Eastern Illinois Gas and Securities Co.

National Labor Relations Board - Board Decisions

Apr 29, 1969

175 N.L.R.B. 639 (N.L.R.B. 1969)

EASTERN ILLINOIS GAS & SECURITIES CO.
Eastern Illinois Gas and Securities Company and
James E. Doan . Case 14-CA-4775
April 29, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On December 13, 1968, Trial Examiner Horace
A. Ruckel issued his Decision in the above-entitled
case, finding that Respondent had not engaged in
the unfair labor practice alleged in the complaint
and recommending that the complaint be dismissed,
as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel filed
exceptions to the Trial Examiner's Decision and
supporting brief, and Respondent filed a brief in
support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to . a
three-member panel.
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, the briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner, only to the extent they are
consistent with our decision herein.
The complaint alleged that Respondent violated
Section 8(a)(1) and 8(a)(3) of the Act by discharging
James E. Doan for engaging in union or concerted
activities. Specifically, the General Counsel contends
that it was Doan's role in instigating a meeting to
protest working conditions that led to his dismissal.
Doan, employed by Respondent in 1965, worked
primarily on installing underground gas lines,
commonly called ditch work. On May 7, 1968,
approximately I month prior to his discharge, Doan,
with two other employees, Glen Harmon and Roy
Lathrop, met with Respondent's local manager,
'We agree with the Trial Examiner, contrary to Respondent's
contention , that the availability of contractual grievance procedures does
not warrant the Board withholding its processes in this case . However, we
do not adopt the Trial Examiner 's statement that " the Board has never
deferred to an arbitration proceeding, which has not reached the point of
arbitration , simply because arbitration is provided for in the union
agreement ." Our decision to entertain this complaint does not turn on the
fact that the parties invoked but then failed to exhaust the grievance
procedure , as the Trial Examiner implies . Although in appropriate
circumstances the Board has discretion to defer to the grievance arbitration
procedure , we do not regard the controversy before us as one which
requires the exercise of such discretion . Here we do not have an issue
which falls within the special competence of an arbitrator to determine.
Rather, we find that the dispute is primarily one which calls for resolution
under the provisions of the statute which we are charged with enforcing.
(See Hoerner- Waldorf Paper Products Co., 163 NLRB No. 105; Pontiac
Motors Division , General Motors Corp., 132 NLRB 413, 415.)
639.
Harold Kimpling to discuss a "run-around", that is
the assignment of purportedly, more desirable indoor
work to a new employee, Raley, rather than to
Harmon who, although senior in service, was kept
on ditch work. Doan, who acted as unofficial
spokesman at the meeting, stated that if the
Company could run Raley around Harmon, the
same thing could happen to him. Although the Trial
Examiner implied, but did not expressly decide, that
this meeting constituted concerted activity; he
nevertheless found that Doan's role in the meeting
was not a causal factor influencing Respondent's
decision to dismiss him. We disagree for the reasons
detailed hereinafter.
The record contains uncontroverted testimony
that. on May 8, Kimpling questioned Harmon at the
jobsite with respect to the meeting the evening
before. Asked why he had complained, Harmon told
Kimpling that he had been talked into it by Doan.
Kimpling stated that there was someone making
trouble, that it had been going on for a long time,
and that if he found out who it was, he was going to
dismiss him. Kimpling indicated that he would also
confer with Doan and Lathrop about the previous
day's meeting.
On June 4, Respondent's General Manager,
Dufloth, informed Doan that he was being
discharged for causing "agitation" among the
employees, for unjustly accusing a fellow employee
of having stolen from another, and for having been
heard to say he did not care how he installed a gas
line since he did not expect to work long for the
Company.
Doan asked what was meant by agitation, but
Dufloth was unresponsive. However, Kimpling, who
was also present, volunteered that Doan had
instigated the May 7 meeting. Dufloth also admitted
that Kimpling had reported that meeting to him
within a week after it occurred.
Subsequently, the Union filed a formal grievance
seeking Doan's reinstatement. At the first meeting
in the grievance procedure, Kimpling again stated
that Doan was terminated for "telling ... these men
that they were being treated unfairly." Doan
acknowledged his role in protesting the "Raley
run-around" and having discussed the matter with
other employees, but then asked if there were
further grounds for his discharge. Kimpling
mentioned only Doan's remark about being
unconcerned if the gas lines were. properly installed,
which Doan then denied.
At a step two grievance meeting, Craddock,
assistant business manager for the Union, testified
that Dufloth indicated that among the causes for the
discharge was Doan's instigating employees Harmon
and Lathrop to protest Raley's being run-around
more senior employees.
On the basis of a variety of considerations set out
in the Trial Examiner's Decision, but without
referring to the foregoing testimony, the Trial
Examiner concluded that Doan was not discharged
175 NLRB No. 108
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for unlawful reasons . We reject this conclusion. As
the evidence set forth above clearly indicates,
regardless of what other grounds Respondent may
have had, at least one of the moving factors entering
into its decision to terminate Doan was his role in
grieving about a working condition on behalf of
himself and his fellow employees.' In so doing,
Doan was engaged in protected, concerted activity.'
Respondent contends, however, that Doan's
grievance had an unlawful objective when measured
against the requirements of Section 9(a) of the Act.
While giving exclusive bargaining status to the
representative chosen by a majority of employees in
a unit, the proviso to Sec. 9(a) also guarantees to
"an employee or group of employees the right at
any time to present grievances to their employer and
to have such grievances adjusted without the
intervention of the bargaining agent so long as the
adjustment is not inconsistent with the terms of the
collective bargaining contract...."
Respondent argues that the adjustment sought by
Doan, that is job assignment according to seniority,
would be contrary to the terms of its
collective-bargaining agreement and, therefore, not
privileged by Section 9(a). Admittedly, the contract
is silent on its face with respect to job assignment
practices. Nevertheless, Respondent contends it is an
implied term of the agreement that work
assignments should be made on the basis of
qualifications, and not seniority, for Respondent had
exercised this right under the prior contract and no
changes had been made during negotiations for its
renewal.
We find no merit in Respondent's argument. It is
true that under Section 9(a), the
collective-bargaining agreement defines the
permissible area within which an employer ay
adjust directly with employees grievances present
by them. Thus, if a grievance poses demands whit
are in conflict with the contract, an employer may
lawfully refuse to resolve the matter without the
presence of a union representative." However, it does
not follow that Section 9(a) thereby confers on an
employer the right to discharge an employee for the
act of grieving. Respondent's view of the proviso
would lead to the incongruous result of, on the one
hand, granting an employee freedom to present his
complaints to his employer without the intervention
of the bargaining representative and on the other,
subjecting that employee to the peril of discharge
should his complaint contradict the terms of the
contract. Such a construction of the statute is at
variance with Board precedent holding that the
protections of the Act are not dependent upon a
correct interpretation of the contract or on the merit
or lack of merit of the concerted activity.'
Therefore, it is not necessary to decide whether the
right to assign jobs by merit was in fact an implied
term of the agreement or whether Doan's grievance
was inconsistent with it, for in any event, his
discharge for such activity would still be unlawful.
Accordingly, for the foregoing reasons, we find
that Doan was engaged in protected, concerted
activity in grieving about the Raley "run-around,"
and that his discharge in part for such activity
violated Section 8(a)(1) of the Act.'
THE REMEDY
Having found that the Respondent violated
Section 8(a)(1) by discharging James E. Doan, we
shall order Respondent to cease and desist
therefrom and to offer Doan immediate and full
reinstatement to his former or substantially
equivalent position, without prejudice to his
seniority or other rights and privileges, and to make
him whole for any loss of pay he may have suffered
by reason of Respondent's discrimination against
him, by payment to him of a sum of money equal to
that which he would have normally earned as wages
from the date of his discharge to the date of the
Respondent's offer of reinstatement, less his net
earnings during said period, in a manner consistent
with Board policy set out in F. W. Woolworth
Company,, 90 NLRB 289. Interest on backpay shall
be computed in the manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 716.
We shall also order the Respondent to cease and
desist from in any like or related manner infringing
upon the rights of employees as guaranteed by
Section 7 of the Act.
AMENDED CONCLUSIONS OF LAW
1. By discharging James E. Doan for engaging in
protected, concerted activity, Respondent has
interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in
Section 7 of the Act, and has thereby engaged in
unfair labor practices proscribed by Section 8(a)(1)
of the Act.
2. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Eastern Illinois Gas and Securities Company,
'Having found that Doan was presenting a grievance, we reject the
argument that Doan was attempting to negotiate with Respondent in
derogation of its duty to bargain with the exclusive representative.
'Bonded Armored Carrier, Inc, 147 NLRB 100; Douds v. Retail Store
Union , 173 F 2d 764 (C.A 2).
'See The Ingalls Shipbuilding Corporation, 143 NLRB 712
'Anaconda Aluminum Company, 160 NLRB 35, 40; Mushroom
Transportation Co, Inc., 142 NLRB 1150, 1158.
'Since there is no evidence in the record of union animus motivating the
discharge , we do not find that Respondent's conduct also constitutes a
violation of Section 8(a)(3) of the Act as alleged in the complaint.
EASTERN ILLINOIS GAS & SECURITIES CO. 641
Olney, Illinois, its officers, agents, successors, and
assigns , shall:
1. Cease and desist from:
a. Interfering with, restraining, or coercing
employees in the exercise of their right to engage in
concerted activities for mutual aid and protection by
discriminating in regard to their hire, tenure of
employment, or any term or condition of
employment.
b. In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their right to engage in, or to refrain from engaging
in, any or all the activities specified in Section 7 of
the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Offer James E. Doan immediate and full
reinstatement to his former or substantially
equivalent position, without prejudice to his
seniority and other rights and privileges, and make
him whole for any loss of earnings he may have
suffered by reason of Respondent's discrimination
against him as set forth in the section of this
Decision and Order entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due and all other rights under
the terms of this Order.
(c) Notify the above-named employee if presently
serving in the Armed Forces of the United States of
his right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(d) Post at its plant in Olney, Illinois, copies of
the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional
Director for Region 14, shall, after being duly
signed by the Respondent's authorized
representative, be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in
conspicuous places, including all places where
notices to its employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 14, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
MEMBER BROWN, dissenting:
Originally, all involved herein - Doan,
Respondent, and the Union - agreed to resolve the
dispute arising from Doan's discharge under the
'In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order."
grievance provisions of the contract between
Respondent and the Union , which represents
Respondent ' s employees! A grievance was
thereupon filed on Doan ' s behalf and it was
processed through the second step of the grievance
procedure , following which " final and binding
arbitration" could have been invoked by the Union.
Instead , Doan then decided to seek relief elsewhere
for the claimed wrong against him and he filed these
unfair labor practice charges. Respondent and the
Union continued processing his grievance and they
have agreed upon an arbitrator selected from a
panel submitted by the Federal Mediation and
Conciliation Service who stands ready to hear
Doan ' s grievance.
Clearly, therefore , as recognized by the parties
themselves , an agreed-upon procedure exists for
settling the disputed matter , but it has not been fully
utilized . Consistent with my views heretofore
expressed ,' I believe that the statutory objective of
fostering voluntary settlements by parties to
collective-bargaining agreements requires that Doan
exhaust such contractual grievance-arbitration
machinery available to him before the Board
processes this case any further . I would , accordingly,
hold this case in abeyance while Doan submits his
grievance to the arbitrator and secures a disposition
thereof . Only then would I proceed , if necessary, to
determine whether the proceedings before the
arbitrator meet the applicable standards of
Spielberg.' °
'In the contract , Respondent agrees not to discriminate against any
union member nor deny him employment because of his lawful activities in
matters affecting the Union , and a gnevance-arbitration procedure is
created for resolving disputes arising thereunder . Discrimination against
Doan because of his union and protected concerted activities, which
Respondent denies, is what the charge filed by Doan , and the complaint
allege.
'See, for example , Anaconda Aluminum Company, 160 NLRB 35; Thor
Power Tool Company, 148 NLRB 1379; Cloverleaf Division of Adams
Dairy Co., 147 NLRB 1410; LeRoy Machine Co, Inc. 147 NLRB 1431.
"Spielberg Manufacturing Company, 112 NLRB 1080.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the 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 our employees that:
WE WILL NOT interfere with, restrain, or coerce
employees in the exercise of their rights to engage in
concerted activities for their mutual aid and protection
by discriminating in regard to their hire, tenure of
employment, or any term or condition of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their right to engage in, or refrain from engaging in,
any or all the activities specified in Section 7 of the
Act.
WE WILL offer to James E. Doan immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority and other
rights and privileges, and make him whole for any loss
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of pay he may have suffered by reason of our
discrimination against him.
WE WILL notify the above-named employee if
presently serving in the Armed Forces of the United
States of his right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
Dated By
EASTERN ILLINOIS GAS
AND SECURITIES
COMPANY
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting , and must not be altered,
defaced , or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions they may communicate
directly with the Board 's Regional Office, 1040 Boatmen's
Bank Building , 314 North Broadway , St. Louis, Missouri
63102, Telephone 314-622-4167.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
HORACE A. RUCKEL, Trial Examiner: Pursuant to a
charge filed on August 8, 1968 , by one James E. Doan,
the General Counsel for the National Labor Relations
Board , herein called the Board , acting through its
Regional Director for Region 14 (St. Louis, Missouri), on
September 19, 1968 , issued a complaint of unfair labor
practices against Eastern Illinois Gas and Securities
Company, herein called the Respondent , alleging that it
had discharged employee James Doan because he had
engaged in union or other concerted activities in violation
of Section 8(a)(3) and (1) of the National Labor Relations
Act (29 U.S.C. Section 151 et seq . ), as amended , herein
called the Act.
Pursuant to notice I conducted a hearing on October
29-30 at Olney, Illinois , at which the parties were
represented by counsel. At the conclusion of the hearing
the parties waived oral argument and thereafter filed
timely briefs.
Upon the entire record , and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is an Illinois corporation with its
principal office and place of business at Olney, Illinois,
where it is engaged as a public utility engaged in the sale
and distribution of gas and related products . During the
year ending July 21, 1968, Respondent performed services
valued in excess of $250,000, of which services valued in
excess of $50,000 were performed for various enterprises
located in States other than the State of Illinois. It is
conceded that the Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 702, International Brotherhood of
Electrical Workers , AFL-CIO, herein called the Union, is
a labor organization admitting employees of Respondent
to membership.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Discharge of James Doan
Doan came to work for Respondent in May 1965 and
was discharged on June 4, 1968 . His work was that of
installing underground gas lines, commonly called ditch
work, and on occasion connecting gas appliances in
private homes . His classification was that of utility man
No. 2. He joined the Union in May, 1966, shortly after
the Respondent signed a union shop contract . He held no
office in the Union and it does not appear that he was
otherwise active in its affairs.
During the early part of May 1968 , Glen Harman, also
a utility man with a No . 2 classification whose job
consisted largely of ditch work , discussed with Doan
Respondent ' s assignment of Raley, an employee of the
same classification , who was employed subsequently to
both Harman and Doan , to connect a stove in a home,
while Harman was assigned outside work . Accordingly,
Harman and Doan , together with Roy Lathrop , a welder
who had worked with Raley on the job in question , called
upon Harold Kimpling , Respondent ' s Olney manager, in
his office . There Harman complained that Raley was
being "run around" him, although he had more seniority
than Raley .' Kimpling pointed out that Raley had had 17
years' experience at another public utility company, and
was better qualified for such an assignment than Harman.
He suggested that both Harman and Doan could gain
experience during their spare time by practicing fitting
parts together on their own time . When they asked why
this should be done on their own time , Kimpling expressed
the thought that he, Kimpling , should perhaps get together
with the Union and set up a training program which
would better qualify men in No. 2 and No. 3
classifications . The others agreed that this might be a
good idea, and the meeting dispersed.
Doan, however , stayed behind after Harman and
Lathrop had left, and Kimpling amplified his idea of a
training program in conjunction with the Union, and
discussed it at some length with Doan . During the
discussion Kimpling asked Doan, according to the latter's
testimony , if he thought employees Bob Travers and Dale
Thomas, both having the same classification as Doan,
were qualified for all phases of gas work , and Doan
replied that he did not . According to Kimpling, Doan
went on to say, with respect to Thomas , that he was not
such a man as Respondent should promote to utility No.
1, which it had done a week previously , because he had
"rolled" employee Bowman sometime previously during a
drinking party and had taken his wallet , with 20 to 30
dollars saying he was not going to return it until Bowman
asked him for it . Doan denied telling Kimpling this on
this occasion . He at no time testified that he did not in
fact inform Kimpling at a later time . I credit Kimpling's
testimony as to Doan 's accusation of Thomas.
'Although Harman was older in point of service than Raley , it is not
contended that Respondent was bound either by custom or the Union's
contract to observe seniority in the assignment of this work.
EASTERN ILLINOIS GAS & SECURITIES CO. 643
Kimpling called Thomas to his office where, in the
presence of Harold Dufloth , then Respondent 's general
manager , Kimpling asked Thomas as to the truth of the
accusation that he ht;d "rolled" Bowman , but without
revealing the source of his information . He stated that if
the accusation was true the Respondent would have to
discharge him.' Thomas heatedly denied "rolling"
Bowman , and managed to convince Kimpling and Dufloth
of his innocence.
Thomas spent a good part of the remainder of the day,
as well as some time during the following days , talking
with employees while they were working , in an endeavor
to find out who his accuser was . Another meeting
followed in Kimpling's office, attended by Thomas, Joe
Craddock , the Union 's business agent , and Messenger, the
shop steward . Craddock on this occasion revealed to
Thomas that Doan was his accuser , and Thomas sought
out Doan. After first denying that he had told Kimpling,
Doan admitted that he had done so. Thomas then hunted
out Bowman who said he did not suspect Thomas of
taking his money, and the two of them went to Kimpling
to whom Bowman repeated this statement.'
During the month following the Doan-Thomas -Bowman
incident , several employees , according to Kimpling's
credited testimony , supported by that of other witnesses,
came to him to complain that Doan was interfering with
their work by engaging them in conversations during
which he expressed personal "gripes" against the
Company , and as to the nature of his work. On one
occasion Bob Reynolds , foreman of No. 1 and No. 2
utility workers , reported to General Manager Dufloth that
Doan told employees working with him that it did not
matter to him how he installed a gas line, or whether it
was in accordance with the prescribed standards , since he
did not plan to remain in Respondent 's employ for long.
On June 4, 1968, Doan was called to the office where
Dufloth, in the presence of Kimpling and Messenger, the
union steward , discharged him. He gave as his reasons
Doan's reported statement pertaining to his installation of
gas lines , which Respondent characterized at the hearing
as the "last straw," and his false accusation of Thomas
which had resulted in Thomas 's taking his own time and
that of other employees in investigating the matter, all of
which upset the employees and interfered with production.
Conclusions
In support of his contention that Doan was discharged
because he engaged "in union or concerted activities," the
General Counsel cites.. as such activities only Doan's
conversation with Kimpling a month before his discharge,
along with Harman and Lathrop , concerning a "run
around" of Harman . I find this insufficient, standing by
itself. Since no grievance was filed, the Union was not
called in. The complaint , which was Harman's, not
Doan 's, and was that another employee was given an
assignment which Harman , who had greater length of
service , would have liked to have because it was pleasanter
'This accusation was particularly damaging to Thomas because at his
new classification as No . I utility he would work mostly inside the homes
or buildings of customers , instead of outside.
'After Doan's discharge he was brought up for trial before the union
membership , found "guilty" on charges related to his false accusation of
Thomas, and disciplined.
work, but to which he was not entitled either by way of
contract or custom . Harman , Doan , and Lathrop all
participated in the discussions , although Doan , who was
more articulate, appears to have spoken more than the
other two. And perhaps to some advantage, since on the
following day Doan was given an inside assignment
although, in fact, he had previously been given such
assignments on occasion. Although the complaint was
Harman's, he was not discharged or otherwise
discriminated against.
There is in this record no evidence of Respondent's
hostility to the Union, or to the collective, concerted
activities of its employees.' These consisted, in Doan's
case , solely in discussing Harman 's complaint as to Raley.
I think it persuasive evidence of Respondent's lack of
hostility to Doan, that Kimpling took the lead after the
others had left in exploring with Doan the feasibility of a
joint Respondent-Union training program for the utility
workers. Respondent may have exaggerated the effect on
his fellow employees of Doan's false accusation of
Thomas, and the resulting distraction and loss of working
time in investigating the matter , and the reports to
Kimpling that Doan was discouraging employees in the
performance of their work and denigrating his own. But I
am not convinced that the Respondent discharged Doan
for his "collective" activity. I find that the General
Counsel has not met his burden of establishing his case by
a preponderance of the evidence, viewing the record as a
whole.'
CONCLUSIONS OF LAW
1. Eastern Illinois Gas and Securities Company, the
Respondent herein , is an employer engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. The preponderance of the evidence does not establish
that the Respondent has engaged in the unfair labor
practices alleged in the complaint.
RECOMMENDED ORDER
It is recommended that the Board issue an order herein
dismissing the complaint in its entirety.
'The only independent violation of Section 8(axl) of the Act alleged in
the complaint , or brought out at the hearing, is said to have occurred
about August 1, 1968, when , according to Harman , in preparation for a
second hearing in step 2 of the grievance procedure on August 3, Harman
was asked by Vice President Morain if he would sign a statement
concerning Doan's conduct as an employee, and stated that if he did not
sign and Doan got his job back it would be harder on everybody, including
Harman . Morain's testimony is that he had no written statement with him
and was only sounding out Harman as a possible witness in the grievance
procedure . He denied making any threats . Admittedly Harman had drunk
three or four drinks of beer and one of Vodka when Morain spoke to him.
I credit Morain 's testimony on this point.
'At the hearing, as well as in his brief, counsel for Respondent
emphasizes that shortly before Doan 's discharge he filed a grievance under
the procedure provided for in the Union's contract , and that since
arbitration was provided for as the last step the Board should defer to
arbitration and dismiss this case . The record reveals, however, that the
grievance was processed only up to step 2 of the grievance procedure and
then dropped because at a hearing on July I in that step , Doan failed to
appear on the ground he was working on a new job, and again failed to
appear at a second hearing on August 3, though duly notified. On August
8 he filed the charge herein . The Board has never deferred to an
arbitration proceeding , which has not reached the point of arbitration,
simply because arbitration is provided for in the union agreement.
Respondent 's motion to dismiss on this ground is accordingly denied