Gary-Hobart Water Corp.

National Labor Relations Board - Board Decisions

Nov 30, 1972

200 N.L.R.B. 647 (N.L.R.B. 1972)

GARY-HOBART WATER CORP 647
Gary-Hobart Water Corporation and International
Union of District 50, Allied and Technical Workers
of the United States and Canada Cases
13-CA-10699 and 13-CA-11017
November 30, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On June 16, 1972, Administrative Law Judge'
Lloyd Buchanan issued the attached Decision in this
proceeding Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting
briefs and the Respondent filed an answering brief
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 the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order only to the
extent consistent herewith
The complaint alleges and the General Counsel
contends that Respondent violated Section 8(a)(3) of
the Act by discharging 34 employees on June 17,
1971,2 because they engaged in a protected sympathy
strike, and by refusing to reinstate them when
openings have occurred after they made an uncondi-
tional offer to return to work on August 18, and that
Respondent violated Section 8(a)(5) by terminating
its collective-bargaining agreement with the Union
on October 27 and refusing thereafter to bargain
with the Union
Respondent's employees are represented in two
units by locals of the Charging Union Production
and maintenance employees (sometimes referred to
as the men's unit) are represented by Local 13584
Office or clerical employees (the so-called women's
unit), with whom we are concerned herein, are
represented by Local 14321 The clerical local was
certified on September 5, 1968 During the period in
question the clerical unit was covered by a collective-
bargaining agreement effective from April 1, 1969,
through December 31, 1971 The contract of the
men's unit expired May 31, 1971, and that unit struck
on June 1, 1971 On that date, the clerical unit began
a sympathy strike by refusing to cross the men's
picket line On June 17, each of the striking clericals
was informed by letter that her employment had
been terminated for breach of the no-strike provision
of the clerical unit's contract On August 18, the
clerical local, by telegram, offered to return to work
immediately On August 19, the Respondent replied
that the clericals had engaged in unprotected activity
and were not entitled to return to work On August
30, the men's unit returned to work Grievances were
filed by the terminated striking clericals on Septem-
ber 14, citing the unjust discharge and requesting
reinstatement, no further action was taken with
respect to the grievances On October 27, the
Respondent notified the clerical local that although it
believed the local's contract with Respondent had
been terminated by operation of law in view of the
local's massive breach of the no-strike clause, it was
terminating the contract as of December 31, 1971,
the contract's termination date The Respondent
noted further that the Union no longer represented a
majority in the clerical unit Thereafter, Respondent
refused to meet to negotiate modifications of the
contract
The Administrative Law Judge found that whether
the clerical unit's sympathy strike was protected or
unprotected depends on how the no-strike provision
of the contract is to be construed Under his
interpretation of the contract, he found that the
sympathy strike was unprotected, that the discharges
on June 17 were therefore lawful, and that thereafter
the sympathy strikers were no longer employees He
found that the refusal-to-bargain aspect of the case
depended on the validity of the discharges,3 or that
the alleged 8(a)(5) violation was derivative of the
8(a)(3) Having dismissed the 8(a)(3) allegations, he
dismissed the 8(a)(5) allegation
In its answer to the complaint, at the hearing and
in its brief to the Administrative Law Judge, the
Respondent contended that the alleged violations
involve a dispute (the scope of the no-strike provi-
sion) arising under the collective-bargaining contract
between the parties and that such a dispute is subject
to the grievance and arbitration provision of the
contract On the other hand, the General Counsel
and Charging Party, while contending that the
Administrative Law Judge's interpretation of the no-
strike provision is erroneous, further contend that the
Board should construe it and not defer to arbitration
In his Decision the Administrative Law Judge
discussed the deferral issue raised by the Respon-
dent, while his reasons against deferral to arbitration
are ambiguous, as we read his comments it appears
i The title of Trial Examiner was changed to Administrative Law 3 The Union did not claim that it represented the terminated clericals
Judge effective August 19 1972 replacements In fact it was stipulated that since August 15 very few of the
2 Unless otherwise indicated all dates are 1971 clericals employed by the Respondent have been members of the Union
200 NLRB No 98
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he, in effect, decided to defer on the issue of
whether the Board should defer to arbitration 4
The Administrative Law Judge found, and we
agree, that the threshold issue here is whether the
clerical unit's sympathy strike was protected activity
in light of the no-strike clause included in the
collective-bargaining agreement between the parties
The resolution of that issue (whether the no-strike
clause prohibited the sympathy strike) turns on the
meaning and application of the no-strike clause It is
our judgment that when, as here, the alleged unfair
labor practices are so intimately intertwined with the
interpretation of the parties' contract, it would best
effectuate the policies of the Act to remit the parties
to the procedures they have devised for determining
the meaning of their agreement
Under all of the circumstances, we therefore
conclude that this is an appropriate case for deferral
to the machinery agreed upon by the parties for
resolution of disputes arising under their contract 5 If
those procedures fail to resolve the issue, our Order
permits any party to move for further consideration
Accordingly we shall dismiss the complaint but
retain jurisdiction of this proceeding for purposes of
entertaining an appropriate postdecree motion
REMEDY
Company, Inc, 198 NLRB No 1, and Appalachian
Power Company, 198 NLRB No 7, where the Board
majority extended its Collyer doctrine to encompass
alleged violations of Section 8(a)(3), the Board
should not abdicate its authority to an arbitrator
Therefore, I would proceed to the merits of the case
As a secondary consideration I see something
incongruous in a situation where the Respondent, in
effect, repudiates its agreement with the Union
because of the Union's alleged breach of the
agreement and then invokes the grievance-arbitra-
tion procedures of that agreement in urging that the
Board defer its jurisdiction
4 The Administrative Law Judge at least implies this case may not be an
appropriate one for arbitration because under the contract the parties must
consent to arbitration The record does not support that implication The
contract is quite clear in this regard It states in part If the adjustment of
the grievance cannot be had the specific grievance shall be submitted to
arbitration (3) ARBITRATION The Union and the Company, each
on its own behalf shall appoint an arbitrator and such two arbitrators shall
appoint a third arbitrator Specific provision is then made for the
appointment of a third arbitrator by the Federal Mediation and Concilia
tion Service in the event that the Union and Company arbitrators cannot
agree on a third arbitrator (cf Tulsa Whisenhunt Funeral Homes Inc 195
NLRB No 20 where the arbitration provision could be invoked only by
agreement of the parties)
5 See Collyer Insulated Wire 192 NLRB No 150 See also National Radio
Company Inc 198 NLRB No I and Appalachian Power Company 198
NLRB No 7 where the Board (Members Fanning and Jenkins dissenting)
held the Collyer deferral rationale applicable to alleged 8 (a)(3) discharges
which essentially involved disputes concerning the meaning of relevant
collective bargaining agreement provisions
Without prejudice to any party and without
deciding the merits of the controversy, we shall order
that the complaint herein be dismissed, but we shall
retain jurisdiction for the following limited purpose
to eliminate the risk of prejudice to any party
Specifically, jurisdiction of this proceeding will be
retained for entertaining an appropriate and timely
motion for further consideration upon a proper
showing that (a) the dispute has not, with reasonable
promptness after the issuance of this decision, either
been resolved by amicable settlement in the griev-
ance procedure or submitted to arbitration, or (b) the
grievance or arbitration procedures have reached a
result which is repugnant to 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 complaint
herein be, and it hereby is, dismissed provided,
however, that
Jurisdiction of this proceeding is retained for the
limited purposes indicated in that portion of our
Decision and Order herein entitled "Remedy "
MEMBER FANNING, dissenting
For reasons set forth by Member Jenkins and me
in our dissents in Collyer Insulated Wire, 192 NLRB
TRIAL EXAMINER'S DECISION
LLOYD BUCHANAN, Trial Examiner Unlike a recent
case i in which I excluded proffered testimony because the
proffer showed that it was irrelevant and could not affect
the issues although the Board, describing the rejected
testimony as "insufficient to establish the inappropriate-
ness of [its own newly] certified unit" (this, of course, being
the reason for the exclusion at the trial after counsel had
explained the reason for the proffer), nevertheless declared
that it should have been received and that the exclusion
was erroneous but somehow nonprejudical, various allega-
tions and defenses and the evidence pro and con with
respect to them are here relevant, and dependent on the
validity of the primary defense That evidence has been
received
With disposition of the case on the primary issue, there is
no need in this Decision to swell the time spent at the trial
by further consideration and detailed recital of the
evidence on those other issues which need not now be
reached and which the Board may "not reach or pass
upon "
But habit and my interest in the proceeding as it
developed, impelled me to evaluate the evidence as it was
received and thereafter, and to make tentative findings
pending the conclusion of the trial Should reviewing
authority desire additional reference to various points
raised, further hearing will be unnecessary, on remand I
shall be quite prepared to submit analysis, which I now
No 150, and more recently in National Radio 1 Penn Building Maintenance Corp 195 NLRB No 29
GARY-HOBART WATER CORP 649
deem (and the Board may agree) unnecessary beyond that
offered below Pace the Board, "It is not meet that every
nice offense should bear his comment "
The complaint herein (issued January 4, 1972, charges
filed June 21 and November 12, 1971), as amended, alleges
that the Company has violated Section 8(a)(3) of the
National Labor Relations Act, as amended, 73 Stat 519,
by discharging 34 employees on June 17, 1971, because
they engaged in a protected sympathy strike, and by
refusing to reinstate them when openings have occurred
although they made an unconditional offer to return to
work on August 18, 1971, Section 8(a)(5) of the Act by
terminating its collective-bargaining agreement with the
Union on October 27, 1971, and bargain with the Union,
and Section 8(a)(1) of the Act by each of the above acts
The answer, as amended, denies the allegations of
violation and further alleges that the strikers violated a no-
strike clause in the collective-bargaining agreement, that
the strikers participated in mass and violent picketing, that
the Union rejected the Company's offer to arbitrate under
the contract, that no unconditional offer was made to
return to work, and that the strikers have been replaced or
their jobs eliminated, further that the Union would be
involved in a disqualifying conflict of interest if it sought to
represent the strikers' replacements, that the Company on
October 27 gave notice of termination of the contract as of
December 31, 1971, and that the breach of the no-strike
provision terminated the contract before October 27
The case was tried before me at Gary, Indiana, on
February 15 through 17, 1971, inclusive Counsel were
heard in oral argument and briefs, excellent within the
limitations of the respective positions, have been filed by
the General Counsel, the Company, and the Union, the
time to do so having been extended Upon the entire
record in the case and from my observation of the
witnesses, I make the following
FINDINGS OF FACT (WITH REASONS THEREFOR) AND
CONCLUSIONS OF LAW
I THE COMPANY'S BUSINESS AND LABOR
ORGANIZATION INVOLVED
The facts concerning the Company's status as an Indiana
corporation, the nature and extent of its business as a
public utility under permit from the Public Service
Commission of the State of Indiana, and its engagement in
commerce within the meaning of the Act are admitted, I
find and conclude accordingly I also find and conclude
that, as admitted, the Union is a labor organization within
the meaning of the Act
II THE UNFAIR LABOR PRACTICES
A Outline of Events
The Company's employees are represented in two units
by respective locals affiliated with the Charging Union
Production and maintenance employees, in what is
sometimes referred to as the men's unit, are represented by
Local 13584 Our direct concern is with the office and
clerical employees or so-called women 's unit (although it
includes four male clericals), which has been represented
by Local 14321 On September 5, 1968, the Charging
Union was certified by the Board as the exclusive
collective-bargaining representative for the clericals in a
unit described as follows
All office and clerical employees, including record
clerks and engineering clerks, engineering estimators,
and draftsmen employed by the employer at its Gary,
Portage and Hobart, Indiana locations, but excluding
all production and maintenance employees, office
janitress, confidential employees, temporary employ-
ees, professional employees, guards and supervisors as
defined in the Act
Effective April 1 (January 1 is elsewhere declared to be
the effective date) a collective-bargaining agreement
covering the clericals through December 31, 1971, was
entered into between the Company and the Charging
Union on behalf of 14321 The women had been on strike
between March 20 and April 1, 1969, and approximately
70 of some 97 men in the production unit had honored
their picket line (We were also told that 43 remained on
the job) It is noted that on March 21, 1969, the Company
in a letter to the president of the men's local cited the no-
strike provision in their contract and warned of possible
action against the locals and the employees for violation of
the agreement by the refusal to cross the picket line, 5 days
later the Company sent a letter, similar to the extent
pertinent, to members of 13584
The contract with 13584 having expired on May 31,
1971, the operating employees began an economic strike on
June 1 and remained out until August 30 On June 1 the
clericals began a sympathy strike,2 refusing to cross the
men's picket line It is claimed that the clericals' became an
unfair labor practice strike with their discharge on June 17
On June 3 the Company sent to Mandich a letter similar
to that of 2 years before addressed to Local 13584, and on
the same day a letter to each clerical, citing a breach of the
no-strike clause, directing that they report for work on
June 7 and, quoting from the contract that their services
"are essential to the operation of a public utility and to the
welfare of the public," warning of termination and possible
damage action
On June 9, during negotiations with the men's local only,
the Company submitted for proposed signature by the
Charging Union and both locals a memorandum of
agreement which provided, inter alia, that the Union and
the locals would not take action against any member who
crossed a picket line set up by a unit other than that to
which the employee belonged The Charging Union and
the locals refused to sign It was later brought out that the
Union had asked the Company to draft a document
covering the Company's position on the items mentioned
in the proffered memorandum of agreement
On June 17 the Company notified each of the clericals
2 In the face of the early admission that this was a sympathy strike and became one with receipt of discharge letters which the Company sent on
the facts which regardless of the label attached so indicate Mandich chief June 17 She pointed out that the clericals carved no picket signs before
steward for Local 14321 disingenuously maintained that this was not a June 18
strike when clericals refused to go to work on June 1 and thereafter but
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that her employment had been terminated for breach of
the no-strike clause of the contract
Under article V, Grievances, the contract provides as
follows
It is expressly understood and agreed that the
services to be and being performed by the employees
covered by this agreement pertain to and are essential
to the operation of a public utility and to the welfare of
the public dependent thereon, and in consideration
thereof, and of the agreement and conditions herein by
and between the Company and the Union be kept and
performed, the Company and the Union mutually
agree that during the term of this agreement there shall
be no lockouts by the Company and there shall be no
strike, stoppages of work or any other form of
interference with any of the production or other
operations of the Company by the Union or its
members, and any and all disputes and controversies
arising under or in connection with the terms of
provisions hereof shall be subject to the grievance
procedure hereinafter set forth if the grievance is filed
within ninety (90) days of the occurrence
Article XVIII, Effectiveness, reads as follows
(2) The Union agrees that there shall be no strikes,
slowdowns or other interruption of work by any of its
members during the term of this agreement, and the
Company agrees that there shall be no lockout during
the term of this agreement, and both parties agree that
any disputes or differences shall be taken up under the
Grievance and Arbitration procedures of this agree-
ment
It was stipulated that article V appears in the contract
between the Company and the men's unit, effective June
18, 1968, and that, while that no-strike provision is
essentially the same as appears in contracts between the
Company and the men's unit during the last 20 years, these
latter contracts have not included a provision similar to
that quoted above from article XVIII
Thereafter, the strike and the sympathy strike continu-
ing, the Company, at a negotiating session with Local
13584 on July 20, submitted to the Union the following
proposal
As a part of the settlement of the contract negotiations
between the Company and District 50, Allied and
Technical Workers, and its members, it is agreed that
the wording of Article V of the contract between the
parties dated June 18, 1968 (and of the same wording
as incorporated in the new contract now being
negotiated) prohibits any and all work stoppages,
strikes, slowdowns, or observances of picket lines from
and after June, 1971 (The parties remain in disagree-
ment as to the proper interpretation of that wording
prior to that date )
It was testified that counsel for the Company maintained
and insisted that this paragraph had to be part of the
package submitted to the union membership for approval,
and that the union representatives were firmly opposed to
it
The meeting lasted until about 4 o'clock the next
morning, and later that day the Company submitted a five-
page memorandum of tentative agreement without men-
tion or reference to the suggestion of the day before The
testimony that at the conclusion of the meeting early on
the morning of March 21 the Company was not insisting
on inclusion of the paragraph which it had submitted at
that meeting is supported by the fact that the lengthy and
detailed proposal now submitted did not include the
paragraph offered just a few hours earlier
On July 22 in a letter to Moser, president of Local 13584
who was also acting on behalf of Local 14321, the
Company invoked arbitration under the grievance proce-
dure of the contract with the clericals
On August 18 both locals sent the following telegram to
the Company
IN RESPONSE TO AND IN COMPLIANCE WITH PRESIDENT
NIXON'S REQUEST FOR A STOPPAGE TO STRIKES AND
LOCKOUTS UNTIL NOV 12, 1971, THE MEMBERS OF LOCAL
13584 AND 14321 OF DISTRICT 50, A T W, IN THIS TIME
OF NATIONAL EMERGENCY FEEL IT IS THEIR PATRIOTIC
DUTY AND RESPONSIBILITY TO COOPERATE WITH THE
PRESIDENT FOR THE WELFARE OF OUR COUNTRY,
THEREFORE, WE WILL RETURN TO WORK IMMEDIATELY
SUGGEST MEETING AT ONCE TO WORK OUT DETAILS
The Company replied as follows by telegram on August
19
MR JOHN MOSER, PRESIDENT
LOCAL, 13584, DISTRICT 50
ALLIED & TECHNICAL WORKERS
1122 WEST FIFTH AVENUE
GARY, INDIANA 46402
MRS ARLENE MANDICH, CHIEF STEWARD
LOCAL 14321, DISTRICT 50
ALLIED & TECHNICAL WORKERS
1122 WEST FIFTH AVENUE
GARY, INDIANA 46402
IN YOUR WIRE TO US OF AUGUST 18, YOU STATED THAT
YOUR MEMBERS "WILL RETURN TO WORK" AND
SUGGESTED AN IMMEDIATE MEETING TO "WORK OUT THE
DETAILS " SUBSEQUENT TELEPHONE CONVERSATIONS
WITH MR MOSER AND OTHERS HAVE MADE IT CLEAR, AS IS
IMPLIED IN YOUR WIRE, THAT YOU ARE DEMANDING A
JOINT MEETING OF BOTH LOCALS WITH US CONFIRMING
OUR TELEPHONE CONVERSATIONS, WE ARE UNWILLING TO
ENGAGE IN ANY SIMULTANEOUS OR JOINT DISCUSSIONS
WITH BOTH LOCALS EACH REPRESENTS A WHOLLY
SEPARATE AND DISTINCT BARGAINING UNIT, AND THE
LOCALS ARE IN TOTALLY DIFFERENT SITUATIONS THE
OPERATING LOCAL HAS BEEN ENGAGED IN A LEGAL
STRIKE IN A DISPUTE WITH US OVER CONVENTIONAL
ITEMS OF COLLECTIVE BARGAINING-SUCH AS WAGES,
WORKING CONDITIONS, ETC ON THE OTHER HAND, THE
MEMBERS OF THE CLERICAL UNIT HAVE BEEN ENGAGED IN
UNPROTECTED AND ILLEGAL ACTIVITIES, HAVE BEEN
DISCHARGED, AND ARE NOT ENTITLED TO RETURN TO
WORK WE ARE WILLING TO MEET WITH
REPRESENTATIVES OF THE OPERATING LOCAL TO DISCUSS
THE DETAILS OF A RETURN TO WORK AT YOUR EARLIEST
CONVENIENCE WE WILL BE WILLING TO CONSIDER
MEETING WITH REPRESENTATIVES OF THE CLERICAL
LOCAL IF WE ARE INFORMED WHAT TOPICS ARE TO BE
DISCUSSED IN VIEW OF THE INJUNCTION ISSUED BY U S
DISTRICT JUDGE BARRINGTON PARKER , WE ARE NOT
GARY-HOBART WATER CORP 651
CERTAIN THAT THE PARTICIPATION OF STEEL WORKERS
REPRESENTATIVES AT SUCH MEETINGS, RATHER THAN
DISTRICT 50 REPRESENTATIVES, WOULD BE APPROPRIATE
HOWEVER, WE WILL NOT OBJECT TO SUCH PARTICIPATION
AT THIS TIME
On September 14 grievances were filed in general terms
on behalf of the striking clericals, in which they cited the
allegedly unjust discharges on June 17 and requested that
they be immediately reinstated No further action was
taken with respect to these grievances
Declaring its belief that the collective-bargainng agree-
ment with the clericals had already been terminated, the
Company sent the following letter to the Union on October
27, allegedly to avoid automatic renewal of the contract
(and placing the discharges on June 18)
International Union of District 50
Allied & Technical Workers of America
11 East Adams Street-Room 902
Chicago, Illinois 60603
Att Mr Joseph Defalco
Director-Region 43
Gentlemen
This is to inform you that this company terminates its
labor agreement with your Union (and with its Local
14321) executed as of April 1, 1969, effective on the
date therein provided, December 31, 1971, although we
believe that the contract has already been terminated
by your organization and members by operation of law
As you know, the members of Local 14321 engaged in a
massive breach of the no-strike clauses of the contract
commencing June 1, and continuing until on or about
August 30, 1971 This necessitated the discharge of 33
of them on June 18, 1971, and their ultimate replace-
ment by other employees
Your organization filed charges with the National
Labor Relations Board alleging that the discharge of
these employees constituted an unfair labor practice
However, as you know, the Regional Director refused
to issue a complaint finding "the evidence shows that
the employees represented by Local 14321 were
engaged in unprotected activities"
As matters now stand, the Company has 30 employees
in the bargaining unit which Local 14321 formerly
represented, of whom only one is as far as we know a
member of your organization (We understand that you
have a dispute with one other employee as to whether
she made a timely resignation from the Union In any
event, if she is a member, it is obvious she is an
unwilling one)
It is readily apparent that you no longer represent a
majority of the employees now working in the
bargaining unit
Under date of October 29, the Union requested that the
Company meet with it to negotiate modifications in the
clericals' contract By reply on November 11, the Company
rejected this request, citing its letter of October 27 The
Union had on November 10 acknowledged receipt of the
Company's letter of October 27 and had referred to its own
letter of October 29
B The Alleged Violation of Section 8(a)(3)
Much of the testimony received could be called
"contingency testimony" It would require consideration
only if other testimony were not determinative Thus, if the
defense be sustained that the clericals' strike or refusal to
work violated the contract between Local 14321 and the
Company, and that they were not protected as either unfair
labor practice or economic strikers, it would be unneces-
sary to determine whether there were violative discharges
before replacements were lured Otherwise we would then
detail seriatim whether the strikers unconditionally offered
to return to work, whether they were in fact replaced or
their jobs abolished before any condition that the prod-
uction and maintenance strikers return was met, and
whether picket line activity justified refusal or failure to
rehire any Somewhere here the so-called Collyer3 defense
of deferral to arbitration procedure under the contract
might also be weighed
The primary defense cites the no-strike provisions of the
contract of April 1, 1969 After its warning of June 3, the
Company in the discharge letters of June 17 cited article V
of the contract The no-strike provisions are here clearly
stated
This brings us to cases on this point and the arguments
made A provision against cessation of work or interfer-
ence therewith is lawful and the Act "clearly enables
contracting parties to embody in their contract a provision
against requiring an employee to cross picket line if they so
agree And nothing in the Act prevents their agreeing upon
contrary provisions if they consider them appropriate to
the particular kind of business involved An employee's
breach of such a agreement may be made grounds for his
discharge without violating Sec 7 of the Act "4 With the
discharge lawful in Rockaway News, cited by both sides, we
have an a fortiori situation in the instant case where, unlike
Rockaway News, members of the Union are expressly cited
If distinction be claimed in the fact that in Rockaway the
Union sought a clause permitting it to honor the picket
line, but was turned down, it cannot be sensibly found that
the employees' rights are greater and the employer's less
where the Union did not even seek such permission
In Montana-Dakota Utilities,5 cited by the General
Counsel, aside from the fact that the action there taken was
"not solely for the purpose of preserving the efficient
operation of Respondent's business," the employer "made
no attempt to replace" them "while the picketing was in
progress " The no-strike clause in that case provided that
"there shall be no collective cessation of work on
account of any controversy respecting the provisions of"
the agreement In the instant case, the no-strike bar is not
so limited, the reference to the provisions of the agreement
being in connection with grievance procedure This is so
despite the argument now made of waiver "only to the
3 Collyer Insulated Wire A Gulf and Western Systems Co 192 NLRB No
150
4 N L R B v Rockaway News Supply Company Inc 345 U S 71
5 Montana Dakota Utilities Co 189 NLRB No 111 enforcement denied
455 F 2d 1088 (C A 8 1972)
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
extent of disputes arising under the contract " Unlike
Granite City Steel,6 the no-strike clause here was not
limited by or made dependent upon the grievance
procedure, it was coordinate with and not conditioned
upon such procedure
Similarly, the decision in Kellogg7 makes it clear that,
unlike our case, the contract there barred "only strikes over
a grievable dispute" and "arising [t ]hereunder," and in that
connection applied "only to the `Union,' " not its
members
That the decision in Hoffman Beverages is not here
applicable is so obvious as to require no comment As
much, or little, can be said of other cases cited Different
cases, different provisions, different conclusions If, as
argued with reference to a Hearst case,9 bargaining history
indicated a "failure of the union to obtain the picket line
clause it had proposed during negotiations," the absence of
a different proposal no more serves to modify what is
carefully set forth in the agreement reached, inclusive and
from the Company's point of view well drafted True, the
rejection of a proposal indicates the parties' intent, so
presumably does a provision which on its face is unambi-
guous
In the instant case, limitation with respect to matters
subject to the grievance procedure is placed on the
arbitrators only The General Counsel correctly points out
that Lincoln Mills 10 recognizes a no-strike provision as a
quid pro quo for the grievance procedure But to argue that
the clericals could not air their grievances since they were
striking because of the men's activities, which were outside
the clericals' contract, is akin to the patricide's plea for
leniency due an orphan
Such an argument would permit a strike despite a
comprehensive no-strike provision whenever a dispute can
be indicated with reference to any point not covered by the
contract We cannot so readily deracinate the product of
years of negotiations and agreement and the work of
experienced negotiators and draftsmen
It is nowhere suggested how a contract could be drawn
to cover more clearly all employee concerted activities and
to forbid strikes and work stoppages, nor are cases cited
with clearer, more comprehensive, and admittedly suffi-
cient no-strike clauses-unless it be claimed, in the face of
Rockaway News, supra, that there cannot be any such
Certainly as counsel for the Union argues, the economic
dispute between the men's unit and the Company was not
cognizable under the clericals' contract and was not
subject to grievance But the clericals' claim of a right to
strike because of the men's dispute and picket line was,
whatever its merits, cognizable as a grievance which the
Company, if belatedly, offered to expedite In any event,
the no-strike provisions applied
As noted above, when the General Counsel urges that
reference here is to disputes arising under the contract, that
reference is to the grievance procedure, not to the no-strike
provision If an arbitration clause is the quid pro quo for a
6 Granite City Steel Company 87 NLRB 894 895
7 Kellogg Company 189 NLRB No 123 enfd 457 F 2d 519 (CA 6
March 22 1972)
8 Hoffman Beverage Company 163 NLRB 981
1 The Hearst Corporation News American Division 161 NLRB 1405
1416
no-strike clause, the latter is not to be vitiated by a
specious argument which would sanction removal of
controversies from the scope of a no-strike provision as
broad as that in the contract before us
The General Counsel argues for waiver or an interpreta-
tion of the agreement, or both, on the basis of past
practice, when the men struck in sympathy with the women
in 1969 The fact that the Company at that time wrote two
letters threatening discharge but took no action, the strike
ending a few days later, does not establish a pattern or
precedent for the situation when, after, a longer period and
virtually complete cessation, operations now had to be
resumed
Neither the failure to discharge the men on sympathy
strike in 1969 nor the provisions of the clericals' contract
constitute that waiver of the no-strike provision which
must be spelled out in clear and unequivocal terms 11 As
pointed out, the clericals' contract was signed and the
sympathy strikers returned to work within a few days after
they were warned in 1969, the work continuing, now the
clericals had been out for 2-1/2 weeks and the prospect
was that the men would continue their strike for a long
time, as they did until August 30, and the clericals theirs in
sympathy while their own work accumulated There was
no waiver or acquired "right to honor [the] picket line,"
now claimed by the Union, if the clericals opined or
"concluded" otherwise, it was in the face of prompt notice
by the Company If on one hand it be claimed that no
employee was disciplined in 1969, it is clear on the other
that the Company's warnings at that time were not
questioned If they rely on the Company's limited action in
1969, the clericals cannot ignore the failure at that time to
question the Company's position (and the apparent
acceptance of it) vis-a-vis those who had refused to cross a
picket line Aside from the difference between the 1969 and
the instant situations, noted above, we cannot properly rely
on failure to do more than issue warnings and ignore the
failure to question those warnings
Reference has already been made to the testimony
concerning the Company's proposals of June 9 and July
20 The General Counsel argues that these indicate that the
Company itself evidently considered the provisions to be
ambiguous and that it therefore called for further agree-
ment concerning it That proposal no more indicates an
admission by the Company concerning its understanding
of the meaning of the no-strike provision, than it does a
superabundantly cautious attempt to avoid repetition of
the situation Manifestly, not every contingency can be
foreseen If an attempt be made to meet an interpretation
which is not accepted and to avoid the effect of such an
interpretation, that attempt does not itself affect the
meaning and effect of the language previously used 12 The
question remains, how is the contract language to be
construed here and what are the rights of the parties 13 I
find and conclude that the clericals' strike was unprotect-
10 Textile Workers Union of America AFL-CIO v Lincoln Mills of
Alabama 353 U S 448
11 The Timken Roller Bearing Company 138 NLRB 15 16
12 See Kellogg Company v NLRB 457 F 2d 519 (C A 6 March 22
1972)
13 If an employer s subsequent compliance with an award supporting a
GARY-HOBART WATER CORP 653
ed, that the discharges on June 17 were lawful, and that the
clerical strikers were thereafter no longer employees
Although with this finding it becomes unnecessary to
proceed to the other allegations and defenses, I am also led
by a regard for the efforts of counsel to state, without
detailing all of the record testimony, what my findings
would be on the basis of the evidence pro and con on those
matters
With detailed examination with respect to the Compa-
ny's list of clericals and their replacements and the
abolition of their jobs, the issue is raised of the Company's
right to discharge before replacement, granted the public
service status of the business Here we must recognize that
the strike was in violation of the contract and the further
fact of need to preserve efficient operation of this
important utility From the record it appears that sufficient
help was available during the brief production and
maintenance strike in 1969, not so when 34 of 35 clericals
struck in 1971 That the public interest and public service
regulations required the Company to continue to provide
water is clear While such interest and regulations did not
carry over directly to billing and other commercial and
administrative operations, the Company could not for long
neglect such operations, it delayed for 17 or 18 days, a
reasonable period
In this connection reference may be made to Redwing
Carriers 14 and to Montana-Dakota,15 the latter particularly
with reference to any attempt to replace and the distinction
between preserving efficient operation and disciplining
Insofar as need for employees is concerned, during the I-
1/2-week strike of clericals in 1969, when production and
maintenance employees stayed out in sympathy, the
Company operated with the aid of approximately 30 or 40
percent of the latter, who did cross the picket line
Touching briefly on the contigency defenses, we come to
the issue of unconditional offer by the clericals to return It
is frequently difficult to prove the facts, and difficult to
make credibility findings Testimony may be colored or the
evidence presented only partially As an example of the
latter, Katz, attorney for the Union, testified that at a
meeting on August 24 between representatives of the
Company and of the clericals' local (this after the
Company's letter of August 19), he declared that they
wanted to work out details of the girls going back to work,
that the Company's reply was that there was nothing to
talk about since all had been fired, and that after further
discussion Chief Steward Mandich stated that all of the
girls were ready to go back to work Asked whether there
was "any mention made of the men's local," Katz replied
in the negative He was not asked whether mention was
made of the production and maintenance employees
returning to work He offered no outright denial that
Mandich had connected the clerical's return with that of
the men
On this latter point we received testimony pro and con
But most significant in this connection was Mandich's own
admission that the clericals "were offering to go back to
work with the men " Two months after the discharges, and
the men still on strike, this offer to return was conditional
despite Mandich's insistence that she imposed no condi-
tions 16
Mandich is intelligent and forceful Her admission is
meaningful, and I do not credit her denial on rebuttal
Whatever was otherwise testified to by witnesses whose
memory might be deemed slight or whose bias great, we
find support for the admission in Mandich's subsequent
testimony that the clericals were "honoring the picket line
set up by Local 13584" That was and continued to be, as
she told us, their policy Accepting the telegram's statement
of the motive which prompted it 2 months after the
discharges, it was on its face a joint request and referred to
a joint return The clericals' return was intertwined with
and conditioned on a proposal to "work out details" with
respect to return by members of both locals The women
struck in sympathy with the men It does not appear that
such sympathy, their purpose, or their procedure changed
We recall that the members of Local 13584 did not end
their strike until August 30
Beyond all of this, we have documentary evidence which
points to the offer of return as conditional, this indicated in
the concatenation between the two locals as indicated in
the telegram of August 18 Louis, the company president,
did not attempt to detail the discussion or even Mandich's
part in it But his uncertain summary or conclusionary
statement confirmed what we had already heard As he
recalled, "she said that she would like to have the clencal
workers go back with the men " This was more directly
testified to by other company witnesses, who confirmed
what Mandich herself admitted
With decision on the issues of unlawful discharge, unfair
labor practice strike, entitlement to reinstatement, and
offers to return, it becomes unnecessary to pass on the
question whether the clericals' jobs were permanently filled
or abolished We need not trace the list of clencal
personnel and their replacements and the detailed exami-
nation and cross-examination concerning these to deter-
mine whether any of the former employees' jobs remained
unfilled and available Some jobs had been elirmnated,
others were filled by permanent or temporary replace-
ments
At the trial the Company showed a film to support its
defense of mass and violent picketing There was no such
identification as would justify the refusals to reinstate and,
as I stated ex directo on the record the incidents depicted
did not appear to approach, in seriousness or vigor,
incidents described in the cases and which the Board has
found to be no more than examples of acceptable "animal
exuberance" or "normal picket line activity " (It should
suffice to refer parenthetically to the fact that still pictures
were also taken at various times )
union s position does not excuse an earlier violation by the union Local
423 Laborers (Mansfield Flooring Co Inc d/b/a Columbus Cement Floors)
195 NLRB No 35 the attempt here to obtain agreement on the position
indicated in the contract and asserted by the Company does not alter the
fact that the clericals and their local had violated the contract
14 Redwing Carriers Inc and Rockana Carriers Inc 137 NLRB 1545
15 Supra
16 Her earlier testimony was that she declared at this meeting that the
clericals felt that they had a right to go back too if the men were going
back to work
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the defense that the issues should have
been arbitrated, 2 years ago, well before Collyer,17 I
analyzed a deferral problem in which arbitration would not
settle all of the issues, including violation of Section
8(a)(3), before the Board, and despite such delays in the
past and to date, I submit that delay in Board processing is
not built in The rights of litigants can be determined fully
and expeditiously Collyer, since issued, and decisions in
other cases pending would now be determinative, but we
need not pass upon that question here
The arbitration procedure under the contract, with the
requirement that each party name an arbitrator and thus
consent and proceed to arbitration, and the deferral by the
Board in Collyer, present a procedural problem which now
remains unsolved We can defer to a more appropriate
time consideration of the questions which could be raised
in this respect
Whatever else may be said in this connection, the
clericals not having requested arbitration, the Company's
arbitration offer on July 22, whatever its effect, was not
"negated" by its refusal to bargain when it subsequently
declared the contract terminated
replaced, the status of the replacements depending on
reinstatement of the strikers and both groups being deemed
employees eligible to vote on the issue of representation
The Union has not claimed that it representedis the
replacements or that it represented a majority Upon their
lawful discharge on June 17, the erstwhile strikers were no
longer employees
Both sides agreed19 that the refusal to bargain aspect
depends on the issue of the validity of the discharges, or
that the 8(a)(5) finding is a derivative of the 8(a)(3) The
latter having been dismissed , it follows that the allegations
of violation of Section 8(a)(5) must likewise be dismissed
D The Alleged Violation of Section 8(a)(1)
All of the interference alleged is admittedly derivative
and dependent upon the findings with respect to the other
allegations The allegations of violation of Section 8(a)(1)
are dismissed
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended 20
C The Alleged Violation of Section 8(a)(5)
This is not a case where protected economic strikers are
17 Collyer Insulated Wire supra
18 It was stipulated that since August 15 very few if any clericals
employed by the Company have been members of Local 13584 We need
not concern ourselves with the defense that the Union would be involved in
a disqualifying conflict of interest-more correctly whether it would be
representing employees who had conflicting interests-and the law
concerning the extent of its right to do so
19 Because the issue is now raised in the Union s brief and stipulated
matters are sometimes overlooked on review , with a finding that they
ORDER
The complaint is dismissed in its entirety
cannot be found I repeat that the transcript includes a stipulation and
subsequent admission in this connection
20 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board the
findings conclusions recommendations and Recommended Order herein
shall as provided in Section 102 48 of the Rules and Regulations be
adopted by the Board and become its findings conclusions and order and
all objections thereto shall be deemed waived for all purposes