1 - National Labor Relations Board

36 Thirty-fourth Annual Report of the National Labor Relations Board
concluding that the case was an appropriate one for deferra1,1°
the Board pointed out that the parties had had an unusually
long-established and successful bargaining relationship, the dispute
involving substantive contract interpretation almost classical
in its form with each party asserting a reasonable claim in
good faith in a situation wholly devoid of unlawful conduct or
aggravated circumstances of any kind. Furthermore, the parties
had a clearly defined grievance-arbitration procedure which the
employer had urged the union to use for resolving their dispute ;
and, significantly, the employer, although it firmly believed in
good faith in its right under the contract to take the action it did
take, had offered to discuss the entire matter with the union prior
to taking the action.
However, in Combined Paper Mills, 11 a proceeding involving
an allegedly unlawful action by the employer in unilaterally increasing
insurance premiums for unit employees, the Board did
not defer to the arbitration machinery in the parties' contract,
but affirmed a Trial Examiner's finding of a violation of section
8(a) (1) and (5), where the critical facts were not in dispute,
the issue was solely whether a legal obligation existed under the
statute which the Board administers, and the right asserted therefore
grew out of the statute, not the contract. It noted that if the
employer's action in fact contravened statutory rights, any arbitration
decision exculpating him would be in a conflict with the
statute and contrary to its policies.
In another case, 12 the Board held that the lawfulness of a di g-
charge under the Act was not an issue which fell within the special
competence of an arbitrator to determine. It rejected the
employer's contention that the availability of contractual grievance
procedures required the Board to withhold its processes,
but emphasized that the decision to entertain the complaint did
not turn on the fact that the parties invoked but then failed to
exhaust the grievance procedure. The Board was of the view that
the controversy did not require the exercise of its discretion to
defer to the grievance arbitration procedure, but rather was one
which called for resolution under the provisions of the statute
which the Board is charged with enforcing.13
10 Cf. C & S Industries, 158 NLRB 454, 459-460 (1966).
174 NLRB No. 71.
12 Eastern Illinms Gas & Securities Co., 175 NLRB No. 108.
" Chairman McCulloch and Member Jenkins, for the majority, found an 8(a) (1) violation.
Member Brown, dissenting, would hold the case in abeyance and require the discharge to
exhaust the available contractual grievance-arbitration machinery before processing the
case any further.