Iron Workers Local Union # 708

National Labor Relations Board - Board Decisions

Feb 23, 1968

169 N.L.R.B. 1062 (N.L.R.B. 1968)

1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Iron Workers Local Union No. 708 , International As-
sociation of Bridge , Structural and Ornamental
Iron Workers , and Sam Stoddard , Its Agent (Clark
Construction Company) and Billings Contractors
Council, Inc. Case 19-CB-1 156
February 23, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING, BROWN, AND JENKINS
On March 22, 1967, Trial Examiner Martin S.
Bennett issued his Decision in the above-entitled
proceeding, finding that Respondent had not en-
gaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, Respondent and
General Counsel filed exceptions and cross-excep-
tions, respectively, to the Trial Examiner's Deci-
sion and supporting briefs, and Respondent filed an
answering brief.
The National Labor Relations Board has
reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Deci-
sion, the exceptions and briefs, and the entire
record in the case, and hereby adopts the findings,
conclusions,' and recommendations of the Trial Ex-
aminer.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the complaint herein be, and it hereby is,
dismissed in its entirety.
1 Chairman McCulloch concurs in the result reached by his colleagues
since it appears from the record that the Respondent did engage in genuine
bargaining with the Company over the payday grievance. If, however, the
record had indicated that the Respondent employed the strike as a sub-
stitute for bargaining rather than as a weapon in support of its bargaining
position, he might have reached a different result.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Trial Examiner: This matter was
heard at Billings, Montana, on January 10, 1967. The
complaint' alleges that Respondents, Iron Workers Local
Union No. 708, International Association of Bridge,
Structural and Ornamental Iron Workers, and Sam Stod-
dard, its agent, herein called the Union and Stoddard,
respectively, had engaged in unfair labor practices within
the meaning of Section 8(b)(3) of the Act. Briefs have
been received from the parties.
Upon the entire record in the case, and from my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
B. E. Clark is sole proprietor of a general construction
enterprise entitled Clark Construction Co. whose prin-
cipal office and place of business is at Billings, Montana.
Clark annually purchases goods valued in excess of
$50,000 for use in its operations in Montana directly from
points outside that State. I find that the operations of
Clark Construction Co. affect commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Iron Workers Local Union No. 708, International As-
sociation of Bridge, Structural and Ornamental Iron Wor-
kers, is a labor organization within the meaning of Section
2(5) of the Act. It is undisputed, and I find, that Respon-
dent Sam Stoddard is its financial secretary, treasurer,
and agent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction; the Issue
Respondent Union is signatory to a collective-bargain-
ing agreement with the Council, a multiemployer associa-
tion to which Clark Construction Co. belongs; this con-
tract expires on June 30, 1967, but is renewable from
year to year thereafter absent certain specified notice.
There is no dispute, and I find, that the Union is the
representative in an appropriate unit of the employees in-
volved herein.
The sole issue is whether Respondent Union com-
mitted an unfair labor practice within the meaning of Sec-
tion 8(b)(3) of the Act by the naked act of striking Clark
over an arbitrable dispute without first exhausting the
grievance and arbitration provisions in the contract which
contains an express "no-strike" provision.2 It is clear,
and I find, that Respondent Union by so striking
breached the contract.' The General Counsel specifically
disavows any claim that noncompliance with Section 8(d)
of the Act constitutes a basis for the alleged unfair labor
practice.
B. The Dispute
Article XI of the contract provides that the regular
1 Issued November 10, 1966, and based upon charges filed September
16 and November 8, 1966, by Billings Contractors Council, Inc., herein
called the Council
2 Article XXVI of the contract provides in part as follows:
It is mutually agreed that there shall be no strikes authorized by the
Union or no lockouts authorized by the Employer, except for the
refusal of either party to submit to arbitration, in accordance with Ar-
ticle XXV, or failure on the part of either party to carry out the award
of the Board of Arbitration.
Article XXV- "SETTLEMENT OF DISPUTES" provides that any
disputes as to "proper interpretation of this Agreement" shall be handled
through a specified grievance and arbitration procedure.
3 Respondent Union does not concede this but I fail to see how it can
get around the specific language of articles XXV and XXVI
169 NLRB No. 152
IRON WORKERS LOCAL UNION #708 1063
payday shall be a day agreed upon between the parties,
and Tuesday had been the normal payday for the em-
ployees of Clark for about 1 year, although the record
reflects no specific agreement on this day. Tuesday, Sep-
tember 6, followed the holiday of Labor Day, Monday,
September 5, and the employees of Clark were not paid
until the afternoon of Wednesday, September 7. Respond-
ent Union basically contends that the men should have
been paid on Tuesday. Clark responds that there was an
established practice or custom that payday would be
delayed one day to Wednesday when a holiday fell on
Monday.
At the time material herein, September of 1966, Clark
was engaged in construction work at two projects in
Billings, Montana: (1) Rocky Mountain College and (2)
a commercial "Professional Building." Respondent
Union provided two members who alternated between
these two projects. Not having been paid on Tuesday,
September 6, they did not report for work on Wednesday.
Respondent Union admittedly picketed both projects
commencing September 8 with a placard reading "Clark
Construction Company picketed by Iron Workers Local
708, violation of agreement" and both jobs were
completely shut down. This picketing continued through
September 20 when Respondent Union abandoned it. On
September 22, the parties signed an agreement to ar-
bitrate the dispute pursuant to requests on September 12
and 13 by James Lechner, executive secretary of the
Council.
While the decision is not binding upon the Board, I note
that a tripartite panel handed down a decision on October
27, 1966, holding that Clark had properly delayed pay-
ment 1 day consistent with prior practice. While the deci-
sion treated with other grievances raised by Respondent
Union for disposition in the arbitration, I am satisfied and
find upon the entire record that the sole underlying cause
of the work stoppage on September 7 was the delayed
payday.'
C. Analysis and Conclusions
Much has been argued by the parties whether the
Board can decide cases involving the "interpretation" of
a labor contract . I am of the view, however, that the in-
stant case does not fall into that category . For here, there
is a clear breach of the contract . While Respondent
Union contends that this was a strike to obtain an objec-
tive not previously settled by the parties, viz , just which
day was payday , the simple answer is that the admitted
breach of the broad no-strike clause and noncompliance
with the grievance and arbitration clauses of the contract
cannot be circumvented.
It would seem that the General Counsel has a long row
to hoe here in view of Supreme Court determinations in
this area. In N.L.R.B. v. Insurance Agents ' International
Union , AFL-CIO (Prudential Ins. Co.), 361 U.S. 477,
the Court held that union-sponsored harassment of the
employer's business during negotiations for a new con-
tract by such conduct as refusals to solicit new business,
refusals to comply with reporting procedures , reporting
late for work , and not attending meetings was designed
only to pressure the employer to yield to bargaining de-
mands at the bargaining table and was not incompatible
with the concept of good-faith bargaining.
Even though the conduct there complained of was not
a protected concerted activity , the Court was of the per-
suasion that it did not constitute a refusal to bargain
within the meaning of Section 8(b)(3) of the Act. See also
Textile Workers (Personal Products Corp.) v. N.L.R.B.,
227 F.2d 409 (C.A.D.C.), for a similar result where there
was such conduct as refusals to work overtime, exten-
sions of rest periods, and slowdowns.
Similarly, in the instant case , the conduct attacked by
the General Counsel , viz, a strike in breach of a no-strike
clause and a grievance and arbitration procedure is
likewise unprotected . In these cases , the employer, with
impunity , could have disciplined the offenders . Qualita-
tively, I fail to see how the conduct complained of herein
is more heinous than that in Insurance Agents. Indeed,
the conduct there attacked took place in the very context
of ostensible good-faith bargaining, surely the very core
of the Act in this area. And the Supreme Court has also
held that a strike in derogation of the provisions of a con-
tract , even in the absence of a no-strike clause, is
similarly unprotected . N.L.R.B. v. Sands Manufacturing
Co., 306 U.S. 332.
The General Counsel argues that the decision of the
same Court in Local 174, Teamsters v. Lucas Flour Co.,
369 U.S. 95, is apposite . There, the Court held that a
strike over a dispute arbitrable under a binding arbitration
clause in the contract which did not contain a no-strike
clause was a breach of the contract . But that case stands
only for the proposition that such a strike is at odds with
national policy to promote the arbitration process as a
substitute for economic warfare and that this is cogniza-
ble and remediable in the forum of the courts . It is not, as
I view it , per se equatable with a refusal to bargain under
the Act.
Both parties attempt to derive support from the C & C
Plywood Corp. decision . N.L.R.B. v. C & C Plywood
Corp., 385 U. S. 421. I see much therein that weakens the
position of the General Counsel . The Court there
reversed a determination by the Court of Appeals for the
Ninth Circuit [351 F.2d 24] that a provision in a contract
between a union and an employer which arguably allowed
the employer to institute a premium pay plan , and had
unilaterally done so, divested the Board of jurisdiction to
entertain the union's charge of a refusal to bargain within
the meaning of Section 8(a)(5). In holding that the Board
had jurisdiction to entertain the charge , the Supreme
Court relied upon legislative history, precedents inter-
preting the Act, and efficient administration of the Act.
Several points relied upon by the Supreme Court are
significant. The employer had contended that since the
contract language might have allowed this action, the
Board could not entertain it because the matter was one
for litigation under Section 301 of the Act. The Court
stated "it is important first to point out that the collective
bargaining agreement contained no arbitration clause"
with the end result of economic warfare if differences
remained unresolved . The Board's action was therefore
deemed not inconsistent with its recognition of arbitration
as an instrument of national labor policy. But, in the
present case, there is such an arbitration clause.
The Court also noted certain language by the Board in
Cloverleaf Div. of Adams Dairy Co., 147 NLRB 1410,
1416, justifying in part its decision to construe a labor
4 The testimony of Respondent Stoddard that other grievances also other fish and eliminate preexisting grapes such as improper crossing by
caused the strike is contrary to the weight of the evidence The inference Clark of craft jurisdictional lines
is warranted that Stoddard utilized the walkout over a late payday to fry
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract that "neither party has even so much as sought
to invoke arbitration" and that it therefore was not a case
where the existence of an unfair labor practice turned
primarily on an interpretation of contractual provisions
encompassed by the arbitration provisions of the con-
tract . In the present case , arbitration was promptly in-
voked.
Again the Court, in discussing the claim that the Board
lacked power to decide cases involving interpretation of
a contract , unlike the situation in the present case, noted
that Congress had determined that the Board "should not
have general jurisdiction over all alleged violations of col-
lective bargaining agreements" and that such matter
should be litigated in the courts . It took note of the
legislative history of the 1947 amendments to the Act,
pointing out that an earlier version of the Senate bill con-
tained provisions , not enacted into law , making it an un-
fair labor practice for an employer or a Union to "violate
the terms of a collective -bargaining agreement or the
terms of an agreement to submit a labor dispute to arbitra-
tion...... S. 1126, 80th Cong., 1st Sess., I Leg. Hist. of
LMRA 109-111, 114.
The Court noted that Congress had refused to give the
Board "generalized power to determine the rights of
parties under all collective bargaining agreements ...."
It went on to state that, absent Board jurisdiction in C. &
C. Plywood, " labor organizations would face inordinate
delay in obtaining vindication of their statutory rights"
because , without an arbitration clause , the Union would
have to institute court action and relief would be years
distant . Finally , and aside from the merits of the dispute,
the fact is that the dispute was processed promptly
through tripartite arbitration and resolved , as to payday
adversely to Respondent Union and, in other areas,
favorably.
In view of all the foregoing considerations , I perceive
no basis for finding that Respondent Union by striking on
September 7, 1966, without first exhausting the
grievance and arbitration provisions of a contract con-
taining an express no-strike clause has engaged in unfair
labor practices within the meaning of Section 8(b)(3) of
the Act. I shall therefore recommend dismissal of the
complaint . See Lumber and Sawmill Workers, Local
2647 (Cheney), 130 NLRB 235, 242, modification de-
nied sub nom . Cheney California Lumber Co. v.
N.L.R.B., 319 F.2d 375 (C.A. 9). But cf. George E. Light
Dept. Stores Co., 153 NLRB 1209, fn. 1.
CONCLUSIONS OF LAW
1. Clark Construction Co. is an employer within the
meaning of Section 2(2) of the Act and its operations af-
fect commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Respondent Union, Iron Workers Local Union No.
708, International Association of Bridge , Structural and
Ornamental Iron Workers, is a labor organization within
the meaning of Section 2(5) of the Act.
3. Respondent Union and Respondent Sam Stoddard
have not engaged in unfair labor practices within the
meaning of Section 8(b)(3) of the Act.
RECOMMENDED ORDER
In view of the foregoing findings of fact and conclu-
sions of law, it is recommended that the complaint be
dismissed.