Amcar Division

National Labor Relations Board - Board Decisions

Feb 14, 1980

247 N.L.R.B. 1056 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Amcar Division, ACF Industries, Incorporated and
Ronald Buckingham. Case 14-CA- 11918
February 14, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On June 11, 1979, Administrative Law Judge
Marvin Roth issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed an answering brief in response to the General
Counsel's exceptions.
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 attached
Decision in light of the exceptions and briefs and has
decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge only to the
extent consistent herewith.
The complaint alleges Respondent violated Section
8(a)(l) of the Act by informing its production and
maintenance employees, other than maintenance elec-
trician employees, that they would be in violation of a
no-strike clause and would be counted as absent if
they honored a picket line established by maintenance
electricians represented by International Brotherhood
of Electrical Workers Local No. I (IBEW); violated
Section 8(a)(3) and () of the Act by charging certain
named employees and other unnamed employees with
unexcused absences, which may form the basis of
future disciplinary action, because they refused to
cross the IBEW picket line; and violated Section
8(a)(3) and (1) by discharging 4 employees and giving
disciplinary layoffs to 20 employees, because they
refused to cross the maintenance electricians' picket
line.
' Brotherhood of Railway Carmen of the United States and Canada, Lodge
No 365. AFL-CIO-CLC International Brotherhood f Boilermakers. Iron
Ship Builders, Blacksmiths Forgers and Helpers, Local No 27. AFL-CIO;
International Association of Machinists and Aerospace Workers. District No.
9, AFL-CIO: International Brotherhood of Firemen, Oilers and Maintenance
Men. Local No. 6, AFL-CIO; and International Brotherhood of Electrical
Workers. Local No. 1, AFL-CIO (herein respectively called Carmen Lodge
365, Boilermakers Local 27, Machinists District 9. Firemen Local 6, and
IBEW Local 1. and collectively called the Union), are the joint collective-
bargaining representatives, in a single bargaining unit. of Respondent's
production and maintenance employees at the AMCAR plant IBEW Local I
is also the collective-bargaining representative for a separate unit of mainte-
nance electrician employees at the AMCAR facility.
: Southern Greyhound Linte, Division of Greyhound Lines. Inc.. 169 NLRB
627 (1968), enfd. 426 F.2d 1299 (5th Cir. 1970).
Mastro Plastics Corp. and Irench-lmerican Reeds Mfg. Co.. Inc. v.
N.L.R.B.. 350 U.S. 270 (1956): The inmken Roller Bearing Company v.
247 NLRB No. 138
The Administrative Law Judge found that the
Union' waived the right of the unit employees to
engage in sympathy strikes or to honor the picket lines
of other unions establishing picket lines at the AM-
CAR plant and dismissed the complaint in its entirety.
He further found that, assuming arguendo the Union
did not waive these rights, those allegations of the
complaint alleging discriminatory action against indi-
vidual employees should still be dismissed on the
ground that Respondent had no knowledge or reason
to believe that any alleged discriminatee was engaged
in union or other concerted activity protected by the
Act.
The General Counsel excepts, contending that the
Administrative Law Judge erred in finding a waiver of
the production and maintenance unit employees' right
to engage in sympathy strikes or refusals to cross other
unions' picket lines and further erred in finding that
Respondent did not engage in discriminatory conduct
against any of the individual discriminatees. We agree
with the General Counsel.
The right to strike, including the right to engage in
sympathy strikes or in refusals to cross other unions'
picket lines, is a right guaranteed by the Act.` The
right may be waived by appropriate provisions in a
collective-bargaining agreement. However, the Board
and the courts have consistently ruled that, as with
other statutory rights, such waivers will not be readily
inferred-such a waiver must be clear and unmistak-
able.' Contractual waiver of the right to engage in
sympathy strikes or to honor the picket lines of other
unions will only be found if such an intent is embodied
expressly in the parties' collective-bargaining agree-
ment or is clearly evident from the parties' bargaining
history.4
The no-strike provision in the Union and Respon-
dent's collective-bargaining agreement does not ex-
pressly refer to sympathy strikes or to refusals to cross
other unions' picket lines: the Administrative Law
Judge correctly found that a waiver cannot be found
from the express language of the parties' collective-
bargaining agreement.' However, he concluded from
the parties' bargaining history that the Union had
N.L.RB., 325 F.2d 746 (6th Cir. 1963). cert. denied 376 U.S. 971 (1964);
Gary-Hobarl Water Corporation. 210 NLRB 742 (19741. enfd. 511 F.2d 284
(7th Cir. 1975), cert. denied 423 U.S. 925. See. generally, Buffalo Irge Co. v.
United Steelworkers ofAmerica, 428 U.S. 397 (1976).
'American Cyanamid Corporation. 246 NLRB No. 17 (1979); International
Union of Operating Engineers. Local Union 18 (Davis-McKee. Inc.). 238
NLRB 652 (1978); and Gary-Hobart Water Corporation supra.
Art. Vlil of the parties collective-bargaining agreement states:
During the term of this Agreement there shall be no lockout, strike.
stoppage of work or slowdown.
This clause first appeared in the agreement between Respondent and the
Union effective June 15. 1969. through May 2 1972. It has remained
unchanged in each of the subsequent agreements, effective May 3 1972-May
5, 1975; September 22, 1975- September 21. 1978; and the current agreement
effective September 22. 1978-September 21, 198 1.
1056
AMCAR DIVISION, ACF INDUSTRIES
waived the unit employees' right to engage in sympa-
thy strikes. We are unable to agree with this conclu-
sion.
There is no evidence that when the parties first
placed the no-strike clause in their contract they
understood, intended, or even discussed the applicabil-
ity of the provision to sympathy strikes or to refusals
to cross other unions' picket lines. In 1969, after the
Union and Respondent executed the collective-bar-
gaining agreement, two of the Union's five constituent
labor organizations, IBEW Local 1 and Firemen
Local 6, established picket lines at the AMCAR plant
in support of their separate contract demands. Other
unit employees refused to cross the Unions' picket
lines. Respondent's position was that all five of the
Unions comprising the Union were bound by the
contract. By agreement, dated June 18, 1969, with all
of the constituent Unions comprising the Union
except Firemen Local 6, those labor organizations
agreed to direct the employees they represented to
cross the picket line of any union picketing the plant
premises on or about June 19, 1969; the Unions so
directed those employees during the period of June 19
to June 24, 1969, while there remained at the
AMCAR plant the picket line established by Firemen
Local 6. On June 24, 1969, Firemen Local 6 withdrew
its picket line. According to the stipulation submitted
by the parties to the instant proceeding, the IBEW
Local and Firemen Local 6 picket lines were taken
down with the agreement and understanding that as a
matter of law and contract the Union comprises a
single bargaining unit of production and maintenance
employees (excluding maintenance electricians) for
purposes of collective bargaining.
Thus, the 1969 dispute between the parties over the
meaning of the no-strike provision did not involve the
issue of a sympathy strike. Rather, the 1969 dispute
involved only the question of the applicability of the
parties' collective-bargaining agreement to the five
constituent labor organizations comprising the Union.
The Administrative Law Judge conceded as much, but
noted that 1969 provided the genesis for Respondent's
subsequent insistence that the contract's no-strike
provision applied to sympathy strikes and refusals to
cross other unions' picket lines.
In 1972, during contract negotiations, the Union
proposed two revisions to the no-strike provision. The
first proposal was that the no-strike clause be changed
to provide that there would be no strike until a
grievance had been processed through the third
written step, i.e., prior to arbitration, and, further, that
the no-strike provision would not be applicable to
certain safety disputes. The second, more significant,
'See Keller-Crescen Company. a Division of Mosler. 217 NLRB 685 (1975),
enforcement denied 538 F.2d 1291 (7th Cir. 1976); and The Hearst
Corporation. News American Division, 161 NLRB 1405 (1966), affd. sub nom.
The News Union of Balrimore v. N.L.R.B.. 393 F.2d 673, D.C. Cir. 1968).
proposal included the terms of the first proposal and
further proposed the addition of a new article xxxlli
to the contract, stating:
In the event that any Union having an Agreement
with the Company shall establish a picket line
with the authorization of the International of the
Union legally representing the picketing employ-
ees, the employees of any other Union having an
agreement with the Company may refuse to cross
said picket line without violating this Agreement.
The Union stated the new article xxxill would
allow employees represented by each of the five
constituent labor organizations to honor a picket line
established by any other of the five constituent Unions
or any other union. Respondent replied that this
question of respecting a picket line notwithstanding
the existence of a contract had been settled in 1969.
The Union disagreed, stating that the 1969 agreement
applied only to that year and that their members had
the right to respect the picket line of any union,
notwithstanding the contract. On April 28, 1972,
Respondent broke off negotiations with the Union
over the Union's position on the picket line issue and
filed unfair labor practice charges against the Union
for an asserted refusal to honor the 1969 agreement.
The Union filed unfair labor practice charges against
Respondent for breaking off negotiations. As part of a
settlement agreement between Respondent's counsel
and the Union, both unfair labor practice charges were
withdrawn and negotiations resumed. The resulting
1972-75 contract maintained the no-strike clause
without change and did not incorporate the Union's
proposed article xxXill.
The Board has recognized that a union's proposal to
modify a broad no-strike clause to add a provision
allowing employees to engage in sympathy strikes is
evidence that the union making the proposal under-
stood the original broad no-strike provision as prohi-
biting sympathy strikes.' Such an action is particularly
indicative of a union's understanding of the applicabil-
ity of a broad no-strike clause when the union's
proposal is set against a background of contract
discussions involving the applicability of the no-strike
clause to sympathy strikes and refusals to cross other
unions' picket lines.' However, that is not the situation
here. What the Union proposed in 1972 was a
provision allowing each of the five constituent labor
organizations comprising the Union to honor a picket
line established by any other of the constituent
Unions. While the modification would also have
allowed each of the five constituent Unions to honor a
picket line established by other unions at AMCAR
' Keller-Crescent Company, supra.
1057
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
having an agreement with the Company, this was an
insignificant feature of the proposal. The principal
thrust of the proposed modification was to allow the
constituent labor organizations to honor another one
of the constituent Unions' picket lines. This was, of
course, precisely the matter that had led to the 1969
dispute. That the Union's proposal was so perceived
by Respondent is apparent in the Company's response
that this question had been resolved in 1969. More-
over, the only reference to sympathy strikes and
refusals to cross other unions' picket lines in 1972 was
the Union's statement that the meaning and effect of
the proposed provision was to allow employees to
respect picket lines established by any other union
having an agreement with Respondent. On that point,
as with the other matters covered by the Union's
proposed modification, the Union insisted that the
production and maintenance employees currently held
such a right, notwithstanding the contract.
The Administrative Law Judge found that since
1972 Respondent has consistently taken the position
that the no-strike clause prohibits sympathy strikes
and refusals to cross other unions' picket lines. He
further characterized the Union's response to that
position as initial resistance, then unsuccessful at-
tempts to change the contract, and, by October 20,
1978, eventual acquiescence in and agreement with
Respondent's position. In our view to the extent that
he interpreted the Union's 1972 proposal as an
attempt to change the contract with respect to
employees' rights to engage in sympathy strkes and to
refuse to cross other unions' picket lines, the Adminis-
trative Law Judge is in error. That proposal was
primarily directed at the question of the right of the
constituent labor organizations to honor each other's
picket lines. And the negotiations show that Respon-
dent perceived that to be the crucial issue. Indeed, it is
unclear whether Respondent's position in 1972 cov-
ered the question of whether unit employees were
precluded by the no-strike clause from honoring other
unions' picket lines. Moreover, it is uncontroverted
that during the entire 1972 dispute the Union stead-
fastly resisted Respondent's position on the applicabil-
ity of the no-strike clause. Thus, the initial 6 years of
the parties' collective-bargaining history, covering the
parties' initial two contracts containing the no-strike
clause involved herein, lend little, if any, support to
Respondent's position that the no-strike clause was
intended and understood by the parties to apply to
sympathy strikes and refusals to cross other unions'
picket lines.
In 1975, however, the Union did propose a modifi-
cation to the no-strike clause that directly related to
the right of production and maintenance unit employ-
ees to engage in sympathy strikes and refusals to cross
other unions' picket lines. The Union's proposed new
article xxiv stated, "[I]t shall not be a violation of the
Agreement and it shall not be cause for discharge or
disciplinary action in the event an employee refuses to
go through or work behind a picket line at the plant."
When questioned about the meaning of this proposal,
the Union replied that it was specifically directed to
the picket lines of labor organizations other than those
comprising the Union. The contract executed in 1975
retained the no-strike clause unchanged from the
previous contracts. In addition, soon after the parties
executed the 1975 contract, they were confronted by
the same series of events that led to the instant
proceeding: a picket line established by maintenance
electricians represented by IBEW Local 1. In 1975,
although the Union urged unit employees to cross the
IBEW Local 1 picket line, a considerable number of
them refused to do so. Respondent promptly filed for
and obtained, from the United States District Court
for the Eastern District of Missouri, a temporary
restraining order enjoining the Union from inducing
work stoppages in the production and maintenance
unit. On October 2, 1975, Respondent and the Union
executed a settlement agreement in the district court
action. The parties agreed that the complaint be
dismissed, that the temporary restraining order be
dissolved, and that there would be no concerted
walkout or other concerted activities in the production
and maintenance unit with respect to the dispute
between the Company and the maintenance electrician
employees. Furthermore, the Union waived its right to
arbitrate the issue of their asserted right to honor the
IBEW Local 1 picket line; however, the settlement
also specifically stated that "[t]his waiver shall not
apply to any future labor dispute between Plaintiff and
Defendant."
In our view the Union's conduct in 1975 falls short
of demonstrating acquiescence in or agreement with
Respondent's interpretation of the no-strike clause.
Although the Union urged production and mainte-
nance employees to cross the IBEW Local I picket
line, there is no evidence that it did so because the
Union understood the contract's no-strike clause as
requiring the production and maintenance employees
to do so. As the General Counsel points out, there are
other reasonable explanations for the Union's action.
For example, the Union may have believed that the
maintenance electricians were capable of obtaining
their contract demands through economic pressure
without the need for additional assistance from other
union employees. The bare facts that the Union urged
employees to cross the IBEW Local I picket line is not
very persuasive evidence that the Union understood
the contract as requiring such behavior. Similarly,
while the Union's 1975 proposal does provide an
inference that the Union interpreted the contract
consistent with Respondent's position, that inference
1058
AMCAR DIVISION, ACF INDUSTRIES
is not determinative of the issue. In fact it has little
significance here because, as discussed previously, this
was really the first direct proposal and discussion
between the parties on the matter. Thus, it may have
been that the Union felt it necessary to propose the
modification because it desired to clarify the contract
by expressly setting forth the rights the Union believed
its unit employees were entitled to exercise. In short,
there is nothing in the record to support a finding that
the Union felt compelled to propose the modification
because it understood or believed the contract prohi-
bited sympathy strikes.
Nor do we believe that the Administrative Law
Judge was correct in interpreting the Union's reaction
to Respondent's obtaining a temporary restraining
order as providing further evidence that the Union
was moving towards agreement with Respondent's
position. For, in fact, the Union obtained a resolution
of the dispute while retaining its ability to ultimately
contest Respondent's position with respect to the
scope of the no-strike clause. We do not believe that
there is any real significance in the fact that the Union
elected to defer resolution of the dispute to a future
date. There are a myriad of reasons why a party to a
dispute may desire to postpone litigation and we find
it insignificant that the Union chose to avoid what the
Administrative Law Judge termed "a perfect opportu-
nity" to place the no-strike clause before an arbitrator.
Of far more import is the fact that the Union was
careful to preserve its ability to arbitrate the dispute in
the future, indicating that the Union had not accepted
Respondent's position with respect to the applicability
of the no-strike clause.
We are also unable to agree with the Administrative
Law Judge's assessment of the significance of the
Union's failure to attempt to include engaging in a
sympathy strike or refusing to cross another union's
picket line among the categories of the excused
absences contained in the contract's "absence control
provision." The plain fact is that this provision was
negotiated entirely apart from the no-strike clause and
there is nothing in the record to indicate that there
was any recognition of the common issues that might
conceivably apply to both of the separate provisions.
In any event, silence on a matter so distantly related to
the alleged waiver of the statutory right in question
adds little support to Respondent's burden of satisfy-
ing the stringent standard of presenting evidence
making it clearly evident that a waiver occurred.
Finally, in our view, the events of 1978 leading to
the instant action do not establish the Union's
acquiescence in and agreement with Respondent's
interpretation. At no time during the 1978 IBEW
' In reaching his finding of a waiver in the instant case, the Administrative
Law Judge stated that, "if waiver cannot be inferred on the facts of the present
case, then it is difficult to see how waiver could be found on the basis of
Local I strike did the Union urge its unit employees to
cross the picket line and report to work, nor did the
Union ever state that the contract required the unit
employees to do so. While certain officials and
individuals associated with the Union may have
indicated in private discussions that they believed that
Respondent's position was correct, we find greater
significance in the fact that the Union never formally
communicated that position to its membership. The
Administrative Law Judge commented that the
Union's failure to tell its members that they were
required by the contract to cross the maintenance
electricians' picket line may have constituted a breach
of the Union's duty to inform the employees of their
rights and obligations under the contract. However,
that conclusion ignores another reasonable interpreta-
tion for the Union's conduct: simply that the Union
did not agree with that interpretation of the contract.
We also find little significance in the decision to file an
unfair labor practice charge rather than go the
arbitration route. By the filing of the unfair labor
practice charge, the Union had adequate assurance
that the discriminatees' rights were being protected
under the circumstances.
In sum, a review of the parties' bargaining history
shows that prior to the initial contract containing the
no-strike clause there was no understanding, or even
discussion, about the no-strike clause's application to
sympathy strikes or to refusals to cross other unions'
picket lines. During the priod of the initial two
collective-bargaining agreements containing the no-
strike clause, covering the years of 1969 to 1975, there
is little to support the conclusion that the parties
intended the no-strike provision to have such an
extended application. What evidence there is available
indicates that the Union understood the no-strike
clause as not covering sympathy strikes and refusals to
cross other unions' picket lines and that the Company
adopted a contrary position. While in both 1975 and
1978 the Union took some actions which possibly
could be viewed as a weakening of its position
concerning the applicability of the no-strike clause,
these actions do not establish that the Union capitulat-
ed to Respondent's interpretation. In fact the Union
was careful to preserve its ability to contest Respon-
dent's position. Though there are possibly conflicting
inferences to be drawn from the record, we are unable
to agree that the evidence unequivocally shows that
the Union waived the production and maintenance
unit employees' statutory right to engage in sympathy
strikes or to refuse to cross other unions' picket lines.'
Consequently, we find that the Union did not waive
the right of production and maintenance unit employ-
anything short of an express contractual restriction on sympathy strikes or
refusals to cross other union's picket lines." We believe this conclusion to be
an unwarranted exaggeration. Moreover. in American Cyanamid Company.
(Continued)
1059
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees to engage in sympathy strikes or to honor the
picket lines of other unions picketing at the AMCAR
plant.
Turning to the specific allegations of the complaint,
Respondent is charged with violating Section 8(a)(l)
of the Act by its October 19 warning to employees that
if they honored the maintenance electricians' picket
line they would be charged with unexcused absences.
It is uncontroverted that unexcused absences form the
basis for disciplinary action against employees under
the collective-bargaining agreement's absence control
provision. Since we have found that there was no
waiver of the production and maintenance unit em-
ployees' right to engage in a sympathy strike or to
refuse to cross picket lines of another union, it follows
that Respondent's October 19 warning had the effect
of interfering with, restraining, and coercing the
production and maintenance unit employees in the
exercise of their Section 7 rights. Accordingly, we find
that Respondent violated Section 8(a)(l) of the Act by
issuing that warning.
The complaint further alleges that Respondent
violated Section 8(a)(3) and (1) of the Act by charging
Ronald Buckingham, Monte Mizel, Richard Politte,
Marlen Evans, Amel Baldridge, Jr., and other un-
named employees with unexcused absences, which
may form the basis for future disciplinary action,
because they refused to cross the IBEW Local I picket
line; and by discharging 4 employees and giving
disciplinary layoffs to 20 employees, again because
they refused to cross the IBEW Local I picket line.
The Administrative Law Judge credited the testimony
of employees Buckingham, Baldridge, Politte, Marlen
Evans, Edward Joe Evans, and Ronnie Gene Patter-
son that they each refused to cross the maintenance
electricians' picket line on October 20, and/or 23,
and/or 24, 1978, and Respondent's records show that
these employees were each charged with an unexcused
absence on at least one of those dates.9 The parties
stipulated that 20 employees have received 5-day
suspensions, and that 4 employees have been dis-
charged for absenteeism since October 20, 1978, and
that they were each charged with at least one absence
during the period of October 20 through November
supra, the Board recently overruled an administrative law judge and found, on
the basis of the parties' collective-bargaining history, a waiver by a union of its
unit employees' right to engage in sympathy strikes. However, in that case the
union consistently told the company throughout the extended period of their
contract negotiations that the unit employees would cross another union's
picket line and, indeed, on one occasion the union affirmatively accepted the
company's interpretation of the no-strike provisions. Furthermore, in that
case the union never indicated that it was maintaining the position that the
no-strike clause did not apply to sympathy strikes. Finally, during the strike a
union official indicated to the employees honoring the other union's picket
line that their conduct violated the contract. We were able to conclude on the
basis of those facts in American Cyanamid that the union's actions indicated
unequivocally an understanding that the contract's broad no-strike provision
applied to sympathy strikes. A recitation of the facts relied on in American
Cyanamid to establish waiver assists in demonstrating why the Union's
14, 1978. Finally, the parties stipulated that other
employees were charged with unexcused absences
during the relevant time which may provide the basis
for future disciplinary action. The General Counsel
waived identification of other employees charged with
unexcused absences for honoring the IBEW Local 1
picket line until the compliance stage of this proceed-
ing. However, as previously indicated, the Administra-
tive Law Judge further concluded that the allegations
that Respondent violated Section 8(a)(3) of the Act
should be dismissed on the additional ground that
Respondent had no knowledge that any of its employ-
ees were engaging in a refusal to cross the mainte-
nance electricians' picket line. He found that there was
insufficient evidence to establish that Respondent
discriminated against any of its employees by charging
them with unexcused absences because of their union
activities.
The evidence shows that Respondent was very
much aware that some production and maintenance
unit employees were honoring the IBEW Local 1
picket line. In 1975, 3 years earlier, during the
previous maintenance electricians' strike, a large
number of the production and maintenance unit
employees had refused to cross the IBEW Local I
picket line. That Respondent feared a repeat of the
1975 experience is evident from its decision to
distribute a notice to all unit employees stating that, in
Respondent's view, they were required to report to
work. Furthermore, on the following day, October 20,
1978, the first day of the IBEW Local I picket line,
Respondent sent a telegram to the Union demanding
that all reasonable and necessary steps be taken to
insure that the employees represented by the jointly
certified Unions report for and perform work at
AMCAR and warning that Respondent intended to
take all measures it deemed necessary to enforce the
contract. The telegram also stated that as a result of
the maintenance electricians' picket line "other of the
Company's employees have failed and refused to
report to work .... " Thus, Respondent was aware
from the outset of the IBEW Local I strike that
production and maintenance unit employees were
honoring the picket line. Moreover, on October 23,
conduct in the instant proceeding does not lend itself to the same conclusion.
Here the Union strongly resisted Respondent's interpretation of art. vl
throughout much of the parties' bargaining history. Many other of the
Union's actions relied on by the Administrative Law Judge to establish a
waiver are subject to conflicting inferences and are, consequently, too
equivocal to satisfy the stringent standard necessary to demonstrate a waiver
of employees' statutory rights.
' Respondent has excepted to the Administrative Law Judge's credibility
resolutions on this point. It is the Board's established policy not to overrule an
administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
1060
AMCAR DIVISION. ACF INDUSTRIES
1978, the second work day during the strike, Ronald
Buckingham served Respondent with a copy of the
charge he had filed with the Board. The charge alleged
that Respondent had unlawfully charged certain listed
and other unnamed employees with unexcused ab-
sences for their having honored the maintenance
electricians' picket line. There is no room for doubt
that Respondent knew that production and mainte-
nance unit employees were honoring the IBEW Local
1 picket line and that Respondent also knew that its
practice of charging employees engaging in such
conduct with unexcused absences was being chal-
lenged as unlawful. Accordingly, we find that Respon-
dent violated Section 8(a)(3) and (1) of the Act by
charging Ronald Buckingham, Amel Baldridge, Jr.,
Richard Politte, Ronnie Gene Patterson, Marlen
Evans, Edward Joe Evans, and other unnamed em-
ployees with unexcused absences because of their
refusal to cross a picket line established by mainte-
nance electrician employees represented by IBEW
Local 1.
THE REMEDY
We have found, contrary to the Administrative Law
Judge, that Respondent engaged in certain unfair
labor practices in violation of Section 8(a)(1) of the
Act by informing its production and maintenance unit
employees that they would be charged with unexcused
absences if they honored a picket line established by
maintenance electricians represented by IBEW Local
I and further engaged in certain unfair labor practices
in violation of Section 8(a)(3) and (1) of the Act by
charging Ronald Buckingham, Amel Baldridge, Jr.,
Richard Politte, Ronnie Gene Patterson, Marlene
Evans, Edward Joe Evans, and other unnamed em-
ployees with unexcused absences because they refused
to cross said maintenance electricians' picket line. In
our opinion, it is necessary in order to effectuate the
purposes of the Act that Respondent be ordered to
cease and desist from engaging in such unfair labor
practices and to take certain affirmative actions
designed to eliminate the effects of Respondent's
unlawful actions. Respondent will be ordered to
expunge the unexcused absences from the records of
those employees who were unlawfully charged with
unexcused absences. If any of the discriminatees have
been counseled, suspended, discharged, or assessed
with any other form of disciplinary action, as a result
of their having been unlawfully charged with an
unexcused absence or absences, then Respondent will
be ordered to restore said discriminatees to the status
they would have otherwise occupied under Respon-
dent's absence control program had they not been
unlawfully charged with an unexcused absence or
absences. Furthermore, if any of the discriminatees
suffered a loss of earnings as a result of his or her
having been unlawfully charged by Respondent with
an unexcused absence or absences, then Respondent
will be required to make each such discriminatee
whole for his or her loss of earnings suffered as a result
of Respondent's unlawful discrimination, to be com-
puted in the manner set forth in F. W. Woolworth
Company. 90 NLRB 289 (1950), with interest added
thereto as set forth in Florida Steel Corporation, 231
NLRB 651 (1977)."' Finally, Respondent will be
ordered to preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all documents, records, and data necessary to
effectuate these remedial measures.
CONCLUSIONS F01 LAW
1. AMCAR Division, ACF Industries, Incorporat-
ed, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. By informing its production and maintenance
unit employees on October 19, 1978, that they would
be charged with unexcused absences if they refused to
cross a picket line established by maintenance electri-
cians represented by IBEW Local , Respondent has
interfered with, restrained, and coerced employees in
the exercise of rights guaranteed by Section 7 of the
Act in violation of Section 8(a)(1) of the Act.
3. By charging Ronald Buckingham, Amel Bal-
dridge, Jr., Richard Politte, Ronnie Gene Patterson,
Marlene Evans, Edward Joe Evans, and other un-
named employees with unexcused absences because
they refused to cross a picket line established by
maintenance electricians represented by IBEW Local
I, Respondent has interfered with, restrained, and
coerced employees in the exercise of rights guaranteed
by Section 7 of the Act and discriminated in regard to
hire, tenure, and other conditions of employment in
violation of Section 8(a)(1) and (3) of the Act.
4. The aforesaid unfair labor practices have a close,
intimate, and adverse effect on the free flow of
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,
AMCAR Division, ACF Industries, Incorporated, St.
Louis, Missouri, its officers, agents, successors, and
assigns, shall:
"' See, generally, Isis Plumbing & Heating Co.. 138 NLRB 716 (1962).
1061
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Interfering with, restraining, or coercing em-
ployees in the excercise of rights guaranteed in Section
7 of the Act by informing production and maintenance
unit employees that they would be charged with
unexcused absences if they refused to cross a picket
line established at the AMCAR plant by maintenance
electricians represented by IBEW Local 1.
(b) Interfering with, restraining, or coercing em-
ployees in the excercise of rights guaranteed in Section
7 of the Act and discriminating in regard to hire,
tenure, and other conditions of employment in order
to discourage union membership by charging Ronald
Buckingham, Amel Baldridge, Jr., Richard Politte,
Ronnie Gene Patterson, Marlen Evans, Edward Joe
Evans, and other production and maintenance unit
employees with unexcused absences because they
refused to cross a picket line at the AMCAR plant
established by maintenance electricians represented by
IBEW Local i.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act:
(a) Expunge from the records of Ronald Bucking-
ham, Amel Baldridge, Jr., Richard Politte, Ronnie
Gene Patterson, Marlen Evans, Edward Joe Evans,
and other production and maintenance unit employees
charged with unexcused absences for refusing to cross
the picket line at the AMCAR plant established by
maintenance electricians represented by IBEW Local
1, all unexcused absences charged to the above-named
employees because they refused to cross said picket
line; restore said discriminatees to the status they
would have otherwise occupied under Respondent's
absence control program had they not been unlawfully
charged with an unexcused absence or absences; and
make the discriminatees whole for any loss of earnings
suffered as a result of their having been unlawfully
charged by Respondent with unexcused absences
because they refused to cross the picket line at the
AMCAR plant established by maintenance electri-
cians represented by IBEW Local I in the manner 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 under the terms of this Order.
(c) Post at its place of business in St. Louis,
Missouri, copies of the attached notice marked "ap-
pendix."" Copies of said notice, on forms provided by
the Regional Director for Region 14, after being duly
signed by Respondent's representative, shall 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 employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
MEMBER TRUESDALE, dissenting:
I agree with the Administrative Law Judge's find-
ing, for the reasons given by him, that the Union
waived unit employees' right to engage in a sympathy
strike. Accordingly, I would adopt the Administrative
Law Judge's recommendation and dismiss the com-
plaint. However, in doing so, I do not rely on the
Administrative Law Judge's alternative theory for
dismissal, to wit that Respondent's conduct in termi-
nating certain individuals was privileged so long as
Respondent lacked actual knowledge that those indi-
viduals were sympathy strikers.
I In the event that this Order is enforced by a Judgment of United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with, restrain, or
coerce employees in the exercise of rights guaran-
teed in Section 7 of the National Labor Relations
Act by informing production and maintenance
employees that they will be charged with unex-
cused absences if they refuse to cross a lawful
picket line established by maintenance electri-
cians represented by IBEW Local 1.
WE WILL NOT interfere with, restrain, or
coerce employees in the exercise of rights guaran-
teed in Section 7 of the National Labor Relations
Act and WE WILL NOT discriminate against
employees in regard to hire, tenure, and other
conditions of employment in order to discourage
union membership by charging production and
maintenance unit employees with unexcused ab-
sences because they refused to cross a lawful
picket line established by maintenance electri-
cians represented by IBEW Local 1.
1062
AMCAR DIVISION, ACF INDUSTRIES
WE WILl. NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed in Section
7 of the National Labor Relations Act.
WE WILL expunge from the records of Ronald
Buckingham, Amel Baldridge, Jr., Ronnie Gene
Patterson, Richard Politte, Marlen Evans, Ed-
ward Joe Evans, and other production and
maintenance unit employees, all unexcused ab-
sences charged to them because they refused to
cross the lawful picket line established by mainte-
nance electricians represented by IBEW Local 1;
WE WILL also restore said individuals to the
status they would have otherwise occupied under
our absence control program had we not unlaw-
fully charged them with unexcused absences; and
WE WILL make said individuals whole for any
loss of earnings suffered as a result of our having
unlawfully charged them with unexcused ab-
sences because they refused to cross said IBEW
Local 1 picket line.
AMCAR DIVISION, ACF INDUSTRIES,
INCORPORATED
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge: This case was
heard in St. Louis, Missouri, on February 7, 1979. The
charge was filed on October 23, 1978, by Ronald Bucking-
ham, an individual. The complaint, which issued on Novem-
ber 30, 1978, and was amended subsequent to the hearing,
alleges that AMCAR Division, ACF Industries, Incorporat-
ed (herein called the Company or Respondent), violated
Section 8(a)(l1) and (3) of the National Labor Relations Act,
as amended.' The Company's answer, as amended at and
after the hearing, denies that the Company engaged in
conduct violative of the Act, and raises certain affirmative
defenses which are discussed herein. All parties were
afforded full opportunity to participate, to present relevant
evidence, to argue orally, and to file briefs. The General
Counsel and Respondent each filed a brief.
Upon the entire record in this case and from my
observation of the demeanor of the witnesses, and having
considered the arguments of counsel and the briefs submit-
ted by the General Counsel and Respondent, I make the
following:
' Pursuant to leave granted at the close of the hearing, and on the post-
hearing motion of the General Counsel. I allowed the complaint to be
amended. Respondent filed an answer to the amended complaint. However.
the parties in their written statements of position, waived presentation of any
further evidence. The parties agreed. in sum, that identification of alleged
discriminatees who are alleged to be unknown to the General Counsel could
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Company, a New York City corporation with its
principal office and place of business in New York City,
maintains the principal office and plant of its AMCAR
Division in St. Louis, Missouri, where the Company is
engaged in the manufacture, sale, and distribution of
railroad freight cars and related products. The St. Louis
AMCAR plant is the only facility involved in this proceed-
ing. In the operation of its business, the Company annually
ships products valued in excess of $50,000 from its AMCAR
plant directly to points located outside the State of Missouri.
I find, as the Company admits, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
Il. THE ABOR ORGANIZATIONS INVOLVED
Brotherhood of Railway Carmen of the United States and
Canada, Lodge No. 365, AFL-CIO-CLC; International
Brotherhood of Boilermakers, Iron Ship Builders, Black-
smiths, Forgers and Helpers, Local No. 27, AFL-CIO;
International Association of Machinists and Aerospace
Workers, District No. 9, AFL-CIO; International Brother-
hood of Firemen, Oilers and Maintenance Men, Local Union
No. 6, AFL-CIO; and International Brotherhood of Electri-
cal Workers, Local No. 1, AFL-CIO (herein respectively
Carmen Lodge 365, Boilermakers Local 27, Machinists
District 9, Firemen Local 6, and IBEW Local 1 and
collectively the Union) are and have been at all times
material herein labor organizations within the meaning of
Section 2(5) of the Act. At least since 1969, the Union has
been and is the joint collective-bargaining representative, in
a single bargaining unit, of the Company's production and
maintenance employees at the AMCAR plant, excluding
maintenance electrician employees, and has been party to a
series of collective-bargaining contracts covering the produc-
tion and maintenance unit. IBEW Local I is the bargaining
representative of the maintenance electrician employees in a
separate unit.
111. THE ISSUES
The gravamen of the complaint is that the Company
allegedly: (I) violated Section 8(aX1) by informing employ-
ees represented by the Union that they would be in violation
of a no-strike contract clause, and would be counted absent,
if they honored a picket line established by the IBEW Local
I maintenance electricians; (2) violated Section 8(a)(1) and
(3) by charging Ronald Buckingham, Monte Mizel, Richard
Politte, Marlen Evans, Amel Baldridge, Jr., and other
unnamed employees with unexcused absences, which may
form the basis of future disciplinary action, because they
refused to cross the IBEW picket line; and (3) violated
be left to the compliance stage of the proceeding, in the event that Respondent
is found to have engaged in the underlying alleged unfair labor practice. The
parties further agreed that pleadings, as amended, raised no other matters
which warranted presentation of further evidence. As no party wished to
present further evidence, I closed the hearing.
1063
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(a)(1) and (3) by discharging four employees and
giving disciplinary layoffs to 20 employees (all unnamed),
allegedly because they refused to cross the picket line. The
Company denies the allegations of the complaint, and
further contends, by way of affirmative defense, that the
Union waived any right that the production and mainte-
nance employees might have had to refuse to cross the picket
line. In this regard, the Company invokes the no-strike and
"no-fault" absence control provisions of their contract. The
Company further contends that the present case should be
deferred to the contractual grievance and arbitration ma-
chinery, and submits that its position in this case is
confirmed by the Union's acquiesence in the Company's
interpretation of their contract. The operative facts in this
case are uncontroverted, most of the evidence having been
presented by way of stipulation, although the Company
argues that the employee witnesses should not be credited, in
whole or part, with respect to their alleged refusals to cross
the IBEW picket line.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Company and the Union have been parties to a series
of collective-bargaining contracts, effective respectively from
1969-72, 1972-75, and 1975-78, and to the current contract
which was executed in 1978, and was in effect at the time of
the 1978 IBEW strike. Each contract has contained the
following no-strike clause (at art. vill of the current
contract):
During the term of this Agreement there shall be no
lockout, strike, stoppage of work or slowdown.
Each contract has also provided for a grievance procedure
and binding arbitration of grievances (art. VII of the current
contract). Article vii defines a "grievance" as "any dispute
or difference between the employees and the Company
involving the meaning or application of the terms of this
Agreement."
Since 1969, the right or alleged right of unit employees to
refuse to cross picket lines at the AMCAR plant has been a
subject of discussion, negotiation, and litigation between the
Company and the Union, On two occasions prior to the
present case, specifically in 1969 and 1975, unit employees
refused to cross picket lines which were not established by
the Union as their joint bargaining representative. Following
the negotiation of the 1969-72 contract, picket lines were set
up by IBEW Local 1 and by Firemen Local 6, representing
and on behalf of some of the production and maintenance
unit employees. These picket lines were set up by IBEW
Local I and Firemen Local 6 in support of the contract
demands of those unions. Employees of the Company
represented by Carmen Lodge 365, Boilermakers Local
1012, and Machinists District 9 refused to cross the picket
lines of IBEW Local 1 and Firemen Local 6 and report to
work. By agreement dated June 18, 1969, with all of the
labor organizations comprising the Union except Firemen
Local 6, those labor organizations agreed to direct the
employees represented by them to cross the picket line of
any union picketing the plant premises on or about June 19,
1969, and so directed those employees during the period
June 19-24, 1969, while there remained at the AMCAR
plant the picket line established and maintained by Firemen
Local 6. On June 24, 1969, the picket line established and
maintained by Firemen Local 6 was taken down. The picket
line set up by IBEW Local I and that set up by Firemen
Local 6 in 1969 were set up notwithstanding the Company's
position that a collective-bargaining agreement had been
entered into by the certified joint bargaining representative,
i.e. the five labor organizations comprising the Union. The
IBEW and Firemen picket lines were taken down with the
agreement and understanding that as a matter of law and
contract the Union comprises a single bargaining unit of
production and maintenance employees (excluding mainte-
nance electrician employees) for purposes of collective
bargaining.
In the 1972 contract negotiations, the Union proposed
two revisions of the no-strike clause. The first proposal,
dated March 14, 1972, requested that the no-strike provision
(art. v) be changed to provide that there would be no
strike "until a grievance has been processed through the
third written step," i.e., prior to arbitration, and further, that
the no-strike clause would not apply in the event of certain
safety disputes. The second proposal, submitted on March
27, 1972, included the first proposal and further requested
the addition of the following new article, to be numbered
article xxxill;
In the event that any Union having an Agreement with
the Company shall establish a picket line with the
authoriza- tion of the International of the Union legally
representing the picketing employees, the employees of
any other Union having an Agreement with the
Company may refuse to cross said picket line without
violating this Agreement.
The Company asked the Union's position with respect to the
meaning and effect of the proposed new article xxxll. It
was the position of the Union and each of its constituent
labor organizations that should any of them or any other
union set up a picket line at the AMCAR plant, then
employees represented by the Union would be free to respect
those picket lines and not come to work, notwithstanding
the existence of a contract. It was the Company's position
that this question of respecting a picket line notwithstanding
the existence of a contract had been settled (as described) in
1969. The Union stated that the 1969 agreement was only
good for 1969, and that their members had the right to
respect the picket line of any union, regardless of a contract
between the Company and the Union. On April 28, 1972,
the Company discontinued negotiations with the Union and
refused to bargain further with the Union for the stated
reason that the Union's positions with respect to the picket
line issue were contrary to the 1969 agreement. The
Company filed unfair labor practice charges against the
Union with regard to this asserted refusal to honor the 1969
agreement, and the Union filed unfair labor practice charges
against the Company for breaking off negotiations. In an
agreement between company counsel and the Union, both
unfair labor practice charges were withdrawn and the
negotiations resumed, resulting in the 1972-75 contract,
without change in the no-strike clause or the addition of the
proposed article xxxill.
1064
AMCAR DIVISION,
In the 1975 contract negotiations, the Union proposed
demands under date of March 4, 1975, including the
addition of a new article xxxlx stating as follows: "It shall
not be a violation of the Agreement and it shall not be cause
for discharge or disciplinary action in the event an employee
refuses to go through or work behind a picket line at the
Plant." In the discussions concerning this proposal, the
Company inquired about the meaning and effect of the
proposal and was informed that it was specifically directed
to the picket lines of other labor organizations than those
comprising the Union, whether representing Company or
other employees. The proposed article was not included in
the 1975-78 contract.
The 1975-78 contract went into effect on September 22,
1975. On that same date, IBEW Local I established a picket
line at the AMCAR plant on behalf of maintenance
electrician employees, and directed to supporting IBEW
Local 's contract demands for an agreement covering
maintenance electricians. Some employees of the Company
represented by the Union did not report for work as
scheduled and, although urged by the Union to report for
work, continued to remain away from work. The Company
applied for and obtained a temporary restraining order and
order to show cause directed against the Unions, which was
issued by Judge Meredith of the United States District Court
for the Eastern District of Missouri at 5 p.m. on September
22, 1975. The order, in sum, enjoined the Union from
inducing unit employees to engage in work stoppages,
directed the parties to submit the matter to contractual
arbitration, and set the proceeding down for hearing on
October 2, 1975. The court premised its order, in part upon
a finding that the work stoppages "derive[d] from grievances
which all parties are contractually obligated to resolve in
accordance with the grievance and arbitration procedure set
out in the collective-bargaining contract between Plaintiff
and Defendant Local Unions." The unit employees there-
upon returned to work. However, the matter was never
submitted to arbitration. On October 2, the return day of the
order to show cause, the Company and the Union executed a
settlement agreement in the district court proceeding. The
parties agreed in sum, that the complaint be dismissed and
the temporary restraining order dissolved, that there would
be "no concerted walkout or other concerted activities" in
the production and maintenance unit with respect to the
current dispute between the Company and the electrical
maintenance unit employees, and that the Union waived its
right to arbitrate the issue of their asserted right to honor the
IBEW Local I picket line. The settlement agreement
specifically provided that "[t]his waiver shall not apply to
any future labor dispute between Plaintiff and Defendants."
In their 1975 contract negotiations, the Company and the
Union negotiated and agreed upon a "no-fault" absenteeism
and tardiness control program for inclusion in the contract
(art. xxI). Both the Company and the Union recognized that
there was a serious attendance problem at the AMCAR
plant. The Company was particularly concerned with
absences on Fridays, Mondays, and days preceeding and
following holidays. Both parties were dissatisfied with the
existing contract provisions, which did little to set standards
for disciplinary action. The Company wanted some discre-
tion in dealing with the problem, e.g. to accord greater
ACF INDUSTRIES 1065
latitude to more senior employees. However, the Union
preferred a more "mechanical" approach, under which all
unit employees would be subject to the same, defined
standard. The Union's approach prevailed. Every absence,
i.e., "[a] consecutive period of time wherein an employee
does not report for work or reports more than 3 hours after
his scheduled starting time," was classified as either excused
or not excused. Excused absences were limited to those for
funeral leave, jury service, service as a witness, and personal
leave of absence with the Company's prior approval. All
other absences, without regard to reason, were classified as
unexecused. The 1975 contract further provided that the
Company could "counsel" i.e., give oral warning to an
employee who incurred five or more unexcused absences or
seven or more incidents of tardiness in a 6-month period.
Thereafter, the Company could issue three successive warn-
ings for unexcused absence or tardiness within 6 months of
counselling. A fourth such infraction could result in suspen-
sion subject to discharge. During the 1978 contract negotia-
tions, the Union urged that employees were not "getting the
message," and proposed temporary suspension as a step
prior to discharge. The Company accepted the proposal, and
the contract was amended to provide that an employee with
three written warnings within 6 months of counselling, ( luld
be suspended for I week for a fourth unexcused absence or
incident of tardiness. In the interim, in 1976, the absence
control program had been the subject of a contractual
arbitration proceeding. The Union grieved the discharge of
an employee who had allegedly been terminated for exces-
sive absenteeism pursuant to the contract. The Union
contended that absences for legitimate illnesses or injury are
"excused" absences under the contract, that the employee
was absent for such reason, and that therefore his discharge
was not warranted. The arbitrator disagreed. The arbitrator
held, in sum, that there were no excused absences other than
those specifically listed in the contract, and that if he were to
rule otherwise he would be improperly adding to the terms
of the contract. Therefore the arbitrator concluded that the
employee was discharged for just and proper cause. No party
sought review of the arbitrator's opinion and award, and his
decision stands as the law of the contract. The arbitrator was
not presented with the question of whether a refusal to cross
a picket line, or other absence for a reason arguably
protected by Section 7 of the Act could be used as a basis for
discipline under the contract, nor did he discuss that
question. Although in the 1975 negotiations, the parties
talked at great length about reasons which might or might
not constitute the basis for excused absences, there was no
discussion of absence due to strikes. The no-strike clause and
the Union's proposed new article xxxlv (see supra ), were
taken up separately from article xxi dealing with absentee-
ism and tardiness. In administering the absenteeism and
tardiness program, the Company maintains a card file on
every unit employee which records every absence as either
excused or unexcused, together with a record of counseling,
warnings, and other discipline imposed if any. No record is
kept of the reason for any absence.
1066 DECISIONS OF NATIONAL
B. The 1978 IBEW Strike
Commencing on October 20, 1978,2 IBEW Local 1, as
representative of the Company's maintenance electrician
employees, established and maintained a picket line at the
AMCAR plant in support of demands for a new collective-
bargaining agreement, the former agreement having expired
at midnight on October 19. IBEW Local 1 maintained its
picket line from October 20 through November 14. On
October 19, in anticipation of the strike and picket line, the
AMCAR Division director of labor relations, Robert Allen,
proposed to Carmen Lodge 365 business agent James
Johnson, who was the Union's chief negotiator in the 1978
contract negotiations, that the Company and the Union send
the following as a joint notice to the AMCAR plant
employees:
NOTICE
TO: ALL ST. LOUIS PLANT EMPLOYEES
The collective bargaining unit agreement between the
Company and the I.B.E.W. covering the maintenance
electricians terminates tonight at twelve midnight. At
this time a new agreement has not yet been reached.
he parties are still meeting. However, if an agreement
is not reached the .B.E.W. may post pickets at the
plant after twelve midnight tonight.
Nevertheless all employees other than those mainte-
nance electricians affected are expected to report to
their jobs as scheduled. All other employees have an
agreement in affect which contains a no-strike clause.
Any employee who refuses to report to his job may be
considered to be in violation of the no-strike clause and
will be counted as absent.
Johnson said that he agreed that the production and
maintenance employees should cross the picket line, but that
he would not sign the notice unless he heard from the
Union's counsel, although he (Johnson) thought the notice
was accurate. Allen then took it upon himself to contact the
Union's counsel who stated that he also thought that the
production and maintenance employees should cross the
picket line, but that he would not advise the Union either
way on whether they should sign the notice. Allen next tried
to contact Johnson again, but was unable to do so before the
end of the first shift at the plant, i.e., the latest time by which
notice could be given to the first shift employees prior to the
itrike. The Company then proceeded to unilaterally distrib-
ute the above notice to all of the plant employees, over the
signature of plant manager W.D. Harrison. The next day,
i.e. the first day of the strike, Allen sent a telegram to the
Union in which he protested that the maintenance electri-
-ian employees were engaging in mass picketing which
prevented some other employees from reporting to work.
Allen restated the Company's position that the no-strike
:lause of their contract precluded the production and
maintenance unit employees from honoring the picket line,
ind he demanded that the Union "take any and all steps
reasonable and necessary to insure that the employees of the
LABOR RELATIONS BOARD
Company represented by said jointly certified unions report
for and perform work at the Company's premises, and that
said Article viii not be violated." That same day (October
20) business agent Johnson told Allen that as far as he was
concerned, the employees should cross the picket line.
As of October 20, there were about 1400 production and
maintenance employees employed at the AMCAR plant.
The parties stipulated in evidence the total attendance and
absence figures at the plant for each day during the period
from September 5, 1978, through January 19, 1979 (except
for a few days in December and January when complete
figures were not available), and a tabulation of total absences
for production and maintenance unit employees during each
day of the picketing. The difference between the figures for
total absences and those for unit employees indicates that
there were 35 maintenance electrician employees on strike.
Prior to the strike, more than 10 percent of the plant
complement was usually absent on any work day, although
the figure sometimes ran much higher. In late September, for
no explained reason, absences were unusually high. On
Monday, September 25, 448 employees, constituting over
one-third of the work force, were absent, and between 300
and 400 employees were absent on each of the next 3 days.
As always, absences tended to run higher on Fridays and
Mondays. On Friday, October 20, the first day of the IBEW
picketing, 299 production and maintenance unit employees
were absent from work. The figure was high, but not a
record high. Thereafter, the number of absences declined. By
October 30 the absence rate was running below the norm
which had prevailed immediately before strike, and this
situation continued until the end of the picketing. On
November 14, the last day of picketing, 135 plant employees
were absent. The next day, 136 employees were absent,
although the maintenance electricians were back at work.
Assuming that absences among the maintenance electricians
ran in about the same proportion as that among the union-
represented employees, the stipulated figures would indicate
that there were more absences among the latter employees
on November 15 and for the next 3 working days than there
were during the period of picketing from October 25
through November 14; i.e., during all but the first 3 days of
picketing.
It is undisputed that no employee who was absent during
the period from October 20 through November 14, request-
ed that such absence be excused because of the picket line.
Indeed, the evidence fails to indicate that any employee even
informed the Company that the employee was or would be
absent because of the picketing nor does the evidence
indicate that the Company had knowledge that any union-
represented employee declined to report for work becauseof
a decision to honor the picket line. The Company stipulated
that had such excuse been requested, the Company would
have denied it. The evidence further fails to indicate that the
Union induced or encouraged unit employees to refuse to
cross the picket line, or instructed or attempted to persuade
them to cross the picket line and go to work. The inference is
warranted and I so find for the purpose of this proceeding,
that there was no communication between the Union and
the production and maintenance unit employees concerning
'All dates referred to in this section are in 1978 unless otherwise indicated.
AMCAR DIVISION, ACF INDUSTRIES
whether they should cross the picket line. However, as will
be discussed, several employees testified, in sum, that they
made individual decisions not to work behind the picket line.
All absences of employees other than maintenance electri-
cian employees represented by IBEW Local I that occurred
in the period October 20 through November 14, 1978, were
charged by the Company as absences under its absence
control program and remain so chargeable, unless excused
prior to their absences or for reasons of funeral leave, jury
service or service as a witness, or personal leave of absence
with previous company approval. The Company stipulated
that under its absence control program, absences of union
represented employees, if occasioned by sympathy for an
observance of the IBEW Local I picket line, would be
chargeable as absences and not excused; and that insofar as
any such employee would testify that an absence during the
period October 30 through November 14, 1978, was occa-
sioned by sympathy for or respect of the IBEW Local I
picket line, the Company's charging of the absence as an
absence under its program would not change and any such
absences charged on employee records would not be ex-
punged. The Company further stipulated that such charging
of absences is based upon its position that absenteeism from
work, if in sympathy for or respect of another union's picket
line, does not fall within the bargained exceptions to its
absence control program, and further is a violation of the
contractual no-strike clause. The General Counsel and the
Company further stipulated that 20 employees have received
5-day suspensions for absenteeism incurred since October
20, 1978, and were charged with at least one absence during
the period October 20 through November 14, 1978; and that
other employees who incurred absences, such as charging
party Ronald Buckingham, during the period October 20
through November 14, 1978, and who accumulate the
requisite number under the program will be suspended and
then will be discharged if they continue to incur absences
under the program (which could occur at any time until
September 1979). The General Counsel waived identification
of the employees in question at this stage of the case.
Although some grievances have been filed with respect to
the counting of absences during the period of October 20
through November 14, none were based on alleged honoring
of the IBEW picket line; nor was any grievance filed with
respect to the Company's notice of October 19 or its
telegram to the Union.
The Company's records indicate that Ronald Buckingham
was charged with an unexcused absence on October 20 and
23. Buckingham, a Carmen steward, testified that he came
to work on each day, saw the picket line at all gates, and
therefore did not go in to work. He testified that other
employees, including three named in the complaint (Politte,
Evans, and Baldridge), also did not cross the picket line.
Buckingham crossed the picket line and returned to work on
October 24. On October 20 he went into the plant to pick up
his paycheck, and on October 23 he went into the plant to
serve a copy of his unfair labor practice charge. Amel
Baldridge, Jr., a member of Carmen Lodge 365, was charged
' In C d C Plywood. the Supreme Court cited its earlier decision in Mostro
Plastics Corp. and French-American Reeds Mfg. Ca. Inc. v. N.LR.B. 350
U.S. 270 (1956), as recognition of the Board's authority to construe the scope
of a "no strike" clause in a collective-bargaining contract, i.e., the same type
of question as that presented in the present case.
with an unexcused absence on October 20 and 23. He
testified that he and other employees did not cross the picket
line. He testified that he did not cross the picket line because
he was afraid he would get hurt, and because he honored the
picket line. He went with Buckingham and other employees
to file the unfair labor practice charge, and returned to work
on October 24. The Company's records indicate that Marlen
Evans had an unexcused absence on October 20 (not
October 23). Evans testified that on both dates he came to
the plant, saw the pickets, and after talking to other
employees decided not to cross the picket line because to do
so would compromise his principles. The Company's records
indicate that Richard Politte had an unexcused absence on
October 20, 23, and 24. Politte testified that he did not go
into work on those days because of the picket line, but that
he returned to work thereafter. Monte Mizel, the remaining
employee named in the complaint, was charged with
unexcused absences on October 20 and 26 and November 1
and 10. He was called as a witness for the General Counsel,
but failed to appear at the hearing. Company counsel stated
that Mizel was in jail. No witness identified Mizel as having
refused to cross the picket line. Ronnie Gene Patterson, a
member of Carmen Lodge 365, who was not named in the
complaint, testified that on October 20 and 23 he exercised
his rights as a union member and did not cross the picket
line, but returned to work on October 24. Finally, Edward
Joe Evans, also not named in the complaint, testified that he
did not report for work on October 20 and 23 because he did
not believe that it was right to cross the picket line. Evans
also returned to work on October 24. 1 credit the uncontro-
verted testimony of the employee witnesses, although in light
of the Company's stipulated records, I find that Marlen
Evans was charged with an unexcused absence only on
October 20. The significance of the employees' testimony,
and of Mizel's failure to testify, will be discussed, infra, to
the extent necessary for a Decision in this case.
C. Analysis and Concluding Findings
The threshold question presented in this case, and one
which is posed by the Company's affirmative contentions, is
whether the allegations of the complaint should be deferred
to contractual grievance and arbitration proceedings. I find
that deferral would be inappropriate, and that the allegations
of the complaint are properly before the Board for disposi-
tion in the context of an unfair labor practice proceeding.
The Board, in the exercise of its jurisdiction to hear and
decide unfair labor practice cases, may properly resolve
questions of contract interpretation, regardless of whether
such questions could have been the subject of private
arbitration or litigation in the courts. N.L.R.B. v. Joseph T.
Strong d/b/a Strong Roofing & Insulating Co, 393 U.S. 357
(1969); N.LR.B. v. C & C Plywood Corp.. 385 U.S. 421
(1967).' The Board, under the Collyer' doctrine as modified
in General American Transportation Corporation, 228 NLRB
808 (1977), has exercised discretion to decline to consider
the merits of certain types of cases which are subject to
I Collyer Insulated Wire. A Gulf d Western Systems Ca. 192 NLRB 837
(1971).
1067
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contractual arbitration, and instead, to defer the cases to
resolution by such arbitration. However, by reason of
majority consensus on the results in General American and
the companion case of Roy Robinson, Inc. d/b/a Roy
Robinson Chevrolet, 228 NLRB 828 (1977), the Board will
exercise such discretion only in cases involving alleged
violations of Section 8(a)(5) or Section 8(b)(3) of the Act,
and not in cases, as here, involving alleged violations of
Section 8(a)(1) or (3) or Section 8(b)(1)(A) or (2). Moreover,
apart from the question of whether the present case can be
resolved through contractual arbitration, there are two
additional reasons why deferral is not here appropriate.
First, the present charge was filed by an individual employ-
ee, and the case itself presents the question of whether the
Union is aligned in interest or position with that of the
individual alleged discriminatees. Therefore, even under the
Collyer doctrine as it existed prior to General American,
deferral would not be appropriate. Jacobs Transfer, Inc., 201
NLRB 210, fn. 2 (1973). Second, the present case involves
an issue of whether the Union has waived, for the employees
which it represents, an important right which is covered by
Section 7 of the Act. The case involves not simply questions
of contract interpretation, but also questions of statutory
interpretation, which should not be left to private arbitra-
tion. See, Gates Rubber, Inc., 199 NLRB 739, 748 (1972),
enfd. 493 F.2d 249 (6th Cir. 1974). Indeed, as indicated in
the cases which will be discussed herein, the Board has
consistently asserted its jurisdiction to decide cases involving
consideration of the scope of no-strike contract clauses. See,
e.g. International Union of Operating Engineers, Local Union
18, AFL-CIO (Davis-McKee, Inc.), 238 NLRB 652, fn. 10
(1978). Therefore, it is unnecessary for me to determine
whether the allegations of the complaint are arbitrable, and I
shall proceed to consider the present case on its merits.'
I shall first address myself to the allegation that the
Company violated Section 8(a)(1) by its October 19 notice to
employees, in which the Company notified the production
and maintenance unit employees that they would be in
violation of the no-strike clause and would be counted as
absent (which absence could form the basis for future
disciplinary action) if they refused to cross the IBEW picket
line or otherwise failed to report for work. The General
Counsel contends that the Company thereby interfered with,
restrained, and coerced its emmployees in the exercise of
rights protected by Section 7 of the Act. The allegation
presents the basic question which is common to all of the
alleged violations in this case, in sum, whether there was a
' To the extent that N.L.R.B. v. Keller-Crescent a Division of Mosler, 538
F.2d 1291 (7th Cir. 1976), suggests otherwise, the court's view is inconsistent
with recent Board decisions which I am bound to follow. Keller-Crescent
(discussed further, infra ) involved a contract which contained both a no-
strike clause and a picket line clause. The Board, finding that neither clause
prescribed sympathy strikes in support of strikes by other unions, found that
the employer violated Sec. 8(a)( ) by suspending employees who honored the
other union's picket line. The court of appeals denied enforcement of the
Board's order. The court concluded that the matter was arbitrable under the
picket line clause, and that the employer was privileged to suspend the
employees because the Union breached its contract by stopping work rather
than submitting the matter to arbitration. The court distinguished its earlier
decisions in Gary-Hobart Water Corporation. 210 NLRB 742 (1974), enfd. 511
F.2d 284 (7th Cir. 1975), cert. denied, 423 U.S. 925, and Hyster Company v.
Independent Towing and Lifting Machine Association, et al., 519 F.2d 89 (7th
Cir. 1975). cert. denied 428 U.S. 910 (1976), on the ground that those
decisions did not contain a picket line clause, The present contract, like those
waiver of statutory rights, without the need to inquire into
whether, as with respect to the allegations of discriminatory
treatment of individual employees, other elements of an
unfair labor practice are present.
The pertinent principles of law may be stated succinctly,
but their application has generated considerable differences
of opinion within the Board during the past few years. As a
general rule, "the right to strike, including the right to
engage in sympathy strikes or to refuse to cross another
union's picket line" is a right guaranteed by the Act. The
right "may be waived by appropriate provisions in a
collective-bargaining agreement." However, as with other
statutory rights, "such waivers will not be readily inferred,
and there must be a clear and unmistakable showing that
waiver occurred." Gary-Hobart Water Corporation, 210
NLRB 742, 744-745, enfd. 511 F.2d 284, cert. denied 423
U.S. 925. "Contractual waiver of the right to honor [other
unions' ] picket lines will only be found if such an intent is
embodied expressly in the parties' agreement or clearly
evident from the relevant bargaining history." Daniel Con-
struction Company, Inc., 239 NLRB 1335 (1979); Davis-
McKee, supra. The Board holds that no-strike clauses which
proscribe work stoppages or strikes, but do not expressly
refer to sympathy strikes or refusals to cross another union's
picket line, cannot, standing alone, be deemed as an express
waiver of the statutorily protected right to cross another
union's picket line. The rationale for this view, in sum, is
that ordinarily no-strike clauses are a quid pro quo for
binding arbitration of disputes between the parties. There-
fore if the dispute is arbitrable, it is presumed that the no-
strike agrement prohibits employees from engaging in work
stoppages in furtherance of that dispute. However, as a
sympathy strike involves a dispute or disputes which are not
subject to arbitration between the parties to the no-strike
agreement (e.g., as in the present case, a dispute between the
Company and IBEW Local I over the terms of a new
contract covering maintenance electricians), the no-strike
agreement will not, absent other evidence, be deemed as a
waiver of the right of unit employees to honor the other
unit's picket line. Although this rationale has engendered
considerable controversy both in the Board and the courts
since the Supreme Court's decision in Buffalo Forge Co. v.
United Steelworkers of America, supra. I am bound by the
test adhered to by the Board in Daniel Construction
Company and Davis-McKee, and have applied that standard
to the facts of the present case.
in Gary Hobart and Hyster. also does not contain a picket line clause.
However the contract does contain a no-fault absenteeism program which has
been invoked by the Company as further alleged justification for its actions. It
is possible that the present case could have been submitted to arbitration
under the absenteeism program (art. xxl of the contract). Even before the
absenteeism program took effect, a Federal district court was at least
preliminarily of the view that refusals to cross an IBEW picket line were
subject to arbitration, and the parties were temporarily under an order to
submit the matter to arbitration. In light of the subsequen Supreme Court
decision in Buffalo Forge Co. v. United Steelworkers ofAmerica. AFL-CIO, et
al., 428 U.S. 397 (1976), it would appear that the district court erred in
enjoining the strike, but not in directing the parties to submit to arbitration.
See Davis-McKee, Inc., supra.
' See Davis-McKee. Inc., supra: N.L.R.B. v. Keller-Crescent Co.. supra: Iowa
Beef Processors, Inc.. v. Amalgamated Meat Cutters d Butcher Workmen of
North America, et al., 597 F.2d 1138 (8th Cir. 1979).
1068
AMCAR DIVISION, ACF INDUSTRIES
The Company's October 19 notice referred to conduct
which is protected by Section 7 of the Act, i.e., employee
refusals to cross the IBEW picket line. By informing union-
represented employees that they would be counted absent if
they refused to cross the picket line, the Company impliedly
threatened the employees with possible disciplinary action
based on their failure to report for work. Therefore, the
notice violated Section 8(a)(1) of the Act, unless the Union,
through collective bargaining, waived the right of produc-
tion and maintenance employees to cross that picket line.
The no-strike agreement in the Union's contract does not
expressly refer to sympathy strikes or refusals to cross other
unions' picket lines. Therefore, waiver cannot be found on
the basis of the express language of the no-strike clause. The
remaining question is whether waiver is "clearly evident
from the relevant bargaining history." For the reasons set
forth herein, I find upon review of the evidence in this case
that the Company and the Union knowingly and clearly
interpreted their collective-bargaining contracts as prohibit-
ing sympathy strikes or refusals to cross picket lines at the
AMCAR plant, and therefore, that the Union waived the
right of production and maintenance unit employees to
refuse to cross the IBEW picket line.
Most of the relevant bargaining history was stipulated,
and all of it is uncontroverted. That history indicates that
since 1972 the Company has consistently taken the position
that the no-strike clause prohibits sympathy strikes or
refusals to cross picket lines at the AMCAR plant. The
evidence further indicates that in the face of repeated
assertions of the Company's position, the Union progressed
from initial resistance, to unsuccessful attempts to change
the contract, and eventually to acquisence in and agreement
with the Company's position. By October 20, 1978, the
Company and the Union were in complete agreement as to
the meaning of their contract. Standing alone, any one factor
might have been insufficient to meet the stringent standard
for waiver. However, when considered in its entirety, the
bargaining history leaves room for only one reasonable
conclusion; namely, that by October 20, 1978, the Union,
through collective bargaining, had waived the right of
production and maintenance unit employees to engage in
sympathy work stoppages at the AMCAR plant.
The General Counsel correctly points out that the 1969
dispute did not involve a sympathy strike in the conventional
sense. Rather the dispute focused on the scope of the
bargaining unit, and whether the Union's constitutent labor
organizations were fully bound as to all matters contained in
the contract which had been negotiated between the Compa-
ny and the Union. The 1969 settlement might have been
fairly construed as a resolution limited only to these
questions, but for the fact that in the next contract
negotiations in 1972, the Company insisted, in sum, that by
reason of their adjustment of the 1969 dispute, the Union
had contractually waived the employees' right to engage in
sympathy work stoppages. The Union disagreed, asserting
that the 1969 agreement was good only for 1969. However,
the Union did not simply stand on this position. The Union
proposed modifications in the no-strike clause, and also
' The temporary restraining order and order to show cause indicates that
the Union received notice of the Company's application, but that only the
Company appeared in court. I do not agree with the General Counsel's
proposed a picket line clause (art. xxxill), which would
have permitted the production and maintenance employees
to honor the picket lines of any of the constituent labor
organizations or of any other labor organization having a
contract with the Company, without thereby violating the
Union's contract. However, the parties negotiated their 1972
contract without any change in the no-strike clause and
without the addition of the proposed article xxxil. Standing
alone, the Union's failure to obtain the proposed contractual
changes did not clearly establish the validity of the Compa-
ny's interpretation of their no-strike agreement, particularly
in view of the fact that the Union had vocally differed with
that interpretation. However, in the 1975 negotiations the
Union again proposed a picket line clause. In 1975, as in
1972, the Company did not propose any changes, additions,
or modifications to the contractual no-strike agreement.
Rather the Company adhered to its position that the no-
strike clause prohibited sympathy strikes and refusals to
cross picket lines. Only the Union proposed to change the
contract. This time the Union submitted a more modest
proposal. The clause provided that "it shall not be a
violation of the Agreement and it shall not be cause for
discharge or disciplinary action in the event an employee
refuses to go through or work behind a picket line at the
plant." When questioned as to the meaning of this proposal,
the Union stated that it was specifically directed to the
picket lines of other labor organizations than those compris-
ing the Union. Thus, under the Union's own interpretation
of its proposal, the new article xxxlv would not have
immunized refusals to cross a picket line established by
IBEW Local I or any of the other constituent labor
organizations. As IBEW was the only one of the constituent
labor organizations which represented nonunit employees at
the plant, the Union must have had the electrical mainte-
nance unit in mind. Indeed the sequence of developments in
1975 indicates that at the very time the Union was
negotiating and executing its contract, IBEW Local 1
anticipated a strike over the maintenance electricians'
contract demands. In view of the Company's own unequivo-
cal interpretation of the no-strike clause, the inference is
warranted that the Union had come around to accept the
Company's interpretation of the contract; and moreover,
was no longer interested in a contract which would have
immunized from discharge or disciplinary action, refusals by
unit employees to cross a maintenance electricians' picket
line. Again, the facts at this point, although stronger, fell
short of a clear and unambiguous waiver. However, no
sooner had the parties executed their 1975 contract than
they were confronted with precisely that situation; namely,
refusals by unit employees to cross a picket line established
by the IBEW Local I maintenance electricians. This time
the Union urged the unit employees to report for work, and
thereby tended to confirm the position which it had
evidently taken at the bargaining table. The Company
promptly obtained a temporary restraining order which, so
far as is indicated by the present record, was not even
opposed by the Union.' If the Union questioned the
Company's unterpretation of the contract, or had any
suggestion (Br., p.8) that the district court was unaware that the case involved
a sympathy strike. The district court inserted a proviso in the restraining
order which limited its proscription to inducement of work stoppages "in the
(Continued)
1069
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interest in testing that interpretation, the district court order
provided a perfect opportunity, for the order placed the
parties under a mandate to arbitrate the matter. Instead, the
Union promptly entered into a settlement agreement by
which it promised that there would be no further work
stoppage, and waived any right to arbitrate the issue of its
"asserted right to honor the [IBEW Local 1] picket line."
The waiver expressly did not apply "to any furture labor
dispute" between the Company and the Union. In fact, the
Union did nothing to assert such right. The Union may have
wished to preserve a position that the no-strike clause did
not apply to other situations. However, if the Union adhered
to the view that unit employees could honor maintenance
electrician picket lines, then it is difficult to see why the
Union would avoid the arbitration directed by the court and
choose instead to go through the same problem again at a
future date.
1975 was a significant year in another respect. In the same
negotiations in which it unsuccessfully proposed a limited
picket line clause, the Union successfully proposed a no-fault
absenteeism program which, with limited exceptions, ex-
cluded reasons as a consideration in recording absences for
possible disciplinary action. The no-strike and picket line
clauses were taken up separately from the absentee program.
However, the absentee program, as incorporated into the
contract, is inconsistent with an interpretation that the
production and maintenance employees were free to cross
other union's picket lines at the plant without being counted
absent. Under the absentee program, the Company had no
reason to, and in fact did not, record the reason for
unexcused absences. Consequently the Company had no way
of accurately learning and recording whether employees
were absent because they wished to honor a picket line, or
for some other reason. The Union was aware of an
impending strike by the maintenance electricians, but it
sought no clarification of the absentee program in this
regard. Even after an arbitrator ruled that there were no
excused absences other than those specifically listed in the
contract, the Union, in its 1978 contract negotiations, sought
no such clarification. If the Union believed that notwith-
standing the no-strike clause, unit employees could honor
the 1978 IBEW picket line without being charged with an
unexcused absence, then it may reasonably be inferred that
the Union would have advised employees who wished to
honor the picket line to notify the Company of the reason for
their absence to preserve the rights of the employees in an
arbitration or litigation. However, the Union did not do this.
Instead, the Union by its chief spokesman told the Company
that the employees should cross the picket line, and that the
Company's notice "was accurate." As indicated, the notice
stated that "any employee who refuses to report to his job
may be considered to be in violation of the no-strike clause
and may be counted as absent." The Union stopped short of
issuing a joint declaration to the employees, or of otherwise
notifying the employees of its position.' However, the Union
took no action in contradiction of that position. The Union
did not file any grievances in the matter, nor did it file or
production and maintenance bargaining unit." Therefore it is evident that the
district court was made aware of the situation at the plant. although the
complaint did not spell out the reason for the work stoppage.
In failing to give such notice, the Union may well have failed in its duty to
inform the production and maintenance employees of their rights and
obligations under the contract.
join in the present unfair labor practice charge. Instead, the
Union's representative sat in silence at the rear of the
hearing room, while company official Allen testified con-
cerning the Union's stated position.'
I recognize that in recent Board decisions relied upon by
the General Counsel, the Board has declined to find a waiver
where such waiver was not specifically spelled out in the
contract language. However, those cases are distinguishable
not only upon an examination of their facts, but upon the
very distinctions which the Board made in those cases. Thus,
in Gary-Hobart Water Corporation. supra, the Board point-
edly observed that it was the employer, and not the union
therein, which sought to change the language of the existing
no-strike agreement. In this regard, the Board distinguished
N.L.R.B. v. Rockaway News Supply Co. Inc., 345 U.S. 71,
79-80 (1953), and The Hearst Corporation, News American
Division, 161 NLRB 1405 (1966), affd. sub nom The News
Union of Baltimore v. N.L.R.B., 393 F.2d 673 (D.C. 1968),
wherein "the Court and Board respectively found the no-
strike provisions should be broadly construed. "(210 NLRB
at 746). In Keller-Crescent Company, a Division of Mosler,
217 NLRB 685 (1975), enforcement denied 538 F.2d 1291,
7th Cir. the contract at issue contained a no-strike clause
and a separate clause which provided that "no employee
covered by this contract shall be required to cross a picket
line established because of a strike by or lockout of, any
other subordinate Union of the International Typographical
Union, when such strike is authorized by, or such lockout is
recognized by, the ITU." The Administrative Law Judge,
applying the maxim inclusio unius est exclusio alterius. found
that the language of the ITU picket line clause gave rise to
the inference that employees might be required to cross a
picket line established by any union other than ITU. The
Board, in rejecting this finding, stated: "We note and find
significant, the fact at no time during [contract negotiations]
did [the employer] ever propose any language which sought
to limit [ITU, the signatory union's] statutory right to honor
picket lines or engage in a sympathy strike. . .. Nor for
that matter did the [employer] ever so much as take the
position that it viewed that longstanding language of [the
ITU picket line clause] as prohibiting the [ITU's] members
from honoring another union's picket line." (217 NLRB at
687-689.) In the present case, the Company did not propose
any changes in the no-strike clause, but it consistently took
the position that the clause prohibited sympathy work
stoppages. Therefore, the Union's past unsuccessful propos-
als to amend the contract take on a significance which they
might otherwise not have. In Keller Cresent, the Board
further found that "at no time did [ITU] ever state to [the
employer] that the strike action was in violation of their
contract, nor did they at any time specifically urge the
membership to cease their strike and cross the Presmen's
picket line" (id. at 690). In the present case, in 1975 the
Union urged the unit employees to report to work, and in
1978 stated unequivocally that it agreed with the Company's
interpretation of the contract. See also Iowa Beef Processors,
supra. In Keller-Crescent, the Board also found that ITU's
' Although union steward Ronald Buckingham declined to cross the picket
line and also file the present charge, his testimony indicates that he acted on
his own initiative (as did the other employees), and not in his capacity as
steward. The charge identifies Buckingham only as "an individual."
1070
AMCAR DIVISION, ACF INDUSTRIES
proposal to broaden the language of the picket line clause
was never discussed in the context of the no-strike clause. In
the present case, such matters were discussed in the same
context, at least in 1972 when the Company stated its
interpretation of the existing contract. In Keller-Crescent,
the Board further found that unlike the situation in the
Hearst case, supra, the ITU proposal did not contain the
language "It shall not be a violation of this agreement, ....
which choice of language strongly indicates that the Team-
sters negotiators [in Hearst I understood that absent this
proposed provision the agreement. more specifically the no-
strike pledge contained therein, prohibited the refusal to
cross another union's picket line or engage in a sympathy
strike" (217 NLRB at 692, emphasis in original). In the
present case, the Union's unsuccessful 1975 proposal con-
tained even stronger language, viz., It shall not be a violation
of this agreement and it shall not be a causefor discharge or
disciplinary action in the event an employee refuses to go
through or work behind a picket line at the plant."
Moreover, the no-strike clause in the present case and in
Hearst, unlike the clause in Keller-Crescent, referred to work
stoppages as well as strikes. The Board described the Hearst
clause as "board no-strike pledge language" (217 NLRB at
692). Indeed, the Board's analysis of the Hearst decision in
Keller-Crescent is equally applicable to the facts of the
present case."' Indeed, if waiver cannot be inferred on the
facts of the present case, then it is difficult to see how waiver
could be found on the basis of anything short of an express
contractual restriction on sympathy strikes or refusals to
cross other union's picket lines.
As the Union waived the right of production and
maintenance employees to honor the IBEW Local I picket
line, it follows that the Company acted lawfully, and
therefore that the complaint should be dismissed in its
entirety. The Hearst Corporation, News American Division,
161 NLRB at 1406, fn. 3. Assuming arguendo, that the right
was not waived, I would nevertheless be constrained to
recommend dismissal of all of the allegations of the
complaint with respect to alleged discrimination against
individual employees, on the ground that the Company had
no knowledge or reason to believe that any alleged discrimi-
natee, whether or not named in the complaint, was engaged
in union or other concerted activity protected by the Act. In
order to establish that an employer violated the Act by
discriminating against an employee, it must be shown that
the employer knew or acted in the belief that the employee
was engaged in protected activity. N.LR.B. v. Burnup d
a' Kellogg Company. 189 NLRB 948 (1971). enfd. 457 F2d 519 (6th Cir.
1972), cited as authority in Keller-Crescent. is also distinguishable on its facts
from the present case. In Kellogg. unlike the present case, the no-strike clause
at issue contained language which specifically excluded from its proscription,
refusals by individual employees to cross another union's picket line.
Moreover, the Board found that the parties so interpreted their contract.
Davis-McKee. Inc., supra. and Daniel Construction Company. Inc.. supra.
presented the question of whether a no-strike clause which contains no
reference to sympathy strikes or refusals to cross another union's picket line,
should in the absence of extrinsic evidence be construed as a prohibition on
such conduct. C. K. Smith d Co.. Inc.. 227 NLRB 1061 (1977), enfd. 569 F.2d
162 (Ist Cir., 1977), involved a sympathy strike in support of a strike by
employees in another unit who were striking in protest of the employer's
Sims, Inc., 379 U.S. 21, 23 (1964). In the present case, the
evidence indicates that the Company was never informed or
otherwise learned that any union-represented employee was
absent from work during the IBEW strike because the
employee chose to honor the IBEW picket line, nor do the
circumstances suggest a likelihood that the Company ob-
tained such knowledge. The overwhelming majority of
union-represented employees reported for work, the strike
began around a weekend, when absenteeism was usually
higher than normal, the Union told the Company that the
unit employees should report to work, and the Company
maintained no record of the reasons for unexcused absences.
It may be that in view of the Company's October 19 notice,
employees who wished to honor the picket line saw no
purpose in so informing the Company. Nevertheless in the
absence of employer knowledge of the reason for their
absence, there can be no finding of discriminatory conduct.
An employer violates the Act by threatening employees with
discharge or other discipline because of protected activity,
but it does not follow that thereafter, every discharge must
be considered unlawful, even in the absence of employer
knowledge or belief that the discharged employee was
engaged in protected activity. I recognize that in appropriate
cases, the identity of individual discriminatees may be left to
the compliance stage of the proceeding. However, this policy
does not relieve General Counsel of the burden of making
out a prima facie case as to the elements of the alleged unfair
labor practices. See, Local No. 851, International Longshore-
men's Association. AFL-CIO (West Gulf Martime Associa-
tion). 194 NLRB 1027 (1972). Here, General Counsel
stipulated that no employee requested that absence be
excused because of the IBEW picket line, and no evidence
was presented that the Company had knowledge that any
employee was absent for that reason. Therefore, the General
Counsel failed to make out a prima facie case as to
paragraph 7 of the complaint.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union and its constituent Unions are each labor
organizations within the meaning of Section 2(5) of the Act.
3. The Company has not engaged in the unfair labor
practices alleged in the complaint.
[Recommended Order for dismissal omitted from publica-
tion.]
unfair labor practices. The Board found that the signatory union did not
under its no-strike agreement, waive its right to strike in protest of employer
unfair labor practices. (227 NLRB at 1073). In essence, the case turned on an
application of the doctrine of Mastrro Plastics Corp.. et al. v. N.LR.B.. 350
U.S. 270, that a no-strike clause will not be presumed to operate as a waiver of
the right to engage in a strike in protest of the employer's unfair labor
practices. (569 F.2d at 167). The remaining cases relied upon by the General
Counsel involved questions of whether a Union had waived its right to obtain
certain information relevant to collective bargaining, or had waived enforce-
ment of a union-security clause. None of the cases relied upon by the General
Counsel involved invocation by the employer of a "no-fault" absenteeism
provision, such as that in the present case.
1071
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union and its constituent Unions are each labor
organizations within the meaning of Section 2(5) of the Act. ti,
3. The Company has not engaged in the unfair labor
practices alleged in the complaint.
[Recommended Order for dismissal omitted from publica-
1072