cise of that right. In the letter in question, Carver
expressed the "intention" to arbitrate and, even-
tually, to select an arbitrator. Although it would ap-
pear that under the collective agreement the Em-
ployer should-but in any event certainly may-be
the first to designate an arbitrator'38 the Employer
"I If Respondent Employer had really been willing all along, as it now in-
sists, to arbitrate with Carver, it would have been a simple matter for it to
have written or told him so in response to his August 23 letter instead of in-
sisting, in effect, that with a stroke of the pen he agree to eliminate his 16-
year pension and other employment rights. And if it really, as d currently
insists, was willing all along to arbitrate with Carver, no convincing reason
precludes it from doing so now, since Carver's acceptance of payment of
his accumulated "pension" credits following his discharge could be waived
or repaired; or, if essential, the effect (if any) thereof weighed and deter-
mined in an impartial arbitration proceeding (instead of summarily by
Respondent Employer itself) -
:11 Art XIII, second paragraph. It is further to be noted that there appears
to be no time limitation under the collective agreement for either party's
designation of arbitrator, as conceded by Respondent Employer at the
hearing (Hearing Transcript, pp 211-213)
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
never did so. Indeed, the only reaction the letter
evoked from the Employer was under its "release"
form to pay Carver off his accumulated "profit-
sharing" or "pension" moneys. Notwithstanding the
fact that on brief (p.12) Respondent Employer now
says of Carver's letter that it "is not to be accepted
or conceded by Respondent [Employer] in any
way" as a "request for arbitration," Respondent
Employer nevertheless appears to contend that
Carver's letter in some way frees it of the obligation
to arbitrate since Carver never took additional
steps (such as naming an arbitrator) to implement
his "intention." Although there is no evidence of
waiver or abandonment on Carver's part of his "in-
tention to arbitrate"-indeed, entirely the contra-
ry-it is to be observed that the collective agree-
ment contains no time limitation for the appoint-
ment of an arbitrator. Finally, it is noted that Car-
ver's explanation for his failure to proceed per-
sonally to name an arbitrator-namely, lack of
funds-is eminently credible, and in no event frees
Respondent Union of its continuing obligation to
proceed with arbitration-on Carver's behalf.39
(5) That Respondent Employer is freed from
any obligation to arbitrate Carver's discharge, on
demand of either Carver or the Union, because of
Carver's acceptance, in connection with his
discharge, of payment of the accumulated moneys
credited to his account in the Employer's "profit-
sharing" or "pension" fund. In considering this
contention, it may be observed at the outset, that at
no time has Carver conceded the propriety of his
discharge-all of his actions bespeak the contrary.
Credited evidence establishes that upon the occa-
sion of his discharge on July 28, when Carver was
presented by his Employer with a form to sign
"relinquish[ing] all his seniority rights" and
"acknowledg[ing] that he has no futher interest or
participation" in the Profit Sharing Plan upon
receipt of his accruals therein, he demurred at sig-
ning the form and did not do so; that when, on Au-
gust 23, he returned the signed form as an enclo-
sure to his letter of that date to his Employer, he
expressly did so "under protest" and with the
further explicit "notice of my intention to arbitrate
the discharge action of the company"; that his
signature on the letter of August 26 (Respondent
Employer's Exh. 2) presented to him by his Em-
ployer in its office, when he was paid off was under
similar circumstances and was in effect no more
than a receipt for those funds; and that, as the head
of a family with nine children, thrown into unem-
ployment by his Employer's precipitate discharge
without notice after 16 years of steady employ-
ment, he was in dire need of those funds to support
his family. Moreover, there is no evidence that
withdrawal of such funds cannot be made even by
an employee remaining in Respondent Employer's
" A similar argument of waiver and abandoment, based upon the same
facts advanced by the Union on brief, appears to border on the frivolous
employ without forfeiting his right to present
grievances and have the Union carry them to`- ar-
bitration. Furthermore, there is no reason to as-
sume that such a fund may be maintained on
deposit by a discharged employee; nor that main-
tenance of such a fund on deposit is a necessary
precondition to reemployment or reinstatement,
nor that, if it is, this cannot or would not be done
by Carver. Finally, it would seem that appropriate
provision could be made in an arbitration,proceed-
ing-as in an unfair labor practice proceeding-
with regard to the incidental repair of the con-
sequences of an improper-discharge, such as by
repayment by Carver to regain his former "pen-
sion" Status, or for alternatives failing such reim-
bursement. Under the circumstances . shown,
Respondent Employer's contention that Carver's
acceptance of its liquidation to him, of his ",pen-
sion" contributions constituted, as matter of law, a
release, abondonment, or waiver of, or estoppel to
assert and pursue, his rights and remedies-includ-
ing even his right to redress from, or a remedial
order in the public interest by,- the Board40-is
hardly more than self-serving, since it sets up the
very action complained of as its own legal justifica-
tion. For the foregoing reasons, this contention of
Respondent is likewise rejected.
Upon the foregoing findings and the entire
record, I state the following:
V. CONCLUSIONS OF LAW
1. At all material times, Respondent Port Drum
Company has been and is an employer engaged in
commerce within the meaning of Section 2(2), (6),
and (7),ofthe Act.
2. At all material times, Respondent Oil, Chemi-
cal & Atomic Workers International Union,
AFL-CIO, Local No. 4-23 has been and is a labor
organization within the meaning of Section 2(5) of
the Act.
3. Assertion of jurisdiction in this consolidated
case is proper.
4. By the conduct alleged in the complaint, as
set forth in section IV and here found to have con-
stituted unfair labor practices, Respondent Oil,
Chemical & Atomic Workers International Union,
AFL-CIO, Local No. 4-23 has violated and is en-
gaged in a continuing violation of Section
8(b)(1)(A) and 8(b)(2), thereby coercing em-
ployees in the exercise of rights guaranteed in Sec-
tion 7 and causing, or attempting to cause, an em-
ployer to discriminate against an employee in viola-
tion of Section 8(a)(3),of the Act.
5. The substantial credible evidence , fails to
establish that Respondent Port Drum Company has
committed unfair labor practices as alleged in the
40 Public interest, not merely reparation of individual wrong, is the
Board's primary concern in administration of the Act. Cf Phelps Dodge
Corp v NLRB., 313 U.S. 117,192-194
PORT DRUM COMPANY
consolidated complaint. Nevertheless, the record at
this hearing establishes that Respondent Port Drum
Company now refuses, and intends to continue to
refuse (in violation of Section 8(a)(1) of the Act),
to arbitrate, with either Respondent Union on be-
half of Charles A. Carver or with Charles A. Carver
individually, the grievance of Charles A. Carver
based upon his, discharge from the employment of
Respondent Port Drum Company on or about July
28, 1966.
6. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
VI. THE REMEDY
Having found that the Act has been violated in
the manner described, I shall recommend an ap-
propriate cease-and-desist order and that ap-
propriate affirmative action be taken to erase the
effects of the unlawful acts in order to enable the
employee subjected to the unlawful discriminatory
treatement to test the propriety of his discharge in
arbitration as provided by the parties' collective
agreement, so as to effectuate the policies of the
Act.
It is apparent from the facts described that mere-
ly to require the Union at this time to proceed to
arbitration of Carver's discharge grievance would
be ineffectual as a remedy, for two basic reasons:
(1) the Union, which has already demonstrated
persistent discriminatory hostility toward Carver,
could readily defeat such a remedy in various way:
e.g., (a) by sleeping on diligent prosecution thereof,
(b) by failing to pursue it with appropriate vigor in
the event of the Employer resistance which may be
expected, (c) by carrying out its declared intention
of appointing Antilley or Burk as the arbitrator on
Carver's behalf, (d) by less than zealous, if not
deliberately poor, protection of Carver's rights and
remedies in and connected with any arbitration
91 If violations of the Act may be predicated upon participation in the
violative acts of others ( see, e g ., N.L.R B v Seine and Line Fishermen's
Union of San Pedro, 347 F 2d 974, 976 (C.A 9, 1967), NLRB v Acme
Mattress Co, 192 F 2d 524 (C A 7), no reason appears why remedies in ef-
fectuation of the policies of the Act may not be Cf. Vaca v Sipes, supra,
386 U S. at 178 and 201-203, National Licorice Co. v N L R B., 309 U S
350, 362-367, 368-369 This is particularly true where , as here, the issues
are, on notice to the party (Employer) involved, fully litigated As has been
indicated , Respondent Employer has explicitly voiced its determination not
to go to arbitration with either the Union or Carver Recalcitrant reliance
upon an unlawful position may mottle the rubric of innocence Cf Miranda
Fuel Co , Inc , 140 NLRB 181, 185-186; and fn. 36, supra
42 Problems in this area have continued to attract the merest of legal
commentators Among the many informative discussions are Aaron, Some
Aspects of the Union's Duty of Fair Respresen'tation, 22 Ohio St L. J 39
(1961), A.B.A. Sec of Labor Law, 1965 Proceedings, 257 ff, , Blumrosen,
Legal Protection for Critical Job Interests: Union-Management Authority
Versus Employee Autonomy, 13 utgers L Rev. 631 (1959), Blumrosen, The
Worker and Three Phases of Unionism • Administrative and Judicial Control
of the Worker- Union Relationship , 61 Mich L Rev 1435 (1963), Cox, In-
dividual Enforcement of Collective Bargaining Agreements, 8 Lab L J. 850
(1957), Cox, Rights under a Labor Agreement, 69 Harv L Rev 601
(1956), Cox, The Duty of Fair Representation , 2 Vill L Rev 151 (1957);
Dunau, Fleming & Levitt, Individual Rights in Grievance-Arbitration
Procedure , 56 LRRM 46 (1964), Hanslowe , Individual Rights in Collective
569
proceeding, calculated to lose rather than win the
case, and (e) by continuing to fail or refuse to pro-
vide any funds which may be required to defray the
expense thereof; and (2) no arbitration would be
possible without the Employer as a party thereto,
and, unless otherwise ordered, the Employer could
and undoubtedly would resist and indefinitely
delay, if not totally thwart, such a proceeding in
various ways, such as through dilatory applications
in local Texas State courts, and the Federal district
court, to stay arbitration (or opposing any applica-
tion to compel arbitration-which the Union as
well as the Employer would welcome being denied)
upon all manner of alleged grounds, including the
Union's failure to demand arbitration (which has
herein been found to have been' unlawful) and the
employee's absence of right to pursue arbitration
(which right has here been upheld)-thereby in ef-
fect interposing for adjudication by such local court
(rather than in the conventional manner, in ac-
cordance with the statutory mandate, at the United
States Court of Appeals level herein) the very is-
sues here decided. For these reasons, I shall recom-
mend that both Respondents be required to ar-
bitrate this matter, under certain safeguards.41
Some of the substantive and adjective problems
encountered in situations of this type have recently
been pointed out in Vaca v. Sipes, 386 U.S. 171,42 by
the Supreme Court, which had earlier in effect in-
vited the Board to tailor meaningful remedies in its
cases. See Fibreboard Corp. v. N.L.R.B., 379 U.S.
203, 215-217; N.L.R.B. v. Erie Resistor Corp., 373
U.S. 221, 236; N.L.R.B. v. Seven-Up Bottling Co.,
344 U.S. 344, 346-349; Virginia Electric & Power
Co. v. N.L.R.B., 319 U.S. 533, 539-540: Phelps
Dodge Corp. v. N.L.R.B., 313 U.S. 177, 188, 194,
198. Indeed, the Board has regularly been re-
minded of or upheld in its exercise of its responsi-
bility in this regard under the statutory design.43 It
would be highly anomalous to leave Respondent
Employer free to continue to assert as a bar to ar-
Labor Relations, 45 Cornell L Q 25 (1959), Murphy. The Duty of Fair
Representation under Taft-Hartley, 30 Mo L Rev. 373 (1965); Rosen, The
Individual Worker in Grievance Arbitration Still Another Look at the
Problem, 24 Md L Rev 233 (1964), Silver, Rights oflndividual Employees
in the Arbitral Process, 12 N Y U Conf Lab 53 (1959), Severn, Race Dis-
crimination and the National Labor Relations Act The Brave New World of
Miranda, 16 N Y U Conf Lab 3 (1963 ), Sovern, Section 301 and the Pri-
mary Jurisdiction of the NLRB, 76 Harv L Rev. 529 (1963), Summers, In-
dividual Rights in Collective Agreements and Arbitration , 37 N Y U L
Rev 362 (1962), Wellington , Union Democracy and Fair Representation.
Federal Responsibility in a Federal System, 67 Yale L J 1327 ( 1958),
Comment, Discrimination and the NLRB , 32 U. Chi L Rev 124 (1964);
Comment, Federal Protection of Idividual Rights under Labor Contracts,
73 Yale L. J 1215 (1964 ), Comment, Racial Discrimination and the Duty
of Fair Representation , 65 Colum. L. Rev 273 (1965), Note, Administra-
tive Enforcement of the Right to Fair Representation , 112 U Pa L Rev
711(1964)
43 Cf., e g , N L .R B v. Seine and Line Fishermen's Union, etc , 374 F 2d
974 (C A 9, 1967), NLRB v Delight Bakery, Inc, 353 F 2d 344,
346-347 (C A 6), Aztec Ceramics Co v. N.L R B , 320 F.2d 757, 760-761
(CA D.C.); NLRB. v A. P. W Products Co , 316 F.2d 899, 904-906
(C A 2), Piasecki Aircraft Corporation v N LRB., 280 F 2d 575 (C A 3),
cert. denied 364 U S 933, Summit Mining Corp v N L R B, 260 F 2d894,
900 (C.A 3); N.L R B v Caldarera , 209 F 2d 265, 268-269 (C A 8)
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bitration the very failure of the Union here held to
have been unlawful and which it is the central pur-
pose of this proceeding to erase and redress. Only
through simple, speedy restoration of all parties to
the status quo ante and directing that what should
have been done shall now be done without further
delay-namely, arbitrating-can the effects of the
Union's unlawful acts be undone. The alternative is
a costly, peripatetic, many-act extravaganza involv-
ing a juridical roundelay in competing forms and
forums-reminiscent of ancient battles of writs,
with wrongs unredressed for wealth of remedies-
and the impecunious discharged wage earner view-
ing the bizarre spectacle with mounting dismay.
The Recommended Order would provide a simple,
speedy solution tailored to the situational needs.
"The Act does not require the Board to play hide-
and-seek with those guilty of unfair labor prac-
tices." N.L.R.B. v. Mexia Textile Mills, Inc., 339
U.S. 563, 568.
Under the Recommended Order, the Employer
would have the right to raise in the arbitration
proceeding defenses other than those which it has
here litigated, including its defense here based upon
the Union's unlawful refusal to demand arbitration
and its defense that Carver failed properly to de-
mand and pursue arbitration. The Recommended
Order further provides that in the event arbitration
of Carver's case is now barred or precluded
because of the Union's unlawful refusal to proceed
with arbitration, the Union shall respond to Carver
in damages by way of backpay and other losses
which he may establish in a proceeding supplemen-
tal hereto. Jurisdiction is retained for the purpose
of assessing such damages. Various other provisions
ancillary to the objective of erasing the effects of
the Union's unlawfully discriminatory acts against
Carver have been included in the Recommended
Order, so as to effectuate the policies of the Act. To
avoid burdening this Decision with a separated
discussion at this point, as a service to convenience
elucidative marginalia have been subjoined to the
specific provisions themselves, in the Recom-
mended Order, where appropriate.
[Recommended Order omitted from publica-
tion. ]