The Newspaper Guild of Brockton

National Labor Relations Board - Board Decisions

Feb 12, 1973

201 N.L.R.B. 793 (N.L.R.B. 1973)

THE NEWSPAPER GUILD OF BROCKTON
The Newspaper Guild of Brockton , AFL-CIO and
Enterprise Publishing Company . Case 1-CB-1765
February 12, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On April 20, 1972, Administrative Law Judge'
Stanley N. Ohlbaum issued the attached Decision in
this proceeding. Thereafter, the General Counsel and
Charging Party each filed exceptions and a support-
ing brief, and the Respondent filed an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm his rulings, find-
ings,2 and conclusions.3
We have noted particularly General Counsel's and
Charging Party's contentions that our Collyer4 policy
ought not be applicable here because employees have
a statutory right to sever their affiliation with a union
at will. They therefore argue that this case thus
involves problems of statutory interpretation, rather
than a dispute which is capable of resolution by an
arbitrator whose jurisdiction is limited to questions
of contract interpretation. In making these conten-
tions, they rely primarily on the precedent of Marlin
Rockwell Corporation, 114 NLRB 553. We do not
agree with these contentions. The dispute here is as
to whether the Union violated the Act by requesting
the discharge of employees by reason of their
nonpayment of dues. If, as the Union contends, there
was in effect at the relevant times a maintenance of
membership provision applicable to the employees, a
proper request for the enforcement of such a clause
does not violate our Act. If, on the other hand, no
such contractual obligation was applicable under the
facts of this case and under a proper interpretation of
the contract and of principles of contract law, then
the request does violate our Act. Thus, the real issue
in this case boils down to a combination of factual
determinations and questions of contract law and
, The title of "trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 We note the Administrative Law Judge's erroneous finding that the
effective date of the parties ' 1970-72 collective-bargaining agreement was
April 24, 1970. This contract clearly provided that for most of its provisions,
but specifically for its maintenance of membership clause , it was to be
effective as of October 23, 1970.
2 We would adopt, however, only the first sentence of his Conclusion of
Law 7, since the second sentence is not so much a conclusion of law as a
793
contractual interpretation, all matters fully cogniza-
ble by an arbitrator.5
It is true that Marlin Rockwell Corp. (supra at 562)
dealt with a similar issue and the Board decided the
case on its own assessment of the facts and its own
interpretation of the agreement, concluding that the
Union had unlawfully attempted to compel "their
continuing dues contributions to the Union at a time
when they were not required by the then current
bargaining agreement to again join the Union."
But we determined, in Collyer and succeeding
cases , that such questions of fact and contract
interpretation are best left, in the first instance, to the
parties' grievance and arbitration procedures, when
the parties are bound by their contract to the
utilization of such machinery.
To the extent that General Counsel argues that
Marlin Rockwell or other cases stand for the principle
that there is a guaranteed statutory right to resign
and escape the effect of union-security clauses
regardless of contractual requirements, he is in error.
For in such cases as Hershey Chocolate Corporation,
140 NLRB 249, and International Union, UA W and
its Local 899 (John I. Paulding, Inc.), 142 NLRB 296,
it has been established that no such guarantee exists
in the face of appropriate contractual provisions
which, when applied to the facts, do not call for such
an escape from the agreed-upon dues obligation.
Thus, we have concluded that the policy of deferral
announced in Collyer is fully applicable to the
dispute between these parties, and we shall enter an
order consistent with that policy.
REMEDY
Without prejudice to any party and without
deciding the -merits of the controversy, we shall order
that the complaint herein be dismissed, but we shall
retain jurisdiction for a limited purpose. We are
aware that the parties herein have not resolved their
dispute by the contractual grievance and arbitration
procedure and that, therefore, we cannot now inquire
whether resolution of the dispute will comport with
the standards set forth in Spielberg Manufacturing
Company. 6 In order to eliminate the risk of prejudice
to any party, we shall retain jurisdiction over this
dispute solely for the purpose of entertaining an
appropriate and timely motion for further considera-
tion upon a proper showing that either (a) the dispute
description of the type of order we customarily enter in these cases, and
varies in certain respects from the order we deem appropriate herein.
4 Collyer Insulated Wire, 192 NLRB 83-7.
5 For example, one provision of the parties' 1968-70 collective-bargain-
ing agreement to be considered by an arbitrator states that if either party
initiates negotiations for a new agreement at least 60 days before its
expiration date its terms and conditions would remain in effect during such
negotiations.
6 112 NLRB 1080.
201 NLRB No. 118
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has not, with reasonable promptness after the
issuance of the Decision here, either been resolved by
amicable settlement in the grievance procedure or
submitted promptly to arbitration, or (b) the griev-
ance or arbitration procedures have not been fair
and regular or have reached a result which is
repugnant to the Act.7
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed; provided,
however, that:
Jurisdiction of this proceeding is hereby retained
for the limited purposes indicated in that portion of
our Decision and Order entitled "Remedy."
r Collyer Insulated Wire
TRIAL EXAMINER'S DECISION
Preliminary Statement
STANLEY N. OHLBAUM, Trial Examiner: This proceeding
under the National Labor Relations Act, as amended, 29
U.S.C. Sec. 151, et seq. (Act), based on a complaint issued
by the Regional Director for Region I of the National
Labor Relations Board on August 10, as amended August
23, founded on a charge filed against the above Union on
March 10, 1971, by Enterprise Publishing Company
(Brockton Enterprise; Charging Party; Employer) was
tried before me in Boston, Massachusetts, on October 26
and November 11, 1971, with all parties participating
throughout by counsel, who filed briefs, received on
January 10, 1972, pursuant to time extended on applica-
tion. Briefs, as well as the entire record made at the trial,
have been carefully considered by me.
The underlying substantive issue tendered by the
pleadings is whether Respondent Union violated Section
8(b)(1)(A) and (2) of the Act through threatening and
attempting to procure the discharge of three employees of
the Charging Party for nonpayment of union obligations.
A threshold issue is whether the Board should defer to or
withhold its exercise of jurisdiction herein pending arbitra-
tion between the parties of the issue of whether, under the
terms of a valid subsisting collective agreement between
the parties, the Union properly required the discharge of
the employees in question because of their admitted
nonpayment of union dues obligations.
Upon the entire record i and my observation of the
testimonial demeanor of the witnesses , pursuant to Section
10(c) of the Act, I state and make the following:
FINDINGS OF FACT
1. At all material times, The Newspaper Guild of
Brockton , AFL-CIO, Respondent herein , with principal
office and place of business at 60 Main Street in the city of
Brockton, county of Plymouth, Commonwealth of Massa-
chusetts , has been and is a labor organization.
2. At all material times, Enterprise Publishing Compa-
ny, Charging Party herein , (a) has been and is a
Massachusetts corporation with principal office and place
of business at 60 Main Street in the city of Brockton,
county of Plymouth , Commonwealth of Massachusetts; (b)
has been and is engaged in the business of publishing,
selling, and distributing a daily newspaper of general
circulation , known as the Brockton Enterprise (and/or
Brockton Daily Enterprise, Brockton Enterprise and
Brockton Times, or Brockton Enterprise-Times); (c) in the
course and conduct of the business described in 2(a) and
(b) hereof , has continuously been and is (1) causing large
quantities of newsprint used by it in the publication of its
said newspaper to be purchased and transported in
interstate commerce from and through various States of
the United States other than the Commonwealth of
Massachusetts , and (2) subscribing to interstate news
services, publishing nationally syndicated features, and
advertising nationally sold products; and (d) has been and
is conducting its business described in 2(a), (b), and (c)
hereof with a gross annual volume in excess of $200,000.
3. On July 23, 1968, the parties to this proceeding, who
have had a collective-bargaining relationship since about
1937, entered into a collective agreement (G.C. Exh. 2A;
1968-70 collective agreement) in Brockton , Massachusetts,
dated that date , effective April 24, 1968, to April 23, 1970,
wherein and whereby:
a. The collective-bargaining unit, to which said agree-
ment was applicable , was defined to be all employees of
the Employer in its editorial, advertising , business , circula-
tion , and maintenance departments , other than certain
executive , managerial , supervisory, and other specifically
exempted personnel not herein involved. (Id., p. 1, art. I.)
b. Each unit employee who at the time of the execution
thereof was, or during the term thereof became , a member
of the Union was required, as a condition of continued
employment, to maintain such membership in good
standing during the term of said agreement . (Id., p. 6, art.
IV, sec. 6.)
c. There was established a grievance-arbitration ma-
chinery and procedure to which the parties obligated
themselves to resort , at the behest of either party,
concerning any matter involving the interpretation or
violation of any provision of said agreement . (Id., p. 10, art.
X.)
d. Said agreement , and each and every provision
thereof, was continued in force and effect after its
aforementioned term (i.e., after April 23, 1970), during the
period of any negotiations between the parties, instituted
no less than 60 days prior to said term, looking toward a
new collective agreement . (Id., p. 14, art XVI, sec. 2.)
4. On October 23, 1970, the parties to this proceeding
entered in Brockton, Massachusetts , dated that date,
effective April 24, 1970, to into a collective agreement
(G.C. Exh. 2B; 1970-72 collective agreement) April 23,
1972, wherein and whereby:
a. The collective-bargaining unit, to which said agree-
I Trial transcript as corrected in respect to obvious and typographical
errors listed in annexed "Appendix " (Omitted from publication I
THE NEWSPAPER GUILD OF BROCKTON 795
ment was applicable, was defined to be all employees of
the Employer in its editorial, advertising, business, circula-
tion, and maintenance departments, other than certain
executive, managerial, supervisory, and other specifically
exempted personnel not herein involved. (Id., p. 1, art. I.)
This constituted a continuation of the collective-bargaining
unit set forth in the parties' 1968-70 collective agreement
as hereinabove set forth in finding 3a, supra.
b. Each unit employee who at the time of the execution
thereof was, or during the term thereof became, a member
of the Union, was required, as a condition of continued
employment, to maintain such membership in good
standing during the term of said agreement. (Id., p. 3, art.
IV, sec. 6.) This constituted a continuation of the same
provision set forth in the parties' 1968-70 collective
agreement as hereinabove set forth in finding 3b, supra.
c. There was continued in effect substantially the same
grievance-arbitration machinery and procedure contained
in the parties' 1968-70 collective agreement as hereinabove
set forth in finding 3c, supra, obligating the parties to resort
thereto, at the behest of either party, concerning any
matter involving the interpretation or violation of any
provision of said agreement. (Id., p. 5, art. X.)
d. The Employer was required, pursuant to the volun-
tary written authorization of a unit employee, to deduct
monthly from the earnings of said employee and pay over
to the Union, said employee's union membership dues.
Each such written union dues-checkoff authorization by its
terms specified that said authorization should remain in
effect until revoked by the employee executing the same;
except that it would be irrevocable for 1 year from the date
thereof or until termination of said collective agreement,
whichever occurred earlier; with the further provisos that
said authorization should be deemed automatically re-
newed for successive yearly periods or for the term of each
succeeding collective agreement (whichever period was
shorter), unless the employee gave registered mail notice of
revocation to the Employer and the Union within the
period of 15 to 30 days prior to the expiration of any such
successive yearly period or 15 to 30 days prior to the
expiration of each such succeeding collective agreement
(whichever occurred sooner), such notice of revocation to
be effective for the calendar month following the calendar
month of its receipt by the Employer; and with the
additional proviso that the Union could not request or
require the discharge of any unit employee for nonmainte-
nance of union membership in good standing under said
agreement (as described and found in finding 4b, supra),
unless such employee failed to cure his default in the
payment of union dues within 10 working days following
receipt by the Employer as well as said employee of a
notice from the Union concerning such default. (Id., p. 7,
art. XVII.)
e. Said agreement, and each and every provision
thereof, was continued in force and effect after its
aforementioned term (i.e., after April 23, 1972), during the
2 The above "escape" procedure , adopted by union constitutional
change in 1966 (Resp . Exh. 5), constituted a modification of the Union's
previous procedure. which as long ago as 1941 (Resp Exh . 7-(dent.) had
been to vest in the membership of the Local the power to accept or reject a
member 's attempted withdrawal or resignation The former practice, at any
rate as long ago as 1941 (Resp Exh. 7-(dent .), as well as the possible origin
period of any negotiations between the parties, instituted
no less than 60 days prior to said term, looking toward a
new collective agreement. (Id., p. 8, art. XVIII, sec. 2.)
5. At all material times, the Union has been the
exclusive bargaining representative of all employees in the
collective-bargaining unit described in said collective
agreements as found in findings 3a and 4a, supra.
6. The validity of the foregoing collective agreements
and each of them, described and found in findings 3 and 4,
supra, is not questioned and is not in issue herein.
7. Neither of said collective agreements , described and
found in findings 3 and 4, supra (other than as set forth in
finding 4d as to union dues-checkoff authorization),
contains any provision regulating the manner or method of
withdrawal of any employee from union membership or of
any employee's payment of union dues.
8. Other than the 1968-70 collective agreement referred
to in finding 3, supra, as extended in accordance with its
provisions, no other collective agreement was in effect
between the parties at any time between April 24 and
October 23, 1970 (except as the parties' 1970-72 collective
agreement, referred to in finding 4, supra and entered into
on October 23, 1970, was by its terms made effective
retroactively as of April 24, 1970).
9. Pursuant to article XVI, section 2, of the parties'
1968-70 collective agreement referred to in finding 3,
supra, from March II to October 23, 1970, the parties
carried on good-faith negotiations looking toward a new
collective agreement, culminating in the 1970-72 collective
agreement referred to in finding 4, supra.
10. At all material times, there has been in effect a
union constitution (G.C. Exh. 2C), adopted in July 1967,
containing the following provision:
[Art. X,] Section 15. Any offer to withdraw or to
resign from membership in the Guild [i.e., Union] other
than for the reasons set forth in Section 13 of this
Article [i.e., for reasons other than leaving employment
covered by Union contract for employment not so
covered ] shall be submitted in writing to the governing
board of the Local, together with the reasons, in detail,
for such contemplated withdrawal or resignation. The
governing board of the Local shall thereupon inquire
into the causes and vote on whether such withdrawal or
resignation shall be accepted or rejected. Any accept-
ance shall always be conditioned upon full payment of
all financial obligations due and owing to the Guild.
Upon the rejection of any offer to withdraw or resign,
the membership obligations of the member making
such offer shall continue in full force and effect. A
member may appeal rejection of his resignation to the
Local membership. A copy of the offer to withdraw or
resign, together with the action taken by the Local
thereon, shall be forwarded to the IEB [i.e., Interna-
tional Executive Board?]. Such action shall not become
final until approved by the IEB."2
11. At all material times , Marie Alden (also known as
in 1958 (Resp . Exh. 6 -(dent .) of the practice concerning resignation of a
member leaving a shop covered by a union contract for one not so covered,
is shown in documents (Resp . Exhs. 6 and 7-(dent .) offered by the Union at
the hearing . Receipt of those documents was objected to and decision
thereon reserved : the objections are overruled and they are now received for
the limited historical purposes indicated in this footnote.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marie G. Alden; Alden), Edna J. Cooley (Cooley), and
Gloria M. LeVasseur (LeVasseur) were employees of the
Employer and members of the bargaining unit covered by
the collective agreements hereinabove described in findings
3 and 4, supra.
12. At all material times to at least March 23, 1970, said
Alden, Cooley, and LeVasseur were members in good
standing of Respondent Union.
13. Alden became a member of Respondent Union in
or about 1956 and, except for two suspensions for
nonpayment of dues and reinstatements in or about 1963
and 1966, has remained a member of the Union in good
standing until at least March 23, 1970, and has paid all
union dues and assessments through April 1970.
14. Cooley became a member of Respondent Union in
or about 1965 and, except for suspension for nonpayment
of dues and reinstatement in or about 1968, has remained a
member of the Union in good standing until at least March
23, 1970, and has paid all union dues and assessments
through April 1970.
15. LeVasseur became a member of Respondent Union
or or about January 12, 1968, and, with the exception of
nonpayment of dues in or about 1968 or 1969, has
remained a member of the Union in good standing until at
least July 24, 1970, and has paid all union dues and
assessments through July 1970.
16. Upon applying for membership in and becoming
members of Respondent Union, said Alden, Cooley, and
LeVasseur each not only designated the Union as her
collective-bargaining representative but also "pledge[d] to
abide by" the union constitution and local bylaws.
l7a. By letter dated March 23, 1970, during the
pendency of the 1968-70 collective agreement described in
finding 3, supra, Alden wrote Respondent Union (with a
copy to the Employer) as follows:
As of March, 1970, 1 wish to resign my membership in
the Newspaper Guild.
b. By letter dated April 13, 1970, during the pendency
of the 1968-70 collective agreement described in finding 3,
supra, Respondent Union wrote Alden (with a copy to the
Employer) that the Union Local executive board had
considered and disapproved her said March 23, 1970,
request or notification to resign her union membership;
advised her that she could appear before the executive
board if she wished to; and informed her that under the
then current collective agreement her maintenance of
union membership in good standing was required as a
condition of continued employment.
18a. By letter dated March 23, 1970, during the
pendency of the 1968-70 collective agreement described in
finding 3, supra, Cooley wrote Respondent Union (with a
copy to the Employer) as follows:
As of March 23, 1970, 1 wish to resign my membership
in the Guild.
b. By letter dated April 13, 1970, during the pendency
of the 1968-70 collective agreement described in finding 3,
supra, Respondent Union wrote Cooley (with a copy to the
Employer) that, the Union Local executive board had
considered and disapproved her said March 23, 1970,
request or notification to resign her union membership;
advised her that she could appear before the executive
board if she wished to ; and informed her that under the
then current collective agreement her maintenance of
union membership in good standing was required as a
condition of continued employment.
19a. By letter dated April 21 , 1970, during the penden-
cy of the 1968-70 collective agreement described in finding
3, supra Alden wrote Respondent Union (with a copy to
the Employer) as follows:
Inasmuch as my letter of resignation of March, 1970
was not accepted by the Guild, I am sending this as
further clarification:
I wish to resign my membership in the Newspa-
per Guild at expiration of current contract, dated
April 23, 1970.
b. By letter dated May 8, 1970, during the contractual
automatic extension period of the 1968-70 collective
agreement described in finding 3, supra and during the
period of negotiations eventuating in the 1970-72 collective
agreement described in findings 4 and 9, supra Respon-
dent Union wrote Alden (with a copy to the Employer)
that the Union Local executive board disapproved her said
April 23 resignation request or notification; that she could
appear before the executive board at any time if she wished
to; that she was in arrears of union dues for March , April,
and May, 1970; that maintenance of union membership in
good standing was a condition of continued employment;
and that , inasmuch as she was no longer in good union
standing by reason of said dues delinquency, unless she
removed that delinquency by May 21, 1970, the Union
would seek her discharge.
20a. By letter dated April 23, 1970, the expiration date
of the 1968-70 collective agreement described in finding 3,
supra Cooley wrote Respondent Union (with a copy to the
Employer) as follows:
In reference to my previous letter to you regarding my
resignation from the Newspaper Guild, I would like to
resign my membership in the Brockton Guild as of
contract expiration date , April 23, 1970.
b. By letter dated May 8, 1970, during the contractual
automatic extension period of the 1968-70 collective
agreement described in finding 3, supra and during the
period of negotiations eventuating in the 1970-72 collective
agreement described in findings 4 and 9 , supra Respon-
dent Union wrote Cooley (with a copy to the Employer)
that the Union Local executive board disapproved her said
April 23 resignation request or notification ; that she could
appear before the executive board at any time if she wished
to; that she was in arrears of union dues for March, April,
and May , 1970; that maintenance of union membership in
good standing was a condition of continued employment;
and that, inasmuch as she was no longer in good union
standing by reason of said dues delinquency , unless she
removed that delinquency by May 21, 1970, the Union
would seek her discharge.
21 a. By letter dated July 24, 1970, during the contractu-
al automatic extension period of the 1968-70 collective
agreement described in finding 3 , supra, and during the
period of negotiations eventuating in the 1970-72 collective
agreement described in findings 4 and 9, supra, LeVasseur
wrote Respondent Union (with a copy to the Employer) as
follows:
THE NEWSPAPER GUILD OF BROCKTON
Having paid my Guild dues in full through the month
of July, I hereby give notice of my withdrawal of Guild
membership.
It is my desire to have termination of membership
become effective as of today 's date , July 24, 1970.
b. Respondent Union did not reply to the letter
described in finding 2la, supra.
22a. By letter dated July 10 , 1969, while in default in
payment of dues , LeVasseur indicated she wished to
terminate her membership in Respondent Union, with her
reasons in detail for that desire.
b. There is no evidence herein that LeVasseur's
membership in Respondent Union was terminated in
consequence of said July 10, 1969 , letter.
23a. At no time here material did Alden , Cooley, or
LeVasseur (other than in LeVasseur's July 10, 1969 , letter
referred to in finding 22, supra) state in writing or orally
any reason for contemplated withdrawal or resignation
from Respondent Union , under article X, section 15, of the
Union constitution , referred to in finding 10, supra.
b. At no time here material did Alden, Cooley, or
LeVasseur appeal to the Local Union membership or
otherwise seek to appear before the Local executive board
or other union group , body, authority, or official , concern-
ing any rejection of her resignation or attempted resigna-
tion from membership in Respondent Union , under article
X, section 15, of the union constitution referred to in
finding 10, supra, or otherwise.
c. There is no evidence that Alden , Cooley, or
LeVasseur has at any time revoked , canceled , or with-
drawn any union dues-checkoff authorization that may
have been executed herein under article XVII of the
1970-72 collective agreement described in finding 4d,
supra; nor is there any evidence that any of said employees
executed any such authorization.
24. Commencing on August 18, 1970 , and continuing
to October 23, 1970, employees in the bargaining unit
described in findings 3 and 4, supra, engaged in a strike
against the Employer , during which Respondent Union
and the Employer continued to negotiate in good faith as
set forth in finding 9, supra.
25. In August 1970, LeVasseur executed and delivered
to Respondent Union a "Strike Benefit Application
Form," seeking strike benefits available to members of
Respondent Union in good standing. (Resp . Exhs. 3 and
4).3
26. LeVasseur attended , participated in, and voted as a
union member at a meeting of Respondent Union on
August 14, 1970, concerning negotiations between said
Union and the Employer, and a projected strike . (Resp.
Exh. 8) 4
27. No further or other resignation , withdrawal, or
attempted resignation or withdrawal from membership in
Respondent Union by Alden, Cooley , or LeVasseur
occurred at any time on or after the inception of said strike
(referred to in finding 24, supra) on August 18, 1970, other
3 L.eVasseur received no strike benefits inasmuch as she worked
elsewhere than for the Employer during the strike , for approximately $55
per week instead of her usual $99 per week.
4 I credit the testimony of Respondent 's recording Secretary Antoinette
M. Costa and of Newspaper Guild Assistant Director James H. Orcutt, as
797
than through the letters prior thereto, referred to in
findings 17 through 21 , supra.
28. By letters dated January 18, 1971, Respondent
Union wrote Alden , Cooley, and LeVaseur (with copies to
the Employer) that they were in arrears in payment of
union dues and assessments (in the cases of Alden and
Cooley , from May-December 1970; in the case of
LeVasseur , from August-December 1970); that they were
thereby not members in good standing under the union
constitution ; that under article IV, section 6, of the then
current collective agreement (hereinabove described in
finding 4b, supra), maintenance of membership in good
standing in Respondent Union was a condition of
continued employment with the Employer ; and requesting
that they respectively restore themselves to good standing
by February 15, 1971. (G .C. Exhs . 2M, 2N , and 2-0.)
29. By letters dated February 23, 1971 , Respondent
Union wrote the Employer (with respective copies to
Alden , Cooley, and LeVasseur), apprising the Employer
that Alden, Cooley, and LeVasseur had, by virtue of
arrearages to the Union unliquidated after January 18,
1971, notification , failed to maintain membership in good
standing in the Union under article IV , section 6, of the
parties' collective agreement ; and that the Union intended
to request the Employer to dismiss each of said employees
from its employment unless she regained union member-
ship in good standing by payment of said arrearages within
2 weeks . (G.C. Exhs . 2P, 2Q, and 2R.)
30. By letters dated March 9, 1971, Respondent Union
wrote the Employer requesting the discharge from the
Employer's employment of Alden, Cooley, and LeVasseur
under article IV, section 6, of the parties' collective
agreement , in view of said employees' failure to maintain
union membership in good standing. (G.C. Exhs . 2S, 2T,
and 2U.)
31. By letter dated March 10, 1971, the Employer wrote
Respondent Union (with copies to Alden, Cooley, and
LeVasseur), in response to the Union 's letters of March 9,
1971, described in finding 30, supra, refusing to discharge
Alden, Cooley , or LeVasseur in the absence of a determi-
nation by the National Labor Relations Board that the
Union's demands for such discharge were lawful. (G.C.
Exh. 2V.)
32. The Employer 's refusal, as found in finding 31,
supra, to discharge Alden , Cooley, and LeVasseur, from its
employment has continued at all times since March 10,
1971, and continues.
33. At no time since May 1, 1970, have any periodic
dues or assessments of Respondent Union been paid by or
for Alden or Cooley.
34. At no time since August 1, 1970, have any periodic
dues or assessments of Respondent Union been paid by or
for LeVasseur.
35. Alden, Cooley, and LeVasseur are still in the
Employer's employ , as members of the collective -bargain-
ing unit described in findings 3a and 4a , supra.
36. Respondent Union has demanded and demands,
well as Brockton Enterprise employee John H. Schofield , corroborating the
Union 's minutes of that meeting, to that effect, in preference to LeVasseur's
somewhat equivocating uncertainty concerning the precise date of the
meeting
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the Employer has refused and refuses, to arbitrate the
question of whether the discharge of Alden, Cooley, and
LeVasseur was properly required by the Union under the
collective agreements (described in findings 3 and 4, supra)
between the parties.
CONCLUSIONS OF LAW
1. At all material times, The Newspaper Guild of
Brockton, AFL-CIO, Respondent herein, has been and is a
labor organization within the meaning of Section 2(5) of
the Act.
2. At all material times, Enterprise Publishing Compa-
ny, Charging Party herein, has been and is an employer
engaged in commerce and in business activities affecting
commerce, within the meaning of Section 2(2), (6), and (7)
of the Act.
3. Jurisdiction is properly asserted in this proceeding.
4. The collective agreements between the parties,
described in findings of fact 3 and 4, supra, have been and
are valid and binding.
5. At all material times, the issue or issues as to whether
under the terms and provisions of said collective agree-
ments between the parties the discharges of Alden, Cooley,
and LeVasseur were properly required, have been and are
validly and appropriately arbitrable under said agree-
ments, at the behest of either party to said agreements,
including Respondent Union.
6. The demand by Respondent Union that the issue of
whether the, discharge of Alden, Cooley. and LeVasseur
was properly required under the terms and provisions of
said collective agreements between the parties, be arbitrat-
ed, was and is timely .5
7. This proceeding should be deferred, or dismissed
without prejudice to reopening, pending timely exhaustion
of grievance procedures and arbitration of said issues
between the parties, in accordance with their collective
agreements so to proceed and arbitrate. Such deferral or
dismissal should be without prejudice to the assertion
herein or reassertion by the Board of its jurisdiction over
the parties and issues framed by the pleadings herein, if
appropriate on due showing made, upon reasonable
completion of said arbitration proceeding, or, upon due
application, prior thereto if completion of said grievance
procedures or arbitration is unreasonably delayed, or at
any time if the purposes and policies of the Act are not
fulfilled through the conduct and outcome of said
grievance procedures and arbitration.
RECOMMENDED ORDER 6
It is hereby ordered that:
1. Enterprise Publishing Company and The Newspaper
S The special defense of arbitrability was added to the answer , without
opposition by General Counsel or by the Charging Party, at the hearing. It
is noted that Respondent 's original answer was interposed prior to ( i.e., on
August 19, 1971; amended August 25, 1971) enunciation by the Board of its
Collyer (Collyer Insulated Wire, 192 NLRB No 150) doctrine (August 20,
1971). Indeed, in Tulsa- Whisenhunt Funeral Homes, Inc, 195 NLRB No. 20,
In. 1, such a contention was entertained by the Board even though raised by
Respondent Employer for the first time in exceptions to an adverse decision on
the merits by the Trial Examiner in an 8(a)(3) case
6 In the event no exceptions are filed as provided by Sec 102.46 of the
Guild of Brockton, AFL-CIO, shall proceed without
unreasonable delay with grievance procedures and, if said
grievance procedures are not dispositive, arbitration of the
issues of whether the discharge from the employment of
Enterprise Publishing Company of its employees Mane
Alden (also known as Marie G. Alden), Edna J. Cooley,
and Gloria M. LeVasseur, was properly required, at the
behest of The Newspaper Guild of Brockton, AFL-CIO,
on or about and since March 9, 1971, under the terms,and
provisions of collective agreements between said Enterprise
Publishing Company and The Newspaper Guild of
Brockton, AFL-CIO.
2. The within proceeding is hereby dismissed, without
prejudice to reopening and reinstitution, upon notice, in
any of the following events:
a. If said grievance procedures and arbitration are not
proceeded with promptly and completed within a reasona-
ble time after the issuance of this Order.
b. If the purposes and policies of the Act are not
fulfilled through the conduct and outcome of said
grievance procedures or arbitration.
3. Jurisdiction of this proceeding is hereby retained for
the purposes set forth in paragraph 2 of this Order.
RATIONALE
There is here presented a case in which an employer and
a union-with a history of collective bargaining since 1937,
with repeated utilization of arbitration-are bound by
collective agreements, the validity of which is undisputed,
to submit to arbitration questions arising under those
agreements. The agreements required maintenance of
union membership in good standing by certain employees
in the collective-bargaining unit. When three employees
(Alden, Cooley, and LeVasseur), concededly members of
the collective-bargaining unit and who concededly failed to
maintain union membership in good standing-although
they claim they validly relinquished such membership or
"escaped" therefrom 7-and the Union requested their
discharge under the terms of the collective agreements, the
Employer refused to comply. Whatever may be the merits
of the Employer's refusal, it may not be gainsaid that
central to the Union's request and the Employer's refusal is
the question of whether the discharge of the employees
could be required under the very same collective agree-
ments which bind the parties to arbitration of questions
arising thereunder. While it is true that in the course of
determining that question it may be necessary to ascertain
whether the employees validly "escaped" from union
membership and in that connection to resort to provisions
of the union constitution (among other things), the latter
question is ancillary to the primary inquiry into the parties'
(i.e., Employer's and Union's) rights and obligations under
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
r In closing argument , General Counsel conceded that the employees in
question failed to observe Respondent Union's constitutional requirements
in attempting to withdraw or resign , but contended that it was unnecessary
to do so since they were unlawful and could therefore be ignored with
impunity
THE NEWSPAPER GUILD OF BROCKTON 799
the agreements in which they bound themselves to
arbitrate .8 Arbitrators, no less than other triers, are
frequently faced with the necessity of resorting to docu-
ments and other evidence in addition to the immediate
contract they may be called upon to interpret; this possible
necessity is no answer or defense to the obligation to
arbitrate. I accordingly cannot agree with and reject
General Counsel's and the Charging Party's arguments to
the contrary that, since resort to the union constitution will
or may be necessary for the arbitrator, arbitration is for
that reason not required and that the Board should not
defer thereto under its Collyer rationale since "more" than
a "mere" question of contract interpretation is presented.
Such a contention, if accepted, would cast the arbitrator in
the role of a horse with blinders pursuing no more than a
gunbarrel course.
Nor, under what I apprehend to be the Board's rationale
in its recent Collyer and even more recent Tulsa-Whisen-
hunt cases (supra)-notwithstanding my own personal pre-
Collyer, possibly contrary views in an arguably distinguish-
able situation, The Scam Instrument Corporation, 163
NLRB 284, 289-290, enfd. 394 F.2d 884,887 (C.A. 7), cert.
denied 393 U.S. 980,9 recently cited with approval by the
Supreme Court in Allied Chemical & Alkali Workers of
America v. Pittsburgh Plate Glass Co., 404 U.S. 157, 159, fn.
2-was Respondent's demand to arbitrate untimely. In
Collyer, the Board gave effect to an arbitration requirement
even though asserted at the hearing stage after possible
expiration of the contractually agreed time limitation
therefor (dissenting opinion of Member Fanning, 192
NLRB at 846. Indeed, as shown above, fn. 5, in Tulsa-
Whisenhunt the Board even entertained such a contention
when raised for the first time on exceptions by Respondent
employer to an adverse decision by the Trial Examiner on
the merits. Nor does it seem that in any event Respondent
should in this particular case be faulted for not having
pleaded these matters in its answer herein, since the
Board's Collyer doctrine had not as yet been announced
when it interposed its answer here.
Unlike the Tulsa-Whisenhunt case, supra, this case
involves an arbitration provision which, as found above,
mandatorily obligates one party to the contract to arbitrate
at the behest of the other.t° The central issue as to whether
discharge of the employees in question is required under
the parties' collective agreement containing the mandatory
arbitration provision seems beyond question to constitute a
classical situation where arbitration would be compelled by
a court upon the instance of either party to the contract.
See, e.g., Lodge 1327, IAM v. Fraser & Johnston Co., 454
8 Thus, in closing argument , the Charging Party's counsel stated that
"the entire basis of this case is whether or not a demand of the Union for
their discharge was lawful or unlawful and that does not depend at all upon
what the [Union 1 Constitution says. It depends completely on whether there
was a lawful contractual obligation to remain members "
9 In Scam, the proof affirmatively showed that the parties had no
genuine desire to proceed with arbitration (a contingency the Board allowed
for in Collyer, supra, ); and the issue presented was far broader
than that directly concerning the specific employees who might
have been grievants therein Furthermore, the case basically involved an
employer's unilateral modification of a collective agreement at midterm-a
clear violation of Sec. 8(a) (5) of the Act, as expressly pointed out by the
Supreme Court in citing the case at the outset of its recent decision in Allied
Chemical & Alkali Workers of America v Pittsburgh Plate Glass Co, supra,
404 U S. at 159, In. 2.
F.2d 88 (C.A. 9), and cases cited; Associated Press v. Wire
Service Guild,. 73 LRRM 2908 (D.C.S.D.N.Y.; arbi-
tration held properly required of union dispute with
employer regarding employer's refusal to check off union
dues of employees "escaping" during contractual hiatus
period, under renewed collective agreement containing
retroactivity provision); Retail Clerks Local 1552 v. Lynn
Drug Co., 299 F.Supp. 1036 (D.C.S.D. Ohio); Meat Cutters
v. Knouse Foods Cooperative, 259 F.Supp. 592 (D.C.M.D.
Pa.); Kapigian v. Matsushita Electric Corp. of America,
63 LRRM 2095 (D.C.S.D.N.Y.; arbitration of union
grievance over employer 's refusal to discharge union
dues delinquents who were in violation of union-shop
provision of collective agreement may not be stayed,
notwithstanding pendency of NLRB-ordered union-shop-
deauthorization election , since submission to arbitration
does not impinge on Board 's prerogatives). Cf. District
Lodge 751, IAM v. Boeing Co., 65 LRRM 2950
(D.C. Wash.). In connection with the legal enforceability
of the contractual arbitration requirement , while I am not
unaware that an unfair labor practice charge may be filed
by anybody, it is nevertheless the fact that the Charging
Party here is not an employee but the Employer who is a
party to the contract containing the arbitration provision.
In the recent Collyer case (supra), the Board has
announced and emphasized, and thereafter widely publi-
cized, its broad new policy-binding its Trial
Examiners"-to permit and encourage, indeed to require,
parties who have by their voluntary agreement elected and
bound themselves to resort to arbitration, to utilize that
machinery for resolution of their disputes. Although in
Collyer it was an employer who was the respondent and
successfully urged that a charging party union was
required to arbitrate before invoking the jurisdiction of the
Board , it cannot , as here in effect suggested , be seriously
contended that a union respondent, as herein, has a lesser
right to require arbitration under a contract. It may well be
that in some situations, involving other facts, it would be
inappropriate for various reasons, considering the Board's
public responsibilities under the Act, to defer in whole or
in part to arbitration. Such other situations might involve
Section 8(b)(1), 8(a)(3), or other sections of the Act; it
would not seem that as a mechanical rule the mere section
of the Act alleged in the complaint should be woodenly
determinative of whether the Board should withhold its
powers until arbitration has been seasonably completed
(thus, in the instant case , for example, although Sec. 8(b)(1)
is involved, the basic issue turns on a question of contract
interpretation which the parties undeniably bound them-
10 This is in sharp contrast to the collective agreement in Tulsa-
Whisenhunt, which provided:
either party may request arbitration of the unsettled grievance,
but arbitration is not required unless the opposite party consents and a
written submission agreement is entered into specifically outlining the
dispute in issue. . . . In the event either party does not consent to
arbitrate at the request of the other party , then the party making the
request may take any lawful or legal economic action , and the Union
shall have, among other rights , the right to strike . [Emphasis supplied I
As conceded by General Counsel at the hearing in the instant case, here
"there is a binding and final arbitration procedure."
ii Iowa Beef Packers, Inc., 144 NLRB 615, 616 , and cases cited fn. 2;
Insurance Agents' International Union, AFL-CIO (The Prudential Insurance
Company of '.aerica), 119 NLRB 768, 773; Ranco, Inc, 109 NLRB 998,
1009-10, In. 8).
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
selves to arbitrate-thus bringing the case into the kind of
contract interpretation situation at least arguably control-
lec by the Collyer rationale). Experience with the work of
the Board indicates that the situations with which the
Board has in fact been faced , as well as the situations with
which it may hereafter be confronted , are so myriad in
nature that it would be impracticable to attempt to
establish a set of rules definitively anticipating and
regulating the entire subject, as opposed to a carefully
reasoned , ad hoc, case-by-case consideration as specific
occasions arise. Suffice it to say that under the Collyer
rationale the present case appears to present a factual
congeries amenable to not precluding, and perhaps even to
encouraging, access by the parties to that contractually
agreed-upon mechanism for resolving their disputes to
which the courts and Board are "hospitable" (International
Harvester Co., 138 NLRB 923, 927, enfd. sub nom . Ramsey
v. N.LR.B., 327 F.2d 784 (C.A. 7), cert. denied 377 U.S.
1003) in the overall promotion of the national policy of
maintaining industrial peace . Retention of jurisdiction by
the Board to assure seasonable completion of arbitration
and Board overseeing that the arbitrational methodology
and outcome do no violence to either that national policy
or the purposes of the Act, should adequately safeguard
the rights of all concerned , as well as serve to carry out the
public responsibilities of the Board , which may be further
exercised herein if circumstances warrant.
It is for these reasons that I consider that the Board's
rationale as explicated in the majority opinions in Collyer is
applicable and to be given effect in the specific situation
here presented , and have accordingly issued the foregoing
recommended Order without reaching the substantive
issues on the merits.