1 - National Labor Relations Board

34 Thirty-fourth Annual Report of the National Labor Relations Board
not present at every stage of the arbitration proceeding, the
Board pointed out the basic question is really whether the grievant
was honestly and adequately represented by someone purporting
to speak for him. Here, the employee had been represented
by his union at each stage of the proceedings, did not seek to
be represented by his own counsel, and never complained that the
union's representation was unfair or inadequate. Nor did it appear,
in view of the vigorous representation of his interest by the
union, that his presence would have affected the result.
In McLean Trucking Co.,4 the Board declined to withhold
exercise of its jurisdiction to resolve the unfair labor practice
issues posed by an employer's discharge of one of its employees
notwithstanding the availability of contractual grievance-arbitration
machinery for the settlement of the controversy; the
agreement of the parties to the contract to use that machinery
as a basis for settling the dispute ; and the fact that the basic controversy.
in the dischargee's case was the same as that involved
in the cases of the 12 other employees as to whom an arbitration
award had already been issued. It noted that the dischargee's case
was not then pending arbitration, the unfair labor practice issue
had already been fully litigated and was before the Board for
decision, and no issue was involved which only an arbitrator
would be competent to determine. Under such circumstances, the
Board was of the view that it would not effectuate statutory policy
to defer the dischargee's case for arbitration, and proceeded
to resolve the unfair labor practice issues on the merits.5
In another case, 6 employees of the employer engaged in an
unauthorized strike contrary to the terms of their collective-bargaining
agreement, and subsequently two employees, one of whom
was a shop steward, were discharged for encouraging the strike.
The discharges were upheld by a duly constituted employer-employee
committee under the grievance procedures of the bargaining
agreement, which found as a fact that the strike lasted more
than 24 hours and the employer was therefore entitled under
the contract to discharge the employees, although he could not
have done so had the strike lasted less than 24 hours. The Board,
however, found that the employer thereby violated section 8(a)
(3) and that the arbitration panel's award was not entitled to
4 175 NLRB No. 66.
Chairman McCulloch and Member Jenkins, for the majority, dismissed the complaint on the
merits. Member Brown was of the view that the issue of the employee's discharge is one
which should appropriately be referred for resolution to the contractual grievance-arbitration
machinery.
Wagoner Transportatton Co., 177 NLRB No. 22.