Atlas Plastering, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1987

285 N.L.R.B. 185 (N.L.R.B. 1987)

ATLAS PLASTERING, INC.
Atlas Plastering, Inc./Walker -Pierce , a Joint Ven-
ture and Marshall Bell and Painters Union,
Local 4, Brotherhood of Painters and Allied
Trades , AFL-CIO. Cases 20-CA-17432 and
20-CA-17487
31 July 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
STEPHENS AND CRACRAFr
On 21 July 1983 Administrative Law Judge
Richard D. Taplitz issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief' and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
At all relevant times the Respondent and the
Union were parties to a collective-bargaining
agreement. On 19 April 19822 Union Business
Agent Vern Jensen inspected the Respondent's job-
site and discovered that some of the employees
were nonunion or working without referrals as the
contract required. Jensen informed the general
foreman, Michael Mandeville, of the contract vio-
lations and stated that he would file charges and
also put a qualified taper on the job as union stew-
ard to police violations.3 On 20 April Jensen again
spoke to Mandeville about putting a steward on the
job, and Mandeville agreed as long as the steward
was a competent journeyman.
On 22 April the Union dispatched Dan Collette
to the jobsite as taper-steward, but the Respondent
refused to accept him.4 On 26 April Sammy
Murphy, the Respondent's president, told Union
Business Agent John Davidson that he would take
Collette back as a taper but not as a steward.
On 27 April Union Business Agents Jensen and
Davidson went to the jobsite and met with Mande-
ville, who said he would not accept Collette as
steward. Davidson said that if the Respondent did
not accept Collette the Union would close the job
down. Mandeville replied that the Respondent
would terminate anyone who left the job. Pursuant
to union instructions, the employees walked off the
1 The Respondent failed to appear at the unfair labor practice hearing
or file a brief
3 All dates are in 1982
3 Art 11 of the contract empowers the Union , "to appoint all stewards
as required . [and] to remove [them] for dust cause "
4 Collette was a competent journeyman
185
job because the Respondent refused to take the
steward back under the contract and because there
were men on the site whom the Union had not re-
ferred.
Before the employees left the job, the Respond-
ent threatened employees Marshall Bell, William
Turner, Henry Scott, and Kennen Wise with dis-
charge should they engage in a strike and told
them that they would not be rehired. The employ-
ees were discharged the same day they left the job.
Article 12 of the parties' contract provides:
Section 1. Any alleged violation of this Agree-
ment, including each and every article therein,
except fringe benefit disputes, and any failure
to meet any financial obligations provided by
this agreement . . . shall be reported to the
Drywall Joint Committee. Thereupon, the
Drywall Joint Committee shall notify any and
all parties involved and afford the alleged vio-
lating party full opportunity to be heard by
the Drywall Joint Adjustment Board. Said or-
ganization shall determine whether or not any
violation occurred. In the event said organiza-
tion finds a violation has taken place, it is au-
thorized and empowered to: (a) Determine and
collect from said violator liquidated damages
as herein provided.
Section 7. In the event an employer feels an
adverse decision has been rendered by the
Drywall Joint Adjustment Board, he shall
have the right to appeal to the Drywall Joint
Committee by (1) posting certified check or
money order in the amount of the liquidated
damages and (2) filing written notice of appeal
with the Drywall Joint Committee within
thirty (30) days from notice of decision of the
Drywall Joint Adjustment Board. Failure to
post such check or money order or to file such
notice of appeal within said thirty (30) days
shall constitute a bar to any further appeal
proceedings.
In the event a local union feels an adverse
decision has been rendered by the Drywall
Joint Adjustment Board, the local union shall
have the right to appeal to the Drywall Joint
Committee. Said written notice of appeal shall
be filed with the Drywall Joint Committee
within thirty (30) days from notice of decision
of the Drywall Joint Adjustment Board.
The contract does not contain an express no-strike
clause , but on the basis of the above-quoted provi-
sions, the judge found the contract provided for a
mandatory dispute-resolving mechanism that im-
plied the existence of a no-strike clause regarding
285 NLRB No. 26
186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
disputes arising under the contract, and the dis-
putes in question were cognizable under the griev-
ance mechanism.
Even though a contract lacks an explicit no-
strike provision, the Board and courts imply an ob-
ligation not to strike from a contractual commit-
ment to submit labor disputes to exclusive, final,
and binding resolution. Teamsters Local 174 v.
Lucas Flour Co., 369 U.S. 95, 105 (1962). But, an
agreement to resolve disputes by an exclusive,
final, and binding means does not arise solely by
operation of law. Gateway Coal Co. v. Mine Work-
ers, 414 U.S. 368, 374 (1974). Thus, where parties
have not agreed to a dispute-resolving mechanism
that is exclusive, final, and binding, the contract
contains nothing from which to imply an obligation
not to strike.
With certain exceptions not relevant here, the
contractual grievance mechanism provides that al-
leged contract violations "shall be reported" to the
joint committee that refers them to the joint adjust-
ment board. The adjustment board determines
whether any violation occurred and is empowered
to collect liquidated damages . A party may appeal
the board's decision to the joint committee. Al-
though the "shall be reported" language of section
I of the provision standing alone would suggest
that the parties intended the grievance procedure
to be the exclusive means for resolving contract
disputes, section 13 of the same provision negates
such interpretation, for it provides that employees
shall not work for an employer "acting in violation
of this Agreement."5 In addition, nothing in the
provision states that the decisions of the adjustment
board/joint committee are final and binding. Lucas
Flour and Gateway Coal do not control resolution
of the issue in this case because the agreements in
those two cases required the parties to resolve dis-
putes by an arbitration mechanism that was exclu-
sive, final, and binding.
The absence of language stating that the adjust-
ment board/joint committee determination is exclu-
sive, final, and binding is sufficient reason to de-
cline to imply a no-strike obligation.' Further,
s Sec 13 also provides that employees shall not work for an employer
"who has failed or refused to comply with any decision of the appropri-
ate organization rendered pursuant to the provisions to this agreement "
The judge stated that it is unclear whether sec 13 applies , "to situations
in which the union claims there has been a violation or one in which
there is an adjudication of a violation by the Joint Committee " We dis-
agree The clause is written in the disjunctive , and we therefore find it
applies in both situations to which the judge referred
6 Although we have long deferred to the decisions of joint committees
when the Spielberg Mfg Co, 112 NLRB 1080 (1955 ), standards have been
met, the judge 's comment that such joint committees have often been
equated with arbitration proceedings misses the point that the machinery
chosen for dispute resolution must be exclusive , final, and binding in
order to imply a no-strike obligation
based on our reading of the contract, we find addi-
tional reasons to refrain from implying a no-strike
obligation.
Article 6, section 4, provides for arbitration of
dispatching problems and the arbitrator's decision
"shall be final and binding."7 Thus, the parties
knew how to draft a final and binding dispute-re-
solving mechanism. Where parties have provided
for final and binding resolution of some disputes, it
is reasonable to infer that they did not contract for
final and binding resolution of all labor disputes.
Further, as the judge recognized, article 12, section
14, appears to authorize strike activity.8 If the con-
tract explicitly acknowledges that the Union may
authorize strikes during the contract's duration,9 it
is inconsistent to imply, as the judge did, a no-
strike clause.
In sum, because the contract fails to state that
the adjustment board/joint committee determina-
tion is exclusive, final, and binding; because the
contract specifically provides for final and binding
resolution of specified problems; and because the
contract appears to authorize strikes during the
contract's duration, we conclude that the Union
did not waive the right to strike. Accordingly, the
Respondent violated Section 8(a)(1) and (3) of the
Act by threatening to discharge employees Bell,
Turner, Scott, and Wise if, and then discharging
them because, they engaged in a walkout to protest
the Respondent's contract violations.
CONCLUSIONS OF LAW
1. The Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of
the Act by threatening, on 27 April 1982, to dis-
charge employees Marshall Bell, William Turner,
Henry Scott, and Kennen Wise if they engaged in
a strike.
2. The Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) and
(1) of the Act by discharging employees Bell,
Scott, Turner, and Wise on 27 April 1982 because
they engaged in a strike.
7 Further , the arbitrator 's decision is a level above the art 12 joint
committee
8 No one disputes that one reason the Union instructed employees to
leave the jobsite was because the Respondent refused to accept a steward
the Union appointed pursuant to the contract Arguably, under art 11 of
the contract the Respondent had only two options (to accept the steward
or invoke the joint committee procedure ), and under art 12, sec 14, the
Union had contractual authority to remove the employees from the job-
site when it learned of the contractual violation
8 We need not, and therefore do not, construe the breadth of the
Union's contractual authority to remove employees from the jobsite We
merely rely on the contract 's apparent authorization of strike activity as a
basis for rejecting the judge's conclusion that it is appropriate to imply a
no-stoke provision in the contract
ATLAS PLASTERING, INC 187
3. The unfair labor practices described above
affect commerce within the meaning of Section
2(6) and (7) of the Act.
ORDER
The National Labor Relations Board orders that
the Respondent, Atlas Plastering, Inc./Walker-
Pierce, a joint venture, Fresno, California, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with discharge should
they engage in a strike.
(b) Discharging employees for engaging in
lawful strike activity.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer employees Marshall Bell, William
Turner, Henry Scott, and Kennen Wise immediate
and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority
or any other rights and privileges previously en-
joyed, and make them whole for any loss of earn-
ings and other benefits resulting from their respec-
tive discharges, as prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest to be com-
puted in the manner prescribed in New Horizons for
the Retarded.10
(b) Remove from its files any reference to the
unlawful discharges and notify the employees in
writing that this has been done and that the dis-
charges will not be used against them in any way.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing 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.
(d) Post at its offices in San Francisco, Califor-
nia, copies of the attached notice marked "Appen-
dix."" Copies of the notice, on forms provided by
10 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after 1 January 1987 will be com-
puted at the "short-term Federal rate" for the underpayment of taxes as
set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts
accrued prior to 1 January 1987 shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation.
al 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 "
the Regional Director for Region 20, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT threaten to discharge employees if
they engage in a strike.
WE WILL NOT discharge employees for engaging
in lawful strike activity.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Marshall Bell, William Turner,
Henry Scott, and Kennen Wise immediate and full
reinstatement to the jobs they held as of 27 April
1982 without prejudice to their seniority or any
other rights and privileges previously enjoyed, and
WE WILL make them whole, with interest, for any
loss of earnings or other benefits resulting from
their discharges.
WE WILL notify each of them that we have re-
moved from our files any reference to his dis-
charge and that the discharge will not be used
against him in any way.
ATLAS PLASTERING, INC./WALKER-
PIERCE, A JOINT VENTURE
188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Donald R. Rendall, Esq., for the General Counsel.
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge.
This case was tried in San Francisco, California, on
April 5, 1983. The charge and amended charge in Case
20-CA-17432 were filed respectively on September 29
and November 9, 1982, by Marshall Bell, an individual.
The charge and amended charge in Case 20-CA-17487
were filed respectively on October 21 and November 9,
1982, by Painters Union Local 4, Brotherhood of Paint-
ers and Allied Trades, AFL-CIO (the Union). An order
consolidating those cases and a complaint issued on No-
vember 26, 1982, alleging that Atlas Plastering,
Inc./Walker-Pierce, a Joint Venture (Respondent) violat-
ed Section 8(a)(1) and (3) of the National Labor Rela-
tions Act.
Issues
The primary issues are
1. Whether Respondent threatened to discharge em-
ployees if they engaged in a strike.
2. Whether Respondent, about April 27, 1982, dis-
charged employees Marshall Bell, William Turner,
Henry Scott, and Kennen Wise because they engaged in
a strike.
3. Whether a collective-bargaining agreement between
Respondent and the Union contained an implied no-strike
clause under which a strike by Respondent's employees
would not be an activity protected under the Act.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally and to file briefs. A
brief, which has been carefully considered, was filed on
behalf of the General Counsel. Respondent filed an
answer to the complaint, but did not appear at the hear-
ing or offer any evidence. Regarding paragraphs 1
through 6 of the complaint, the answer neither admitted
nor denied those allegations but instead stated "Inasmuch
as these are statements of fact of identification, actions
and representative of persons, we make no special com-
ment." Pursuant to Section 102.20 of the Board's Rules
and Regulations, those allegations are deemed admitted.
On the entire record of the case and my observation of
the witnesses and their demeanor, I make the following
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Atlas Plastering, Inc., a California corporation with an
office and place of business in Fresno, California, is en-
gaged in providing lathing, plastering, and other services
and materials for industrial construction. Walker-Pierce,
a partnership jointly owned by Charlie Walker and
Clyde Pierce, is engaged in furnishing labor to industrial
construction contractors. At all times material, Respond-
ent, a joint venture, consisting of Atlas Plastering, Inc.
and Walker-Pierce, has been engaged in the combined
business operation described above at an industrial con-
struction site in San Francisco, California, called the job-
site. At all times material, Tutor-Saliba-Perini has been
engaged in the building and construction industry with
an office and place of business in San Francisco, Califor-
nia, and has been the general contractor at the jobsite.
During the calendar year immediately preceding issuance
of complaint Respondent, in the course and conduct of
its business operations at the jobsite, provided services
and material valued in excess of $50,000 directly to
Tutor-Saliba-Perini. During the same period of time
Tutor-Saliva-Perini, in the course and conduct of its busi-
ness operations at the jobsite, purchased and received
goods and materials valued in excess of $50,000 directly
from points outside California. Respondeent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Sequence of Events
At all times material , Respondent and the Union have
maintained in effect and enforced a collective-bargaining
agreement that contains a procedure to resolve contract
disputes. That contract is described in detail below.
In early April 1982 Respondent's employees engaged
in a 1-day strike. There is no evidence in the record with
regard to the details of that walkout, but apparently the
dispute was resolved and the employees returned to
work. About 13 weeks later the Union threatened to, and
then did, call another walkout. The complaint alleges
that the Respondent violated Section 8(a)(1) and (3) of
the Act by threatening to discharge employees if they
engaged in a strike and by discharging them when they
did strike.
On April 19, 1983, Union Business Agent Vern Jensen
made an inspection of the jobsite during which he spoke
to Respondent's general foreman, Michael Mandeville.'
Jensen told Michael Mandeville that there were some
tapers (employees who did the taping work on drywall
construction) on the jobsite who were nonunion and that
some of them were working without referrals that were
required by the contract. Michael Mandeville gave
Jensen a list of the employees of the job. Jensen found
two nonunion men and three or four who came from
Fresno or Stockton without referrals. Jensen told Mi-
chael Mandeville that Respondent could not have any
nonunion tapers on the job. Jensen said that he would
follow through with charges and also put a good taper
on the job who would be the union steward.
On April 20, 1982, Jensen spoke to Michael Mande-
ville a second time. He again told Mandeville that a
steward would be sent to the job. Mandeville said that
The complaint alleges, the answer is deemed to admit, and I find that
the following individuals were supervisors within the meaning of Sec
2(11) of the Act Sammy R Murphy, president (Atlas Plastering, Inc),
David Mandeville, superintendent , Michael Mandeville, general foreman,
and John Myatt, foreman
ATLAS PLASTERING, INC 189
would be satisfactory as long as the steward was a com-
petent journeyman . That same day , Jensen confirmed the
conversation with a letter that stated:
As of Wednesday, April 21, 1982, we are placing
a steward on the Job at the New Federal Post
Office due to violations of our contract, Article 11,
Section 1, Stewards; Article 6, Section 5, No refer-
ral; and Article 6, Section 14, non union man on the
job.
You were notified of this by phone today and at
that time requested that it be sent to you by letter
also.
If there are any questions, please contact us.
On April 22, 1982, the Union dispatched Dan Collette
to the jobsite as taper steward. Shortly thereafter Col-
lette called Jensen and said that Respondent would not
accept him as a taper steward. Jensen told Collette to
inform Michael Mandeville that unless Collette was ac-
cepted the Union would not refer men to Respondent.
On April 26 Union Business Agent John Davidson had
a telephone conversation with Sammy Murphy, the
president of Atlas Plastering, Inc. Murphy said that he
would take Collette back as a taper, but that he would
not take him back as a steward. Davidson replied that
Collette had been indiscriminately fired and that the
Union wanted him reinstated based on the contract.
On the same day Respondent's superintendent David
Mandeville told Business Agent Jensen that Mandeville
had spoken to Murphy, the president of Atlas Plastering,
Inc., and that he could not accept the steward.
On April 27, 1982, Union Business Agents Jenson and
Davidson went to the jobsite and spoke to General Fore-
man Michael Mandeville and Superintendent David
Mandeville. Three or four of the employees were
present. Michael Mandeville said that he would not
accept Collette as the stewart. Davidson told the Mande-
villes to reinstate Collette or the Union would close the
job down and have the employees leave the job. Michael
Mandeville replied that anyone who left the job would
be terminated. Shortly thereafter the union business
agents told the employees to walk off the job. Davidson
told them to walk off because Respondent refused to
take the steward back under the contract. Jensen told
him that they were striking for two reasons. First, be-
cause there were two nonunion men and three or four
men from other locals without referrals and second, be-
cause Respondent refused to accept the steward.
Before the employees left the job, they had conversa-
tions with supervisors. Michael Mandeville told employ-
ee William Turner that the business agents were going to
shut the job down, and he asked Turner whether he was
going to leave the jobsite. Turner said that he did not
know. Mandeville told Turner that if he decided to leave
that Mandeville would write him a check. Turner asked
if that meant a permanent one, and Mandeville said that
it did. Shortly thereafter Turner met on the site with em-
ployees Marshall Bell, Henry Scott, and Kennen Wise.
Foreman John Myatt was also there. Michael and David
Mandeville approached the group, and David Mande-
ville told them that he had spoken to the boss in Fresno,
and anyone who left the job would be fired. He also told
them that if they were going to leave they should go
downstairs and they would have a check in about one-
half hour.
In a separate conversation Foreman John Myatt asked
employee Henry Scott whether Scott was going to
leave. Myatt said that employees who left would get a
check and would not be rehired.2
Marshall Bell, William Turner, Henry Scott, and
Kennen Wise received their final paychecks that day and
left the job.
On April 28, 1982, employee Marshall Bell returned to
the jobsite because the check he received was not for the
right amount. He spoke to David Mandeville, who told
him that Murphy had given the order to lay him off and
not hire him back. David Mandeville said that if it had
not been for that, he would have kept Bell until the end
of the job. At that time there was still a substantial
amount of work to be done on the job.
In short, I find that Respondent, through its supervi-
sors, threatened employees with discharge if they en-
gaged in a strike and then discharged Bell, Turner, Scott,
and Wise because they struck.
B. The Collective-Bargaining Agreement
Respondent and the Union are parties to a collective-
bargaining agreement known as the July 1, 1980-June 30,
1983 Bay Area Drywall Finishers Joint agreement,
which is a contract between a number of labor organiza-
tions and employer associations as well as individual em-
ployers.
Article 1, section 1 provides that "there shall be a per-
manent Joint Committee known as the Bay Area
Drywall Joint Committee." Section 2 provides that the
committee shall consist of equal representation of asso-
ciation and union members. It also provides that "This
committee shall hear all charges of violations of this
agreement concerning Drywall Contract Association
members." It also provides that a special committee shall
be established and include a nonmember signatory con-
tractor to hear charges against nonmember signatory
contractors. Article 12, section 5 provides that a drywall
joint adjustment board that hears charges against non-
member signatory contractors shall consist of one signa-
tory contractor, one nonmember signatory contractor,
and two members elected by the Union.3
Article 12, section 1 provides:
VIOLATIONS
Section 1. Any alleged violation of this Agree-
ment, including each and every article therein,
except fringe benefit disputes, and any failure to
meet any financial obligations provided by this
E In another conversation Dave Mandeville told Scott and other em-
ployees that he was sick and tired of the job having to be shut down
with violations all the time , that it was no way to try to get a job com•
pleted, and that as far as he was concerned, Respondent could write hit
check also
s The record does not indicate whether Respondent is bound by the
contract as a member of one of the associations or as a nonmember signa-
tory contractor
190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
agreement, by a member of an Association or non-
member signatory contractor shall be reported to
the Drywall Joint Committee. Thereupon, the
Drywall Joint Committee shall notify any and all
parties involved and afford the alleged violating
party full opportunity to be heard by the Drywall
Joint Adjustment Board. Said organization shall de-
termine whether or not any violation occurred. In
the event said organization finds a violation has
taken place, it is authorized and enpowered to:
(a) Determine and collect from said violator liq-
uidated damages as herein provided ... .
That clause goes on to set forth criteria to be used in de-
termining liquidated damages.
The contract does not contain an express no-strike
clause . There are, however , a number of provisions that
specifically permit strikes in certain circumstances. Arti-
cle 6, section 11 provides that it shall not be a violation
of the agreement for employees to refuse to pass through
or work behind a legitimate picket line recognized by the
building and construction trades council in the area
where the work is being performed. Article 6, section 12
provides that no employee shall work for an employer
signatory who has failed to pay its employees wages and
other compensation provided for in the agreement and
that in such circumstances the Union can strike. Article
6, section 15 provides that when a prime contractor re-
fuses to sign a short-term contract guaranteeing the pay-
ment of wages and fringes, it shall not be a violation of
the contract for the Union to picket or for its members
to withhold their labor.
Article 12, section 12 states
Section 12. Employees shall not enter the employ
or remain in the employ of any Employer or
Drywall Contractor who willfully neglects or re-
fuses to stand trial or after due trial refused to abide
by a decision rendered pursuant to the provisions to
this agreement.
Article 12, sections 13 and 14, which arguably give the
Union the right to strike for any alleged breach of con-
tract , are quoted in full in section D below.
C. Alleged Contract Violations and Jurisdiction of the
Joint Committee
Paragraphs 10 and 11 of the complaint allege that the
employees engaged in a strike because Respondent re-
fused to comply with the Union's demand that it abide
by certain terms of the contract. There is no contention
that the strike was an unfair labor practice strike . 4 In his
4 Certain unfair labor practice strikers can maintain their protected
status even in the presence of an express or implied no-strike clause
Mastro Plastics Corp. v. NLRB, 350 U.S. 270 (1956). A no-strike clause
will not limit the right to strike when the employer's unlawful conduct is
"destructive of the foundation on which collective bargaining must rest."
Id at 281 . The Board has held that a strike in violation of a no-strike
clause does not become protected activity unless the unfair labor practice
is a serious one. Arlan 's Department Store, 133 NLRB 802, 808 (1961).
The conduct of Respondent in this case cannot be described in those
terms
brief, counsel for the General Counsel describes the
strikers as economic strikers.
The Union struck for two reasons. The first was that
Union Business Agent Jensen "found two non-union men
and three or four men who came out of Fresno or Stock-
ton without the proper referrals." Although there is
room to -question whether Jensen was complaining about
an employee being on the job who was not a member of
the Union, any ambiguity was cleared up by his letter to
Respondent of April 20, 1983, in which he referred to
"Article 6, Section 14, non-union man on job." That sec-
tion deals with the requirement that a workman who is
not a union member obtain a referral slip from the
Union, as well as other contract requirements . It also
provides for a citation before the drywall joint adjust-
ment board and for payment by the employer for initi-
ation fees and dues that the Union lost. The letter also
refers to article 6, section 5 of the contract, which pro-
vides that no workman shall be employed without first
obtaining a referral slip from the Union. It thus appears
that the Union's first claim that Respondent violated the
contract relates to the allegation that it did not comply
with the hiring hall requirements of the contract. Such a
breach would clearly be a contract violation within the
jurisdiction of the joint committee, and that committee
would have power to remedy the violations. The Union's
second reason for the strike was the claim that Respond-
ent refused to accept Collette as steward. Article 11, sec-
tion 1 of the contract provides that a business representa-
tive is empowered to appoint a competent journeyman as
steward. Article 11, section 5 provides that the steward
shall not be removed or laid off until the Union has been
notified and has had 24 hours to either remove or refuse
to remove the steward. If the business agent refuses to
remove the steward, the employer may appeal the busi-
ness agent 's decision to the drywall joint committee.
In sum, I find that the Union struck because it be-
lieved the Company violated certain provisions of the
collective-bargaining agreement and that all the alleged
violations involve matters that came under the jurisdic-
tion of the drywall joint committee or board for hearing
and resolution.
D. Analysis and Conclusions
As a general proposition, a strike called by a union is a
protected and a union activity that cannot be lawfully
interfered with by an employer. However, a union may
bargain away the right to strike in exchange for other
contract terms such as a mandatory arbitration clause. A
no-strike provision is generally considered the quid pro
quo for such a clause. When the parties to a contract
provide for a mandatory peaceful dispute-resolving
mechanism in a contract as the exclusive means for re-
solving disputes, they either expressly or impliedly give
up their right to use their economic power to resolve
those disputes. W. L. Mead, Inc., 113 NLRB 1040 (1955).
In the landmark case of Teamsters Local 174 v. Lucas
Flour Co., 369 U.S. 95, 104 (1962), the United States Su-
preme Court laid to rest any doubt about that proposi-
tion of law, holding:
ATLAS PLASTERING, INC 191
Whether, as a matter of federal law, the strike
which the union called was a violation of the col-
lective bargaining contract is thus the ultimate issue
which this case presents. It is argued that there
could be no violation in the absence of a no-strike
clause in the contract explicitly covering the subject
of the dispute over which the strike was called. We
disagree.
The collective bargaining contract expressly im-
posed upon both parties the duty of submitting the
dispute in question to final and binding arbitration.
In a consistent course of decisions the Courts of
Appeals of at least five Federal Circuits have held
that a strike to settle a dispute which a collective
bargaining agreement provides shall be settled ex-
clusively and finally by compulsory arbitration con-
stitutes a violation of the agreement. The National
Labor Relations Board has reached the same con-
clusion. W. L. Mead, Inc, 113 N L R.B. 1040. We
approve that doctrine. To hold otherwise would ob-
viously do violence to accepted principles of tradi-
tional contract law. Even more in point, a contrary
view would be completely at odds with the basic
policy of national labor legislation to promote the
arbitral process as a substitute for economic war-
fare. See United Steelworkers v. Warrior & Gulf Nav.
Co., 363 U.S. 574.
What has been said is not to suggest that a no-
strike agreement is to be implied beyond the area
which it has been agreed will be exclusively cov-
ered by compulsory terminal arbitration. Nor is it to
suggest that there may not arise problems in specific
cases as to whether compulsory and binding arbitra-
tion has been agreed on, and, if so, as to what dis-
putes have been made arbitrable. But no such prob-
lems are present in this case. The grievance over
which the union struck was, as it concedes, one
which it had expressly agreed to settle by submis-
sion to final and binding arbitration proceedings.
The strike which it called was a violation of that
contractual obligation.
In the Lucas Flour case the high Court implied the exist-
ence of a no-strike clause even though the contract spe-
cifically provided that there would be no suspension of
work during an arbitration. An implication could have
been drawn from that clause that the parties did not
intend to agree to a no-strike clause in situations where
there was no arbitration pending. Justice Black, in dis-
sent, took the position that there was no basis for infer-
ring a no-strike clause in situations not explicitly covered
by the no-strike clause of the agreement. However, a ma-
jority of the court took a different view.
A waiver of the right to strike will not be lightly im-
plied. The right to strike is not foreclosed when the dis-
pute in question is not cognizable under an arbitration
clause. Thus, neither an express nor an implied no-strike
clause will prevent employees from striking in a sympa-
thy strike where the underlying dispute is with parties
who are not subject to the grievance procedure, so that
that procedure can not resolve the dispute. In such cir-
cumstances a no-strike clause to be effective would have
to specifically state that it was intended to cover such a
situation . Gary-Hobart Water Corp., 210 NLRB 742
(1974), enfd. 511 F.2d 284 (7th Cir. 1975); Pacemaker
Yacht Co., 253 NLRB 828 (1980), enf. denied 663 F.2d
455 (3d Cir. 1981); Kellogg Co., 189 NLRB 948 (1971),
enfd. 457 F.2d 519 (6th Cir. 1972).
Even with regard to disputes that are cognizable under
a mandatory arbitration provision, the parties can pre-
vent the implication of a no-strike clause by explicitly ex-
pressing their intention to that effect. However absent
such an explicit expression of intent, the duty not to
strike is coterminous with the agreement to arbitrate.
Gateway Coal Co. v. United Mine Workers, 414 U.S. 368
(1974). Resolution of this case turns on whether or not
the parties have explicitly expressed their intent that the
Union retain its right to strike even in situations when a
dispute is cognizable by the dispute resolving mecha-
nism.
The applicable law was recently summarized by the
Sixth Circuit Court of Appeals in Ryder Truck Lines v.
Local 480, 705 F.2d 851, 854-855 (6th Cir. 1983). That
Court held
The right to strike or engage in work stoppages,
guaranteed by Section 7 of the National Labor Re-
lations Act, 29 U.S.C. § 157, may be surrendered or
waived by an express provision in the collective
bargaining agreement. Mastro Plastics Corp. v.
N.L.R.B., 350 U.S. 270, 280 . . . (1956). Certain
statutory rights such as the right to strike "are con-
ferred on employees collectively to foster the proc-
ess of bargaining and properly may be exercised or
relinquished by the union as a collective bargaining
agent to obtain certain economic benefits for union
members." Alexander v. Gardner-Denver Co., 415
U.S. 36, 51, FEP Cases 81 . . . (1974). The promise
not to strike, therefore, is the quid pro quo for the
employer's promise to submit grievances to arbitra-
tion. Boys Markets v. Retail Clerks, 398 U.S. 235,
248 . . . (1970).
The concept of coterminous interpretation is
founded upon the quid pro quo theory. That is, the
right to strike may be bargained away in exchange
for an employer's promise to bestow certain benefits
such as terminal arbitration. Coterminous interpreta-
tion refers to the notion that if the subject matter of
the strike is arbitrable, then the strike violates the
no-strike clause. Delaware Coca-Cola v. General
Teamsters Local Union, 624 F.2d 1182, 1185 (3d.
Cir. 1980). Correlatively, the obligation to refrain
from striking is not violated when the subject of the
strike is nonarbitrable. Id.
In Teamsters Local 174 v. Lucas Flour, 369 U.S. 95
(1962), the employer fired an employee for unsatisfactory
performance, and the union called a strike. The employer
brought suit under section 301 of the Labor Management
Relations Act, seeking damages for an alleged illegal
strike. Though the agreement did not contain an express
no-strike provision, the court found an implied duty not
to strike inherent in the union's obligation to arbitrate. In
holding that the strike violated the agreement, the Su-
192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
preme Court gave deference to "the basic policy of na-
tional labor legislation to promote the arbitral process as
a substitute for economic welfare." Id. at 105. Consistent
with that policy, the Court established certain boundaries
to the scope of such a no-strike obligation:
What has been said is not to suggest that a no-strike
agreement is to be implied beyond the area which it
has been agreed will be exclusively covered by compul-
sory terminal arbitration.
Id. at 106 (emphasis added).
Similarly, in Gateway Coal Co. v. Mine Workers, 414
U.S. 368 (1974), the Court recognized the relationship
between the no-strike and arbitration clauses. After em-
phasizing that a no-strike obligation is undertaken in ex-
change for the employer's promise to arbitrate, the Court
stated:
Thus, an arbitration agreement is usually linked
with a concurrent no-strike obligation, but the two
issues remain analytically distinct. Ultimately, each
depends on the intent of the contracting parties. It
would be unusual, but certainly permissible, for the
parties to agree to a broad mandatory arbitration
provision yet expressly negate any implied no-strike
obligation. . . . Absent an explicit expression of
such an intention, however, the agreement to arbi-
trate and the duty not to strike should be construed
as having coterminous application. [Footnote omit-
ted.]
Id. at 382.
In the instant case Respondent and the Union are par-
ties to a contract under which they have agreed that a
joint committee shall hear and decide claims that the
contract has been violated and remedy such violations.
The procedure agreed to is a mandatory dispute-resolv-
ing procedure. The Board has often equated such joint
committees with arbitration proceedings. Brown Co., 243
NLRB 769, 770 (1979), enf. denied on other grounds 663
F.2d 1078 (9th Cir. 1981); Denver-Chicago Trucking Co.,
132 NLRB 1416 (1961); United Parcel Service, 232 NLRB
1114 (1977), enfd. 603 F.2d 1015 (D.C. Cir. 1979); Termi-
nal Transport Co., 185 NLRB 672, 673 (1970).
As is set forth in detail above, the dispute between Re-
spondent and the Union over which the Union called the
strike and the employees left the job was cognizable
under that mandatory dispute-resolving mechanism.
Under the Lucas Flour case the contract must be con-
strued as containing an implied no-strike clause that is
applicable to the dispute in question. The key question is
whether, under the principles set forth in Gateway Coal
Co., the contract contains an explicit expression of the in-
tention of the parties that the joint committee procedure
will not preclude the right to strike with regard to dis-
putes such as we have here.
The contract explicitly states that the right to strike
and to withhold services is to be retained in specific des-
ignated circumstances. The relevant clauses are set forth
in section B above. They relate to contract disputes in-
volving such matters as the payment of wages and pay-
ments to the welfare fund, the failure to guarantee cer-
tain payments, and the right to honor certain picket lines.
None of those specific circumstances are present in the
instant case. The presence of those clauses in themselves
gives rise to a strong negative pregnant indicating there
is no right to strike in circumstances that are not specifi-
cally covered. There is a similar negative pregnant in ar-
ticle 12, section 12 that states that employees shall not
remain in the employ of an employer who refuses to
stand trial or refuses to abide by a decision rendered
under the agreement . However, that section is followed
by sections 13 and 14 on which a serious argument can
be made that the parties have agreed that the Union shall
have the unlimited right to strike whenever there is a
contract violation. The language of both those sections
raises more questions than it answers . The contract is a
complex document that obviously was not written by
amateurs . If the parties intended that the joint committee
procedure should not be construed as a limitation on the
Union's right to strike or the employees' right to with-
hold services, they could have said so in clear, unequivo-
cal terms. Instead, sections 13 and 14 state:
Section 13. No party to this agreement, whether
employer or employee, shall work for or with, or
employ on any job a person as employer or employ-
ee, who is acting in violation of this Agreement or
who has failed or refused to comply with any deci-
sion of the appropriate organization rendered pursu-
ant to the provisions to this agreement.
Section 14. Business Representatives of the Coun-
cil shall be informed immediately of any violation
and shall be empowered to remove at once, jour-
neymen tapers, and apprentices from any and all
jobs being done by the member (or non- member
signatory) contractor in question. Employees re-
moved from any job for such violation shall be paid
by the contractor the amount at the rate of straight
time to compensate them for the inconvenience and
loss of time due to said violation. Said waiting time
shall not exceed 5 days. It shall be a violation of the
agreement for failure to report violations of the
Agreement.
Section 13 begins with a reference to "no party to this
agreement , whether employer or employee .. . ." The
contract is between the employer and the Union. Ordi-
narily an employee is considered to be a third-party ben-
eficiary of the contract but not a party to the agreement.
The reference to an employer or employee working for
or with, or employing a person as employer or employee
who is acting in violation of the agreement, is, at least,
difficult to interpret. It is a construction industry con-
tract and the clause is subject to a number of different
meanings . It could be, as the General Counsel claims, a
general statement of intention that employees retain the
right to strike in all contract disputes. It could also apply
to a construction industry situation where an employer
contractor will work as a subcontractor for a different
employer on one job and then work individually as an
employee on another job. That construction, at least,
would give meaning to the introductory language of the
paragraph that refers to "no party to this agreement."
ATLAS PLASTERING, INC.
Even assuming that the clause is intended as a refutation
of a no-strike clause implication, it is not clear whether it
applies to situations in which the Union claims there has
been a violation or one in which there is an adjudication
of a violation by the joint committee. If the General
Counsel's contention is accurate, then all of the preced-
ing paragraphs that explicitly permit strikes in particular
situations would not be only wholly redundant, but
would be misleading because of the implication that
there could not be a strike in anything but the specific
situations . The contract must be read as a whole to con-
strue the intent of the parties. A similar problem is
present with regard to section 14, which gives the busi-
ness representative power to remove employees from a
job when he is informed that there is a violation. That
clause could be construed as giving the Union the right
to strike under all circumstances when there is a claim of
contract violation. It could also be construed to mean
that the Union could call a strike when there is the type
of violation under which the contract permits employees
to withhold their services, as is specified in the other sec-
tions of the contract.
If we start from the premise that the right to strike
will not be considered waived unless the contract clearly
and unmistakably sets forth such a waiver, then the Gen-
eral Counsel has established a case. The contract lan-
guage here is ambiguous. However, that approach has
been used by the Board in determining whether a dispute
is cognizable under an arbitration clause. That is not the
193
question in this case. Clearly the dispute is so cognizable.
The starting point here is the Supreme Court law set
forth in Lucas Flour, under which a no-strike clause must
be implied. Under Gateway Coal Co. such an implication
is warranted absent an explicit expression to the contrary
in the contract. The ambiguous language of sections 13
and 14, when construed in the light of the other contract
language discussed above, falls short of being such an ex-
plicit expression. I therefore find that there is an implied
no-strike clause in the contract that applies to the dispute
in question and that the strike over that dispute was not
a protected activity under the Act. It follows that Re-
spondent's threat to discharge employees if they engaged
in the strike and the discharge of employees because they
did engage in the strike were not violations of Section
8(a)(1) and (3) of the Act. I shall therefore recommend
that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The General Counsel has not established by a pre-
ponderance of the credible evidence that Respondent
violated the Act as alleged in the complaint.
[Recommended Order for dismissal omitted from pub-
lication.]