Kellogg Co.

National Labor Relations Board - Board Decisions

Apr 21, 1971

189 N.L.R.B. 948 (N.L.R.B. 1971)

948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kellogg Company and Local 3, American Federation of
Grain Millers , AFL-CIO . Case 7-CA-7432 (1) &
(2)
April 21, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND
KENNEDY
On November 5, 1970, Trial Examiner Benjamin K.
Blackburn issued his Decision in the above-entitled
proceeding, finding that Respondent had not engaged
in certain unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions and a supporting brief, and
Respondent filed cross-exceptions and a brief in
support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the cross-excep-
tions, the briefs, and the entire record in the case, and
hereby adopts the findings,I conclusions, and recom-
mendations of the Trial Examiner, only to the extent
consistent herewith.
The Trial Examiner found that the two alleged
discriminatees were discharged for refusing to cross
the picket line of another union which represented
fellow employees. The Trial Examiner further found
that, absent any other evidence in the record, the no-
strike prohibition set forth in section 1101 clearly and
unambiguously states that only strikes over grievable
disputes were barred, that therefore a strike not over a
grievable dispute but in support of the economic
demands of fellow employees would not fall within
the clause's ban, and, accordingly, that a conclusion
1 We hereby correct the following inadvertent error in the Trial
Examiner's Decision which in no way affects our Decision herein In the
first sentence of section III, A, "115" should be replaced by "150 "
2 The relevent contract clauses are as follows
NO STRIKES-NO LOCKOUTS
Section 1101
(a) During the life of this Supplemental Agreement no strike or
work stoppages in connection with disputes arising hereunder
shall be caused or sanctioned by the Union, or by any member
thereof, and no lockout shall be ordered by the Company in
connection with such disputes
NO SYMPATHY STRIKE
Section 1102
During the life of this Supplemental Agreement, no sympathy
that the two alleged discriminatees were discharged
for engaging in a protected activity in violation of
Section 8(a)(1) of the Act would be warranted.2
However, he also found that the record clearly
established that Respondent and the Charging Party,
contrary to the express terms of section 1101, really
intended to ban strikes which arise for any reason
during the term of the agreement and not just strikes
over disputes grievable under its terms. In support of
this conclusion he relied solely on the poststrike April
30, 1969, telegram of Roy O. Wilburn, president of the
International Union and leader of all the union
parties who participated in collective-bargaining
negotiations, in which Wilburn told the members of
the Charging Party who were refusing to cross the
picket line of their fellow employees that they were
violating their own contract. Relying on this telegram
as evidence of the parties' intent, the Trial Examiner
concluded that the two alleged discriminatees violat-
ed section 1101 by refusing to cross the picket line and
that thus their conduct was unprotected. Accordingly,
he found that Respondent did not violate Section
8(a)(1) of the Act when it discharged the two
employees for refusing to cross the Pressmen's picket
line in violation of section 1101. We believe that the
Trial Examiner's conclusions are in error.
As the Trial Examiner held, in the instant case the
no-strike prohibition contained in section 1101 of the
contract (see fn. 2, supra) relates only to disputes
arising under the terms of that contract and is thus not
applicable to a situation where, as here, individual
employees refuse to cross another union's picket line
at the Employer's own plant.3 Respondent argues that
sections 1102 and 1103 (see In. 2, supra) were intended
also to prohibit the sympathetic refusal by individual
employees to cross a picket line. While section 1102
does relate to sympathy strikes, it too is inapplicable
to this situation. That section specifically forbids the
Union to engage in a sympathy strike as a result of
union differences with "any other local or national
employers" (emphasis supplied). It is clear therefore
that a sympathy strike, as in the instant case, at the
Company's local plant is not prohibited by that
section. Moreover, unlike section 1101, the prohib-
ition against striking extends only to "the Union."
strike shall be caused or sanctioned by the Union because of
differences between the AFL-CIO or any of its affiliated
Unions and any other local or national employers, except for
differences between the AFL-CIO or any of its affiliated
Unions involving other plants of the Company
STRIKE AUTHORIZATION
Section 1103
It is agreed that before a strike may be called the Company will
be given a copy of the written authonzation which is provided
to the local Union by the President of the AMERICAN
FEDERATION OF GRAIN MILLERS authorizing such
action to be taken in accordance with its Constitution and By-
Laws
Hoffman Beverage Company, 163 NLRB 9813
189 NLRB No. 123
KELLOGG COMPANY
The critical phrase "or any member thereof," which
was included in section 1101, was omitted from
section 1102. We interpret this omission to mean that
the Union has waived for itself and its members the
right to strike over a dispute arising under the terms of
the contract, but has not, in any event, waived the
right of its members to refuse to cross a picket line in
sympathy with another union's strike. Nor do we
deem relevant section 1103 which relates to the
necessity of obtaining a written strike authorization as
there is no evidence that the Charging Party or its
International ever called a strike. The language of all
of these clauses, in our view, is unambiguous.
In our opinion, the Trial Examiner erred in
accepting the April 30 telegram as conclusive evidence
of the parties' intent in negotiating the otherwise
unequivocal no-strike clauses. Thus, the record
contains other evidence that supports the contrary
conclusion, namely, that the Charging Party and
Respondent intended and understood that the no-
strike clauses constituted merely a narrow prohibition
on strike activity. In this regard we note that the
Charging Party at every step of the grievance
procedure concerning the two discharges took the
position that the employees were engaged in concert-
ed protected activity which was not waived by the
contract, and also filed charges with the Board on the
same theory. More importantly, Respondent during
these proceedings said that in firing these employees it
was not charging a breach of any of the no-strike
prohibitions but rather a violation of its work rule
concerning unsatisfactory attendance. In addition, we
find of critical importance in evaluating evidence of
the parties' intent the total absence of any contempo-
raneous evidence of the bargaining history in regard
to the negotiation of the various no-strike clauses
which would indicate that the parties intended the no-
strike commitment to be a broad one. Moreover, it
appears that Respondent itself viewed the section
1101 no-strike prohibition as constituting a narrow
ban on strike activity relating only to disputes
cognizable under the contract, as it unsuccessfully
attempted after the two discharges to obtain an
agreement from the Charging Party to modify this
clause to eliminate the phrase "in connection with
disputes arising hereunder,"-a phrase which signifi-
cantly restricted the scope of the no-strike clause in
the previous agreement-and thus make the clause
into the broad proscription that Respondent contends
it already is.
Finally, in refusing to cross the picket line at their
place of employment and report to work, the two
alleged discriminatees were each assisting the labor
4 Southern Greyhound Lines, Division of Greyhound Lines, Inc, 169
NLRB 627
5 The Hearst Corporation, 161 NLRB 1405, enfd sub nom News Union
949
organization then on strike. It did not matter that they
were not members of the bargaining unit represented
by that union. It is well settled that Section 7 of the
Act protects an employee in his right to assist a labor
organization regardless of whether he is eligible for
membership in it and that such conduct is protected
concerted activity.4
Since it is clear that the activities of the two alleged
discriminatees were not in violation of the applicable
no-strike clause and were of a protected concerted
nature, we find that Respondent by discharging them
for such conduct violated Section 8(a)(1) of the Act.
Contrary to our dissenting colleague, we have not
construed the above provisions of the parties' collec-
tive-bargaining agreement as "simply a commercial
contract." As noted above, we have reviewed all the
pertinent evidence in this case, including the April 30,
1969, telegram of Roy O. Wilburn, and cannot find in
this history a waiver of the right of these individual
employees to refuse to cross this picket line. Nor do
we read the Hearst case,5 on which the dissent relies,
as suggesting a contrary result. There, unlike the
instant case, the contracts set out no-strike clauses in
the broadest terms. One contract provided: "the
Union and its members individually and collectively
will not, during the term of this Agreement, cause,
permit, or take part in any strike, sit down, picketing
or other curtailment or restricting of the delivery of
the Companies' newspapers . . . ."6 While the Trial
Examiner in the instant case found that the narrow
no-strike clause clearly did not waive the rights of
these individual employees, the Trial Examiner in
Hearst found, with Board and court affirmance, that
the contracts in question were extremely ambiguous
in this respect. He therefore resorted to extraneous
evidence to ascertain whether the parties had intend-
ed to prohibit refusals to cross a picket line by
individual employees. The evidence on which he
relied included the rejection twice by the companies
of a clause proposed by one union which would have
specifically permitted an employee to refuse to "go
through or work behind any picket line." The
president of one of the unions involved and virtually
all the officers, both local and International, of the
other union were positive that their respective
contracts required their members to work behind the
picket line. The unions' views, direct and unequivocal,
were most persuasive in the context of no-strike
clauses broad enough to be interpreted as forbidding
a refusal to cross another union's picket line.
In our opinion, the considerations which require us
to find in this case that the Union had not waived the
right of these employees to observe a picket line of
of Baltimore v NLRB , 393 F 2d 673 (C A D C)
6 The other contract provided that any differences as to the rights of the
parties under the contract were to be resolved "without strike "
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
another union at this plant are equally persuasive. We
do not read the Hearst decision as a reversal of the
long-established rule that a waiver of a statutory right
can only be accomplished by "clear and unmistakea-
ble" language. Timken Roller Bearing Co v. N.L.R.B.,
325 F.2d 746, 751 (C.A. 6), cert. denied 376 U.S. 971;
The Fafnir Bearing Co., 146 NLRB 1582, 1585. Little,
indeed, of this important principle would be left if a
contract, clearly ineffective as a waiver of a Section 7
statutory right, could, on the basis of a single
statement by one union official, be so interpreted.
THE REMEDY
We have found, contrary to the Trial Examiner, that
Respondent engaged in certain unfair labor practices
in violation of Section 8(a)(1) of the Act, by
discharging Robert Sutfin and Elaine Putnam for
engaging in protected concerted activities. In our
opinion, it is necessary in order to effectuate the
purposes of the Act that Respondent be ordered to
cease and desist from engaging in such unlawful
activity and to reinstate these employees with
backpay.7 Under the facts of this case, the strike
having terminated on July 22, 1969, and Respondent
having failed to offer the discriminatees reinstate-
ment, we shall direct that Respondent be required to
make them whole for their loss of earnings by
payment to each of them of the sum which they would
normally have earned on and after July 23, 1969, the
day after the picket line was removed, to the date
Respondent offers them reinstatement, less their net
earnings for that period. See Difco Laboratories, Inc.,
172 NLRB No. 235, Southern Greyhound Lines, 169
NLRB 627. Backpay shall be computed in the manner
set forth in F W. Woolworth Company, 90 NLRB 289,
with interest added thereto in the manner set forth in
Isis Plumbing & Heating Co, 138 NLRB 716.
Upon the basis of the foregoing findings of fact and
upon the record as a whole, we make the following:
CONCLUSIONS OF LAW
1. Kellogg Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Local 3, American Federation of Grain Millers,
AFL-CIO, and Printing Specialty and Paper Prod-
ucts Union Local No. 480, International Printing
Pressmen and Assistants' Union of North America,
AFL-CIO, are each a labor organization within the
meaning of Section 2(5) of the Act.
r As discharged employees who have been terminated because of resort
to protected concerted activities, neither Sutfin nor Putnam was required to
make an offer to return to work upon the termination of the strike Union
Carbide Corporation, 174 NLRB No 147 Nor is it relevant in the case of a
discriminatory discharge for engaging in concerted protected activity
whether or not the discriminatees have been permanently replaced
3. Respondent has interfered with , restrained, and
coerced employees in the exercise of rights guaranteed
in Section 7 of the Act by discharging Robert Sutfin
and Elaine Putnam , thereby violating Section 8(a)(1)
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Kellogg Company, Battle Creek, Michigan, its offi-
cers, agents, successors, and assigns, shall take the
following action in order to effectuate the purposes of
the Act:
1. Cease and desist from:
(a) Interfering with, restraining, and coercing
employees in the exercise of rights guaranteed in
Section 7 of the Act by discharging Robert Sutfin and
Elaine Putnam because they had engaged in protected
concerted activities.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action:
(a) Offer to Robert Sutfin and Elaine Putnam
immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially
equivalent positions without prejudice to their seniori-
ty or other rights and privileges, and make them whole
for any loss of pay which they may have incurred by
reason of Respondent's discrimination against them
in the manner described above in "The Remedy."
(b) Notify immediately the above-named individu-
als, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
(c) Post at its facility in Battle Creek, Michigan,
copies of the attached notice marked "Appendix." 8
Copies of said notice, on forms provided by the
Regional Director for Region 7, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
8 In the event that 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 National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
KELLOGG COMPANY
(d) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
MEMBER KENNEDY, dissenting:
I do not agree with the majority decision to reverse
the Trial Examiner's dismissal of the complaint.
It seems to me that the majority decision is based on
a misunderstanding of the nature of a collective-
bargaining contract. The majority appears to treat the
collective-bargaining agreement in this case as if it
were simply a commercial contract to which the usual
technical rules of construction, including the parol
evidence rule, are applicable. This is a fundamental
error.
A collective bargaining agreement is not an
ordinary contract to which apply the principles of
law governing ordinary contracts. It must be
construed liberally rather than narrowly and
technically, and it must be read as a whole and in
the light of the law relating to it when made. .. .
In order to interpret a collective bargaining
agreement, it is necessary to consider the scope of
other ralated collective bargaining agreements as
well as the practice, usage, and custom pertaining
to all such agreements. Words in particular
collective bargaining agreements are like words in
a statute, in that the same word may have different
meanings in different contexts, and the language
in each agreement should be construed with
reference to the particular practices, background,
and milieu which gave rise to its use.
The industrial common law-the practices of
the industry and the shop-is equally a part of the
collective bargaining agreement although not
expressed in it. . . . Where past practice has
established a meaning for language used by the
parties in a collective bargaining agreement, the
language will be presumed to have the meaning
given to it by the past practice. . . . [Footnotes
omitted.]9
As the above quotation makes clear, if there is one
rule of contract interpretation unsuitable of applica-
tion to a collective-bargaining agreement, it is the
parol evidence rule, since the purpose of that rule is
restrictive, whereas a collective-bargaining contract
must be construed broadly in light of context, history,
practice, etc. In The Hearst Corporation case,i° the
Board was confronted with a fact situation almost
identical to that in this case. In that case, the employer
and the ITU were parties to a collective-bargaining
contract which contained a clause providing for
peaceful settlement of disputes over rights of either
under the Agreement or the construction of the
Agreement and forbade strikes or lockouts. Employ-
ees of the employer represented by another union
951
went out on strike, and the members of the ITU
refused to cross their picket lines. ITU officials
warned their membership that a sympathetic refusal
to cross the picket lines would be a breach of the no-
strike clause in their collective-bargaining contract.
Nevertheless the ITU members continued in their
refusal to cross the picket lines. The employer
responded to the sympathy strike with a lockout. In
upholding the Board's finding, based in principal part
on the union leaders' interpretation, that the contract
forbade sympathy strikes, the court said (393 F.2d at
678):
Petitioners urge that this evidence [union lead-
ers' interpretation of contract ] dehors the contract
should not be considered since the contract
language is clear in its failure to bar observance of
the picket lines. In our view, however, the Board
was not required to regard the contract language
as free from doubt on its face and that, in the
search for intention, it was entitled to seek
illumination in these external circumstances. And
those circumstances were significant. The union
tradition of honoring picket lines is admittedly
strong, but, as its waiver in formal contract
language is not to be precipitately assumed, so it is
unlikely that responsible, experienced, and author-
itative union leaders will lightly interpret their own
handiwork as barring its observance.
In the present case, the contract language in dispute
was taken from the collective-bargaining contract
negotiated by the Grain Millers International and
several locals of the International, including Local 3,
the Charging Party. Accordingly, International rather
than local officials would be in the best position to
know what the contracting parties meant by the
language in the no-strike clauses. The International
president categorically stated to the employees before
any employee was discharged that a sympathy strike
was forbidden by the contract. In view of the fact that
"responsible, experienced, and authoritative union
leaders" will not lightly interpret contract language to
bar sympathy strikes in light of the union tradition of
honoring picket lines, the Trial Examiner's finding
that the parties intended to bar such strikes seems
eminently reasonable to me. I would therefore adopt
his further finding that Respondent did not discrimi-
nate against Robert Sutfin and Elaine Putnam by
discharging them for engaging in a sympathy strike
and would dismiss the complaint.
9 48 Am Jur 2d, Labor and Labor Relations, § 1208
10 The Hearst Corporation, 161 NLRB 1405, enfd sub nom News Union
of Baltimore v NLRB , 393 F 2d 673 (C A D C)
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives you, as
employees, certain rights, including the right to self-
organization; to form, loin, or help Unions; and to
bargain collectively through a representative of your
own choosing.
Accordingly, we give you these assurances:
WE WILL NOT interfere with, restrain, or coerce
employees in the exercise of rights guaranteed in
Section 7 of the National Labor Relations Act by
discharging or by otherwise discriminating against
any employees because of their protected concert-
ed activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL offer to Robert Sutfin and Elaine
Putnam immediate and full reinstatement with
backpay.
KELLOGG COMPANY
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named individ-
uals, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 500 Book Building, 1249 Washington Boule-
vard, Detroit, Michigan 48226, Telephone
313-226-3200.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Trial Examiner: This case
began on July 18, 1969,1 when Local 3, American
Federation of Grain Millers, AFL-CIO, referred to herein
as the Charging Party, filed an unfair labor practice charge
against Kellogg Company, referred to herein as Respon-
dent . On July 31, 1970, the General Counsel of the National
Labor Relations Board , by the Regional Director for
Region 7 (Detroit , Mich .) issued a complaint alleging that
Respondent violated Section 8(a)(1) of the National Labor
Relations Act by discharging Robert Sutfin on May 19 and
Elaine Putnam on or about June 16 for refusing to cross a
picket line set up at Respondent 's plant by Printing
Specialty and Paper Products Union Local No. 480,
International Punting Pressmen and Assistants ' Union of
North America, AFL-CIO, referred to herein as the
Pressmen . Respondent 's answer, duly filed, admits some of
the allegations of the complaint and denies others,
including the allegations that Respondent has committed
any unfair labor practices . Hearing was held before me,
pursuant to due notice, on September 10, 1970 , in Battle
Creek, Michigan . All parties appeared at the hearing and
were given full opportunity to participate , to adduce
relevant evidence , to examine and cross -examine witnesses,
to argue orally, and to file briefs. Upon the entire record,
including the General Counsel 's oral argument at the
hearing and a brief subsequently filed by Respondent, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent , a Delaware corporation , manufactures
various food products. During calendar year 1969 it
produced and shipped from its plant in Battle Creek
directly to customers outside the State of Michigan
products valued in excess of $1 million. During the same
period it received in Battle Creek goods and materials also
valued in excess of $1 million which were shipped there
directly from suppliers outside the State of Michigan. On
the basis of these admitted facts, I find that Respondent is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, the answer admits, and I find that
the Charging Party and the Pressmen are each a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Facts
Of the approximately 3,500 employees at Respondent's
Battle Creek plant in April 1969, approximately 115 were
represented by the Pressmen , the remainder by the
Charging Party. The contracts of both Unions expired that
month , the Charging Party's on April 15. Both engaged in
negotiations with Respondent. The Charging Party and
Respondent agreed to extend their old contract until May 2
while negotiations continued after April 15. On April 25 the
Pressmen struck . Pickets appeared at Respondent 's plant
shortly after 2 p.m. that day. They remained there
constantly until the strike ended on July 22. On April 26 the
I Dates are 1969 unless otherwise indicated
KELLOGG COMPANY 953
Charging Party and Respondent signed a new contract
which was made retroactive to April 15.
The no-strike clause in the old contract between the
Charging Party and Respondent read.
ARTICLE XI
ASSURANCE
NO STRIKES-NO LOCKOUTS
Section 1101.
(a) During the life of this Contract, no strikes or
work stoppages shall be caused or sanctioned by
the Union, or by any members thereof, and no
lockouts shall be ordered by the Company, until
the conditions of settlement provided in this
agreement shall have been tried and shall have
been exhausted. It is further understood that the
grievance and arbitration sections of this Contract
shall be used as provided herein.
(b) It shall not be considered a breach of this
agreement for an employee of the Company to
refuse to cross a picket line at the Plant of another
employer or to refuse to enter upon the premises
of such other employer, if such a refusal does not
constitute a violation of subsection 303A of the
Labor-Management Relations Act of 1947.
NO SYMPATHY STRIKE
Section 1102. During the life of this Contract, no
sympathy strike shall be caused or sanctioned by
the Union because of differences between the
AFL-CIO or any of its affiliated Unions and any
other local or national employers, except for
differences between the AFL-CIO or any of its
affiliated Unions involving other plants of the
Company.
PLANT PROTECTION
Section 1103. Employees whose work is required
for Plant Protection during any strike or shut-
down shall be permitted faithfully to perform such
services without interference from the American
Federation of Grain Millers, or organizations
affiliated therewith, or members thereof. The
Union and Company will agree who will perform
such work.
STRIKE AUTHORIZATION
Section 1104. It is agreed that before a strike may
be called the Company will be given a copy of the
written authorization which is provided to the
local Union by the President of the AMERICAN
FEDERATION OF GRAIN MILLERS author-
izing such action to be taken in accordance with
its Constitution and By-Laws.
In the new contract, section 1101 of article XI reads:
(a) During the life of this Supplemental Agreement no
strike or work stoppages in connection with disputes
arising hereunder shall be caused or sanctioned by the
Union, or by any member thereof, and no lockout shall
be ordered by the Company in connection with such
disputes.
(b) It is agreed that any authorized legal strike that may
be called by the Union, or any lockout by the Company
on or after the expiration of the Master Agreement in
an effort to secure changes in or to secure a new Master
Agreement shall not be deemed a breach of the
provisions of this Supplemental Agreement prohibiting
strikes or work stoppages and lockouts during the life of
this Supplemental Agreement.
(c) It is agreed that any authorized legal strike that may
be called, or any lockout by the Company, on or after
the expiration of this Supplemental Agreement in an
effort to secure changes in or a new agreement, shall not
be deemed a breach of the provisions of the Master
Agreement.
Section 1102 is identical except that "Supplemental
Agreement"2 has been substituted for "Contract." Section
1103 is identical with section 1104 of the old contract.
Section 1103 of the old contract has been dropped In each
contract the article in which the grievance procedure is set
forth begins with language that is substantially the same. It
states that a grievance shall be defined as any dispute
involving a question of the application or interpretation of
any matter covered by the terms of the agreement. Each
contract provides for the eventual submission to arbitration
of irreconcilable grievances.
As a result of the Pressmen's picket line, some employees
represented by the Charging Party who were scheduled to
work the 6 p.m. to midnight shift on Friday, April 25, failed
to report. Among them was Elaine Putnam, a packer who
had worked for Respondent since June 1962. Her husband
was a striking pressman.
Whether or not the Charging Party would honor the
Pressmen's picket line immediately became a newsstory
worthy of coverage in local media. Howard Roe, president
of the Charging Party, issued a statement which read.
We are honor bound to honor our contract. The
contract has been extended until May 2, 1969. Members
are not required to subject themselves to bodily harm. If
this happens they are advised to go home and advise the
Kellogg Company by phone of what happened.
The statement was carried in news broadcasts on local
radio stations on April 25. The Battle Creek Enquirer and
News' page 1 story in its April 26 editions began:
To cross picket lines or not to honor the company
contract . . .
That is the question facing approximately 3,500
Kellogg Co. workers Monday when plant gates reopen
after the weekend.
Their answers will determine whether production at
the area's largest place of employment continues or
shuts down in the wake of a strike Friday by the
company's 116 pressmen.
The story also attributed to Roe the statement that "he and
his executive committee were instructing members to
2 Respondent and American Federation of Grain Millers , AFL-CIO , Battle Creek , thus requiring some change in the verbiage of local
entered into their first master agreement in February 1969 during the life of agreements such as this one The phrase "in connection with disputes
the old contract between Respondent and the Charging Party The master arising thereunder" first appeared in the master agreement
agreement covered three of Respondent 's plants in addition to the one at
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remain on the job-despite picket lines-because the
company contract is still in force."
A few employees represented by the Charging Party
failed to report for work because of the picket line during
the week of April 28. Mrs Putnam was off all week for that
reason. Robert Sutfin, a warehouse employee since May
1963 whose father was a sinking pressman, failed to report
Monday, April 28, and T_iesday, April 29, for that reason.
He worked Wednesday, April 30, then was off sick
Thursday and Friday, May I and 2. Respondent attempted
to contact absent employees by telephone to urge them to
return to work. On Wednesday the Charging Party
purchased time on a local radio station and broadcast the
following message to the employees it represented-
Here is a message from Howard Roe, President, and
Robert Willis, Business Agent of Local 3 [i.e., the
Charging Party]. The American Federation of Grain
Millers have received the following telegram:
"A small number of members of Local 3 are
violating their own contract by refusing to report
to work Please advise these members that they
are in violation of a valid contract with the
Kellogg Company which has been approved by
the membership of Local 3 and the International
Union, and further instruct these members that in
order to protect their jobs they must report to
work immediately."
(Signed) Roy O. Wilburn
General President
American Federation
of Grain Millers
International Union
The preceding paid for by the American Federation of
Grain Millers International Union, Local 3.
As a result of Respondent's and the Charging Party's
efforts, the only employees represented by the Charging
Party who persisted in refusing to cross the Pressmen's
picket line were Sutfin and Mrs Putnam. Sutf in worked the
week of May 5-9. He failed to report for work Monday,
May 12, and thereafter because of the picket line. Mrs.
Putnam was on layoff status, for reasons unrelated to the
strike, the weeks beginning May 5, 12, 19, and 26. She was
on vacation, as arranged before the strike began, the week
of June 2. She failed to report for work on Monday, June 9,
and thereafter because of the picket line.
"Unsatisfactory attendance record" is a group III
violation of Respondent's rules. The normal procedure for
group III violations calls for an oral warning for the first
offense, a written warning for the second offense, a final
warning for the third offense, and discharge for the fourth
offense. The rules also state, "When a year or more elapses
between violations in Group III, and the facts warrant, an
employee on final warning may be given one more
opportunity before being discharged " The contract
between Respondent and the Charging Party provides for
suspension and hearing before discharge. Grievances over
discharges enter the grievance procedure at the fourth step.
The contract provides for five grievance steps prior to
arbitration.
Sutfin was issued an oral warning for unsatisfactory
attendance on July 31, 1964, a written warning on March
10, 1966, and a final warning on February 28, 1968. On
August 5, 1968, Sutfin's foreman discussed his attendance
with Sutfin. The foreman told Sutfin "his attendance would
have to be perfect from now on." On March 24, 1969,
Sutfm's foreman reminded Sutfin he was on final warning.
Respondent suspended Sutfin on May 19 His discharge
hearing was held on May 21. He filed a grievance on May
22. The fourth step meeting was held on May 28, the fifth,
on June 19. Respondent refused to modify his discharge. At
all stages, including the telephone conversation in which
Respondent notified Sutfin that he was suspended, Sutfin
informed Respondent that the reason for his current
absence from work was his refusal to cross the Pressmen's
picket line. Throughout, Respondent took the position that
Sutfin was discharged for violation of the attendance rule,
while Sutfin and the Charging Party took the position that
Sutfin was engaging in a protected activity within the
meaning of the Act. When Respondent asked what Sutfin
would do if his discharge were revoked, he replied that he
would not return to work until the picket line was removed.
Sutfin's grievance has not been taken to arbitration.
Mrs. Putnam's story is similar to Sutfin's. She was
issued an oral warning for unsatisfactory attendance on
August 21, 1967, a second oral warning on March 15, 1968,
and a written warning on May 9, 1968. At the time of her
discharge she had not received a final warning. She was
suspended on June 16. Her discharge hearing was held on
June 18. She grieved the same day. Fourth and fifth step
grievance meetings were held on June 23 and July 2,
respectively. Her discharge also still stands. She, too,
informed Respondent that the reason for her current
absence was her refusal to cross the Pressmen's picket line.
In her case, Respondent's stated reason for discharging her
was "her continued refusal to report for work and her
unsatisfactory past attendance compounded by continued
absence" The Charging Party protested that Respondent
had deviated from the rules by discharging her without first
giving her a final warning. Respondent took its stand on the
facts that the rules provide a final warning as part of a
"normal" procedure, pointing out that the rules also state,
"However, no one has a right to a certain number of
warnings. It is only when an employee pledges to conduct
himself properly thereafter that another chance may be
granted, and continued employment can be justified" and
that Mrs Putnam, like Sutfin, said she would not return to
work until the picket line was removed. The Charging Party
once again took the position, to no avail, that Mrs. Putnam
was engaging in legally protected activity. Mrs. Putnam's
grievance has also not been taken to arbitration.
No specific persons were hired by Respondent to take the
places of Sutfin and Mrs. Putnam. In Sutfin's case, another
warehouse employee was promoted to his job at his rate of
pay. In Mrs Putnam's case, as well as in Sutfin's,
Respondent had sufficient employees to run the plant
without hiring a specific replacement for her. Respondent
first hired new female employees in the ordinary operation
of the plant after Mrs. Putnam's discharge on July 7 The
record does not reveal when, if ever, it first hired men
following the discharge of Sutfin.
On July 24 Respondent proposed to the Charging Party a
modification of section 1101, paragraph (a) which would
KELLOGG COMPANY
have eliminated the phrase "in connection with disputes
arising hereunder " The contract between Respondent and
the Charging Party has not been modified.
On July 24 Sutfin made an unconditional offer to
Respondent to return to work . Mrs. Putnam has not
contacted Respondent since her fifth step grievance hearing
on July 2.
During the Pressmen 's strike, which ended on July 22, a
story appeared in the Enquirer and News on July 11 which
quoted Robert Willis , business agent of the Charging Party,
as having said:
Our contract ' s no-strike clause would make any
member lay his job on the line if he refused to cross the
pressmen 's picket line in order to support the
strike
*
Our attorneys advise us that our no-strike clause
makes members liable to discharge if they fail to come
to work because they refuse to cross the picket
line . . .
While not purporting to quote Willis verbatim , two other
paragraphs in the same story read.
The position of the Kellogg Co members of the
Grain Millers union in the pressmen 's strike against the
company is rooted in the grain millers' contract,
according to Robert W. Willis, business agent for the
union.
He said that two grain miller members already had
been fired for failure to come to work during the strike.
B. Analysis and Conclusions
Respondent's first defense is that Robert Sutfin and
Elaine Putnam were discharged not for refusing to cross a
picket line, but for unsatisfactory attendance . It is so
obviously without merit as hardly to be worthy of serious
comment Sutfin and Mrs. Putnam were discharged for
failing to report to work . They failed to report for work
because they refused to cross the Pressmen 's picket line
Ergo, they were fired for refusing to cross a picket line.
QED.
If any further demonstration is required , consider the
weight of all the evidence . Sutfin 's final warning is dated
more than a year before the strike. Respondent's rules
provide for mercy after a year has gone by. Sutfin was
absent in that year Just a month before the strike, his
foreman had occasion to remind him that he was on final
warning Respondent 's written record of that conversation
does not indicate that Respondent considered this the "one
more opportunity" provided by the rules. On the contrary,
it merely reads
Gordon Terry discussed [his attendance record] with
Sutfin Reminded of F.W . Sutfin said only time off
work was for Drs appointment or illness.
In Mrs . Putnam's case , her absenteeism had never been so
serious as to rise to the level of a final warning, the normal
prerequisite to a discharge for unsatisfactory attendance.
Most important, in both cases Respondent's own minutes
955
of discharge hearings and grievance meetings clearly
establish that neither Sutfin nor Mrs. Putnam would have
been discharged if they had agreed to stop honoring the
picket line. There is simply no evidence in the record to
support a finding that either would have been discharged
when they were if there had been no strike and no picket
line. Therefore , Respondent 's first defense is a pretext and
comes close to being a frivolous pretext . I find that Robert
Sutfin and Elain Putnam were discharged for refusing to
cross a picket line.
Respondent 's second defense is that Sutfin and Mrs.
Putnam violated the no-strike clause of the contract
between it and the Charging Party and were , therefore,
legally discharged for engaging in an unprotected activity.
This defense has considerable merit.
The operative words in the contract, of course , are "in
connection with disputes arising hereunder," found in
article XI, section 1101(a), of the new contract. The
General Counsel relies on Hoffman Beverage Company, 163
NLRB 981 , and San Juan Lumber Company 154 NLRB
1153, in arguing that the Charging Party, by entering into
the contract , had not waived the Section 7 right of its
members to refuse to cross a picket line at the plant in
which they were employed in support of a strike by fellow
employees represented by another union. In Hoffman
Beverage employees represented by a Teamsters local at
one of the employer's plants picketed another of its plants
to protest the closing of their own. Employees of the
picketed plant who refused to cross the picket line were
discharged . They were represented by a second Teamsters
local, Local 282. The Board found a violation of Section
8(a)(1) of the Act on the ground that the discharged
employees ' refusal to cross the picket line was protected,
saying-
The collective-bargaining contract between Respon-
dent and Local 282 does not contain a prohibition
against striking except during the pendency of arbitra-
tion proceedings . Nevertheless in the Lucas Flour case,3
the Supreme Court said that "a strike to settle a dispute
which a collective -bargaining agreement provides shall
be settled exclusively and finally by compulsory
arbitration constitutes a violation of the agreement."
But the Court also indicated that such a no-strike
agreement is not to be implied "beyond the area which
it has been agreed will be exclusively covered by
compulsory arbitration ." 4 The contract between Res-
pondent and Local 282 provides a grievance procedure
with compulsory terminal arbitration in relation to
disputes "concerning the application or interpretation
of any provision of this Agreement , or concerning any
term or condition of employment under this Agree-
ment .. ." When the Long Island City employees
refused to cross the Pelham Manor employees ' picket
line, they did so, the Trial Examiner found , because of
the fear of physical reprisals or out of sympathy for the
Pelham Manor strikers , and not because they had a
dispute of their own cognizable under the grievance-
3 Local 174, Teamsters v Lucas Flour Co, 369 U S 95, 105, New York
41a ers Union v NLRB, 327 F 2d 292 (C A 2)
9 Local 174, Teamsters v Lucas Flour Co, supra at 106, San Juan
Lumber Company, 154 NLRB 1153
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arbitration provision in their agreement. Hence, the
strikers' conduct was not in conflict with the implied
no-strike provision, and did not lose its protected
character.
In San Juan Lumber employees were discharged for
striking because the employer had paid them with rubber
checks. Once again, the Board found a violation on the
ground that the strike was a protected activity, saying:
... the collective-bargaining contract in effect be-
tween Respondent and the Union at the time of the
events involved in this proceeding contained interrelat-
ed provisions establishing a grievance procedure and
proscribing strikes and lockouts.' It is apparent from an
examination of these provisions that the right of the
employees to resort to strike action was not forfeited
entirely by the parties' contract. Rather, the effect of
these provisions was to defer the exercise of the right to
strike, upon the occasion of any dispute, until
opportunity should be afforded for settlement of the
dispute through the grievance procedure, and mediation
if necessary. It is also apparent that the contractual
grievance procedure was limited in its application to
disputes relating to the "operation" of the agreement or
its respective provisions. The contract's provisions
relating to wages,3 except for certain provisions relating
to their modification, do no more than specify a
minimum rate for workers in all departments. There are
no contractual provisions governing the time, manner,
or method of making wage payments. State statutes
generally, as is the case here, specify minimum
requirements or standards respecting such matters We
find, therefore, that here there was no dispute
cognizable under the contract's grievance provisions
relating to the "operation of [the] agreement or any
article thereof." It follows that the employees' right to
strike was not deferred by the no-strike provision, and
that the employees' resort to strike action was not in
conflict with that provision. Hence we find, for this
reason, that the protection accorded the employees'
strike activity by the National Labor Relations Act, as
amended, was not forfeited by the existence of the no-
strike provision.
2 Article X, "Grievances", and article XI, "Strikes and Lockouts "
These are set forth in some detail in the Trial Examiner's Decision The
provisions particularly applicable herein provide
Article X-Grievances
In the event that any employee or group of employees have
any grievances with respect to the operation of this agreement or
any article thereof, such grievance shall be reduced to writing
and shall be signed by the party or parties aggrieved, and shall
be presented to the management in writing
Article XI-Strikes and Lockouts
During the life of this agreement, no strikes shall be
considered or sanctioned by the Union, or any of its members
and no lockouts shall be ordered by the Employer until every
peaceful method of settlement of the difficulty shall have been
tried, " (Emphasis supplied ]
1 Essentially , all pertinent provisions are contained in article XII
entitled "Wage Rates" An additional provision, permitting cancellation of
the wage provision by either party upon 60 days' notice , appears in article
XIII, "Term Agreement "
Absent any other evidence in the record, "in connection
with disputes arising hereunder" as used in the no-strike
clause in effect at all times while Sutfm and Mrs. Putnam
were refusing to cross the picket line , when coupled with the
introductory sentence of the grievance procedure
article-"A grievance is defined as any dispute involving
the application or interpretation of any provision of this
Supplemental Agreement"-would admit of no interpreta-
tion other than that the parties had agreed that only strikers
over grievable disputes were barred. If that were so, a strike
not over a grievable dispute but in support of the economic
demands of fellow employees would not fall within the no-
strike clause 's ban , Hoffman Beverage and San Juan Lumber
would be controlling precedent , and I would , perforce, find
that Sutfin and Mrs. Putnam were discharged for engaging
in a protected activity in violation of Section 8(a)(1).
However , the record clearly establishes that such is not
what "in connection with disputes arising hereunder"
means since it is not what the parties who negotiated it
intended it to mean.
The decisive evidence is Roy Wilburn 's telegram of April
30 and the Charging Party's immediate wide circulation of
it. "In connection with disputes hereunder" was first
inserted into a no-strike clause in this master agreement,
entered into by Respondent , the American Federation of
Grain Millers, AFL-CIO, the Charging Party, and other
locals of the Grain Millers on February 1. However, the
master agreement was apparently not ratified until
October . In any event , during their negotiations for a new
local agreement , Respondent and the Charging Party
inserted the new phrase in the no-strike clause of their local
agreement because it was in the master agreement.
Therefore, when Howard Roe , president of the Charging
Party, issued his statement of April 25, he spoke with
knowledge of the fact that the new wording of the no-strike
clause was not an open issue. When he spoke, the no-strike
clause which was still in effect , thanks to Respondent's and
the Charging Party's agreement to extend the old contract
until May 2 , was the broad clause of the old contract until
May 2, was the broad clause of the old contract . It clearly
bans strikes for whatever purpose . Consequently, the result,
in law, is that his statement refers only to the employees'
duty not to strike under the old contract even though he
probably had no fine distinction in mind when he made the
statement . But no such saving fact can dilute the
significance of the April 30 telegram . By that time the new
contract containing the altered wording of the no-strike
clause had been signed and, by its own terms , taken effect
as of April 15 Therefore , when Wilburn , president of the
International union and leader of all the union parties who
participated in the negotiation of the master agreement,
told the members of the Charging Party who were refusing
to cross the picket line that they were in violation of the no-
strike clause, he revealed the interpretation which Respon-
dent and the Charging Party intended when they inserted
" in connection with disputes hereunder" into their contract.
Based on the record as a whole and especially on the April
30 telegram , I find that the no-strike clause in the present
contract between Respondent and the Charging Party is
intended to ban and, therefore , does ban strikes which arise
for any reason during the term of the agreement and not
just strikes over disputes grievable under its terms. When
Robert Sutfin and Elaine Putnam refused to cross the
Pressmen's picket line they were in violation of that no-
KELLOGG COMPANY
strike clause and thus were engaged in an unprotected
activity .3 I find, therefore, that Respondent did not commit
unfair labor practices when it discharged them for that
reason. The Hearst Corporation, News American Division,
161 NLRB 1405, enfd. sub nom. The News Union of
Baltimore v. N.L.R.B, 393 F.2d 673 (C.A.D.C.).
Having found that Respondent has not committed any
unfair labor practices by discharging Sutfin and Mrs.
Putnam, I do not reach the issue propounded by
Respondent of whether they, as economic strikers, are
entitled to reinstatement in light of the Board's Laidlaw
doctrine.4
Upon the foregoing findings of fact, and on the entire
record in this case, I make the following.
CONCLUSIONS OF LAW
1. Kellogg Company is an employer engaged in
commerce within the meaning of Section 2 (6) and (7) of the
Act.
3 Respondent also argues that Sutfin and Mrs Putnam were not
engaged in concerted activities because each testified he decided on his
own not to cross the picket line. Such a position is clearly without ment By
acting to support their economic demands on Respondent, both Sutfin and
957
2. Local 3, American Federation of Grain Millers,
AFL-CIO, and Printing Specialty and Paper Products
Union Local No. 480, International Printing Pressmen and
Assistants' Union of North America, AFL-CIO, are each a
labor organization within the meaning of Section 2(5) of the
Act.
3. The allegations of the complaint that Respondent
violated Section 8(a)(1) of the Act by discharging Robert
Sutfin on May 19, 1969, and Elaine Putnam on or about
June 16, 1969, for refusing to cross a picket line have not
been sustained.
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:
ORDER
The complaint is dismissed in its entirety.
Mrs Putnam acted concertedly with all the striking pressmen
4 The Laidlaw Corporation, 171 NLRB No 175, enfd 414 F 2d 99
(CA 7)