Marine Officers Association, Local Union No. 54, And Its Successor Highway, City And Air Freight Drivers, Dockmen And Helpers, Local Union No. 600

National Labor Relations Board - Board Decisions

Jun 14, 1989

294 N.L.R.B. 1124 (N.L.R.B. 1989)

1124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Marine Officers Association , Local Union No. 54,
and its Successor Highway, City and Air
Freight Drivers, Dockmen and Helpers, Local
Union No . 600, both affiliated with Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America , AFL-CIO
and David L. Morgenthaler and Riverway
Harbor Service St. Louis, Inc. Cases 14-CB-
6457 and 14-CB-6457-2
June 14, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On June 27, 1986, Administrative Law Judge
Peter E. Donnelly issued the attached decision.
The General Counsel and Charging Party River-
way Harbor Service filed exceptions and support-
ing briefs, and the Respondent Union filed an an-
swering brief.
On February 13, 1987, the National Labor Rela-
tions Board issued an order remanding the pro-
ceeding to the judge for the limited purpose of re-
opening the record to receive evidence concerning
the bargaining history of the collective-bargaining
agreement between Riverway and the Respondent
covering employees in the relevant unit and for is-
suance of a supplemental decision in light of such
additional evidence.
The judge issued 'the attached supplemental deci-
sion on June 15, 1987. Subsequently, the General
Counsel and Riverway filed exceptions to the
judge's supplemental decision and supporting
briefs, and the Respondent again filed an answering
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decisions and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.'
The pertinent facts are as follows. Riverway re-
pairs, cleans, assembles , and disassembles barges for
various towing companies . Employees engaged in
its cleaning and repair operations are represented
by the Respondent in the repair unit. Its deckhands
and utility employees engaged in assembly work
are represented by the Respondent under a sepa-
rate boat unit contract. Since 1978 the boat unit
i The General Counsel has requested that the Order include a visitator-
ial clause . We find no need for such remedial provision in the circum-
stances of this case . See Cherokee Marine Terminal, 287 NLRB 1080
(1988).
and repair unit contracts have had different expira-
tion dates.
In October 19852 repair unit negotiations were
being conducted. On October 17, the Respondent's
president held a meeting with boat unit employees,
whose agreement ran through October 1988. He in-
formed them that a strike in the repair unit was im-
minent and recommended 100-percent participation
in the strike on the part of boat unit employees. He
further informed them that the boat unit contract
would protect them if they chose to honor the
repair unit's picket line. The repair unit struck from
October 21 to October 25 and all the boat unit
honored the repair unit picket line except employ-
ees Morganthaler, Hightower, and Stewart. The
Respondent took various actions against the three
employees, including assessing fines, based primari-
ly on their.crossing and working behind the repair
unit 's picket line.3
In his original decision, the judge recommended
dismissal of the portions of the complaint that al-
leged that the Respondent violated Sections
8(b)(1)(A) and 8(b)(3) of the Act by unlawfully dis-
ciplining union members and encouraging members
to strike in violation of a contractual no-strike
clause . In so doing the judge analyzed the follow-
ing relevant provisions of the 1984-1987 boat unit
contract:
ARTICLE IX-NO STRIKE OR
LOCKOUT
Section 1 . The Union and its members ex-
pressly agree that during the term of this
Agreement there shall be no strikes, work
stoppages, picketing or picket boat operations,
sympathy or supporting strikes, boycotts,
slowdowns, or any other interferences with
the business of [sic] operations of the Compa-
ny.
The Company agrees that it will not lock
out its employees during the term of this
Agreement , it being understood that layoffs or
cessation of the Company 's operations in
whole or in part for economic or other legiti-
mate business reasons shall not be construed to
constitute a lockout in violation of this section.
Section 2. Any employee or employees who
violates [sic] the intent of Section 1 above
2 All dates refer to 1985 unless otherwise indicated.
s Action was also taken against the three individuals for having filed
unfair labor practice charges without having first exhausted their internal
union remedies. The judge found that the Respondent conceded that its
actions against the employees for filing charges violated Sec. 8(b)(1)(A)
of the Act and ordered the Respondent to take certain actions to remedy
this violation . The Respondent has not filed exceptions to this finding and
it therefore will not be discussed further in this decision.
294 NLRB No. 81
TEAMSTERS LOCAL 54 (RIVERWAY HARBOR)
shall be subject to immediate discharge or
such other form of disciplinary action as the
Company shall deem to be appropriate, subject
to the Grievance or Arbitration provisions of
this Agreement, on the issue of whether or not
the employee or employees discharge [sic] or
disciplined did, in fact, participate in any viola-
tion of the said Section 1 of this Article.
Section 3. In the event any violation of Sec-
tion 1 of this Article shall occur during the
term of this Agreement, the Company will im-
mediately notify the Union of such violative
action and the Union shall immediately take all
steps necessary and within its power to halt all
such conduct in violation of this Agreement,
and shall send a certified letter to the Compa-
ny within twenty-four (24) hours condemning
the illegal actions in violation of Section 1 of
this Article complained of and setting forth all
those steps taken by, or to be taken by, the
Union to halt and/or prevent any recurrence
of such illegal actions by its members. In
which event, the Company will not look to
the Union for further relief in the form of
damages, unless there be evidence- that the
Union, by its officers, agents or representatives
shall have called, authorized, ratified or con-
doned any such conduct which may have oc-
curred in violation of Section 1 of this Article.
ARTICLE X-PROTECTION OF RIGHTS
Section 1. It shall not be a violation of this
Agreement, and it shall not be cause for dis-
charge or disciplinary action for an employee
to choose to refuse to enter upon any property
involved in a lawful, primary labor dispute, or
to go through or work behind any lawful, pri-
mary water-borne picket line, including the
lawful, primary picket lines of any union party
to this Agreement, and including lawful pri-
mary picket lines at the Employer's place of
business. In the event of any such refusal by a
bargaining unit employee, it is also recognized
and agreed by the Union and its members that
the Company shall retain the right to perform
any bargaining unit work, installation, repair,
cleaning or other requested services at or for
the struck or picketed premises using manage-
rial, supervisory or other nonbargaining unit
personnel, including newly hired temporary
replacement employees who shall remain out-
side of the contractual bargaining unit, in
order to accomplish same without such being
interfered with or threatened in any manner by
the Union or its members.
1125
The judge concluded that although
[a]t first blush Articles IX and X appear to be
at odds since either could be applied to the re-
fusal of these three individuals to honor the
picket line . . . a careful analysis of both pro-
visions convinces me that Article X is essen-
tially an exception to the more general "no
strike" restraints of Article IX.
He thus concluded that article X of the boat unit
contract applies in situations where there is a
lawful primary picket line. In so concluding, the
judge at hearing ruled that the General Counsel
was not permitted to adduce evidence pertaining to
the parties' intent in negotiating articles IX and X
of the boat unit agreement. Contrary to the judge,
the Board concluded that a resolution of whether
the Respondent violated the Act based on the col-
lective-bargaining agreement required inquiry into
the relevant bargaining history of the parties and
their intent in negotiating the above provisions and
thus remanded the proceeding in order to receive
evidence concerning the bargaining history.
On remand, the judge concluded, consistent with
his original decision, that the Respondent did not
violate Section 8(b)(1)(A) or Section 8(b)(3) by
urging and soliciting boat unit employees to honor
the repair unit 's picket line and disciplining Mor-
genthaler, Hightower, and Stewart when they de-
clined to do so. He made this conclusion based on
his determination that the no-strike prohibition of
article IX did not apply to this situation and instead
article X governs.
Specifically, with respect to the relevant bargain-
ing history and the parties' intent, the judge re-
viewed at great length the 1982 repair unit negotia-
tions in which the parties first agreed to language
virtually identical to that in the boat unit agree-
ment at issue here.4 He noted that in 1981, after
unsuccessful negotiations for a new boat unit con-
tract, the boat unit struck. The entire repair unit re-
fused to cross the picket line and, further, repair
unit employees were paid "strike" or "out-of-
work" benefits by the Union. In this context, when
the repair unit contract subsequently expired, Ri-
verway stated its concern in negotiations about
preventing work stoppages like those in 1981. It
proposed the elimination of the expiring agree-
ment's article X "Protection of Rights" language.
The Respondent refused to agree to the elimination
of this provision, but agreed instead to additional
4 In doing so the judge misstated the numbered provisions of the repair
unit's prior agreement in fn I of his decision We note that art IX of the
1978-1982 repair unit contract is its no-strike or lockout provision and its
protection of rights language is contained in art X This inadvertent
error in no manner affects the result here
1126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
language adding "sympathy and supporting strikes"
to the prohibitions already set forth in article IX.
In light of the above, the judge concluded that
a careful reading of the record convinces me
that the parties intended Article IX of the 1982
repair unit contract to prohibit the Union from
calling sympathy strikes by repair unit employ-
ees in support of a primary strike by boat unit
employees but that the right afforded to repair
unit employees under Article X to honor a
legal picket line established by the boat unit
employees was not affected , despite the obvi-
ously conflicting language of Article IX.
The judge noted, however, that it is not what
the parties intended in negotiating the 1982-1985
repair unit contract that is at issue but rather what
the parties intended in negotiating the boat unit
agreement in 1984 . He emphasized that, although
Joe Morello, the Respondent's secretary-treasurer,
was present as a negotiator in both the 1982 and
1984 negotiations, they were different negotiations
for different contracts covering different units.
With respect to these negotiations , Riverway again
proposed eliminating the article X "Protection of
Rights" language , and the Respondent again reject-
ed this proposal . After that, the judge noted, there
was little discussion , with the Respondent agreeing
to Riverway's desire that the same relevant lan-
guage included in the 1982 repair unit contract be
included in articles IX and X of the 1984 boat unit
agreement . The judge essentially concluded that
the boat unit negotiations between the parties were
insufficient to support the contract interpretation
urged by the General Counsel . That is, he refused
to find, as he had found with respect to the provi-
sions of the repair unit contract, that article IX was
intended to prohibit concerted action in support of
a lawful primary picket line and article X was in-
tended to protect purely individual action.
We disagree . As the judge himself notes, "the
1982 repair unit [negotiations] provides some rele-
vant background" in determining what the parties
intended in the 1984 boat unit contract . It is clear
that in the 1984 boat unit negotiations Riverway
not only proposed the identical language to that
agreed to by the repair unit negotiators in 1982, but
clearly contemplated its purpose to be to prevent
exactly the situation that occurred here . In this
regard, the lack of discussion as to the meaning of
the agreed upon language in the 1984 boat unit ne-
gotiations could be considered evidence that the
parties understood its meaning to be the same as
that ascribed to the identical language of the par-
ties' 1982 repair unit agreement . Although the
judge makes much of the different negotiating
teams, he does not place sufficient importance on
the fact that the same parties were involved. Fur-
ther, not only was Morello on both the repair unit
and boat unit negotiating teams , he was described
in the record as the chief negotiator for both.
Moreover, the record reflects that Riverway was
represented in both sets of negotiations by the same
two management representatives.
Thus, we interpret the 1984 boat unit contract
consistent with its language and all the relevant
bargaining history bearing on the intent of the par-
ties to preclude the Union from calling sympathy
strikes by boat unit employees in support of a pri-
mary picket line by repair unit employees. We
therefore conclude that the Respondent 's actions in
coercing boat unit employees to honor the repair
unit's picket line in violation of the contractual no-
strike clause by its discipline of the three individ-
uals for failing to do so is a violation of Section
8(b)(1)(A). Mine Workers Local 12419 (National
Grinding Wheel), 176 NLRB 628 (1969).5 See gen-
erally Operating Engineers Local 39 (San Jose Hospi-
tal), 240 NLRB 1122 (1979).
AMENDED CONCLUSIONS OF LAW
Insert the following as paragraph 4 and renum-
ber the subsequent paragraph accordingly:
"4. By disciplining members for failing to strike
in violation of a no-strike agreement Respondent
has committed unfair labor practices within the
meaning of Section 8(b)(1)(A) of the Act."
ORDER
The National Labor Relations Board orders that
the Respondent, Marine Officers Association,
Local Union No. 54 , and its successor Highway,
City and Air Freight Drivers, Dockmen and Help-
ers Local Union No. 600 , both affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL-
CIO, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Filing internal union charges and fining and
suspending members for filing unfair labor practice
charges with the National Labor Relations Board
without first exhausting internal union remedies.
5 Contrary to the Respondent, we find the judge's reliance on Machin-
ists Lodge 284 (Morton Salt Co.), 190 NLRB 208 (1978), to be misplaced.
In that case , the Board held that the respondent union did not violate
Sec. 8(b)(1)(A) by fining members for crossing another union's picket line
where the relevant no-strike clause both permitted individual employees
to honor picket lines and did not prohibit the union from engaging in
sympathy strikes . Here, by contrast, we have found that the Respondent's
no-strike pledge includes sympathy strikes.
In finding that the Respondent violated Sec. 8 (b)(1)(A), we find it un-
necessary under the circumstances to pass on the additional 8(b)(3) alle-
gation because it would not materially affect our remedy here and be-
cause the General Counsel has not addressed arguably inconsistent prece-
dent
TEAMSTERS LOCAL 54 (RIVERWAY HARBOR)
(b) Disciplining members for failing to strike in
violation of a no-strike clause in the parties' agree-
ment.
(c) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Rescind the unlawful internal union charges,
and any fines and suspensions levied against David
Morgenthaler, Thad Hightower, and Ronald Stew-
art, and make them whole for any loss of earnings
and other benefits they may have suffered, plus in-
terest,6 and for any travel or other expenses they
may have incurred as a result of attending the Re-
spondent's executive board trial proceedings on
January 17, 1986, in St. Louis, Missouri.
(b) Remove from its files any references to the
unlawful charges, fines, and suspensions, and notify
Morgenthaler, Hightower, and Stewart in writing
that it has done so and that it will not use those
unlawful charges against them in any way.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all records necessary to analyze the amount of
its liability under the terms of this Order:
(d) Post at its meeting halls, offices, hiring hall,
or any place where it customarily posts notices to
its members in St. Louis, Missouri, copies of the at-
tached notice marked "Appendix."7 Copies of the
notice, on forms provided by the Regional Direc-
tor for Region 14, after being signed by the Re-
spondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to members are customarily posted. Reasona-
ble steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Sign and return to the Regional Director suf-
ficient copies of the notice for posting by River-
way Harbor Service St. Louis, Inc., if willing, at
places where notices to employees are customarily
posted.
6 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 U S C § 6621), shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
1127
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps Respondent has taken to comply.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT file internal union charges against
employees or fine and suspend members for filing
unfair labor practice charges with the National
Labor Relations Board without first exhausting in-
ternal union remedies.
WE WILL NOT discipline members for failing to
strike in violation of a no-strike agreement.
WE WILL NOT in any like or related manner re-
strain or coerce employees in the exercise of the
rights guaranteed in Section 7 of the Act.
WE WILL rescind the unlawful internal union
charges and any fines and suspensions levied
against David Morgenthaler, Thad Hightower, and
Ronald Stewart, and WE WILL make them whole
for any loss of earnings and other benefits they
may have suffered, plus interest, and for any travel
or other expenses they may have incurred as a
result of attending Respondent's executive board
trial proceedings on January 17, 1986, in St. Louis.
WE WILL remove from our files any references
to the unlawful charges, fines, and suspensions, and
WE WILL notify David Morgenthaler, Thad High-
tower, and Ronald Stewart in writing that we have
done so and that we will not use the unlawful
charges against them in any way.
MARINE OFFICERS ASSOCIATION,
LOCAL UNION No. 54, AND ITS SUC-
CESSOR HIGHWAY, CITY AND AIR
FREIGHT DRIVERS, DOCKMEN AND
HELPERS, LOCAL UNION No. 600,
BOTH AFFILIATED WITH INTERNA-
TIONAL BROTHERHOOD OF TEAM-
STERS, -CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA,
AFL-CIO
Keltner Locke, Esq., for the General Counsel.
Jerome J. Duff and `Greg A. Campbell, Esqs., of St Louis,
Missouri, for the-Respondent.
Ray E Breckenridge, Esq., of Clayton, Missouri, for the
Charging Party
1128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge. The
charge in Case 14-CB-6457 was filed by David L. Mor-
genthaler , an individual , on 30 December 1985,1 and the
charge in Case 14-CB-6457-2 was filed on 15 January
1986 by Riverway Harbor Service of St . Louis, Inc.
(Charging Party, Employer, or Riverway). On 7 Febru-
ary 1986, an order consolidated cases, consolidating com-
plaint and notice of hearing was issued alleging that
Marine Officers Association, Local Union No. 54, affili-
ated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (Re-
spondent or Union) violated Sections 8(b)(1)(A) and
8(b)(3) of the Act by unlawfully disciplining union mem-
bers and encouraging members to strike in violation of a
no-strike clause in the contract . 2 An answer thereto was
timely filed by Respondent. A hearing was held before
the administrative law judge on 6 March 1986. Briefs
have been timely filed by Riverway, the General Coun-
sel, and Respondent , which have been considered.
FINDINGS OF FACT
I. EMPLOYER'S BUSINESS
The Employer, a Delaware corporation, is engaged in
the business of repair and assembling of barges for vari-
ous towing companies engaged in interstate transporta-
tion on the Mississippi and Illinois Rivers . During 1985,
Riverway , in the course and conduct of its business oper-
ations, derived gross revenues in excess of $50,000 for
the transportation of barges and vessels in interstate com-
merce and functions as an essential link in the transporta-
tion of freight and commodities in interstate commerce.
The complaint alleges, the answers admit, and I find that
the Employer is an employer within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The Respondent 's business operations include the
cleaning and repair of barges as well as the assembly and
disassembly of barges by deckhands and utilitymen for
various towing companies on the Mississippi and Illinois
Rivers. Those employees in the unit engaged in the
cleaning and repair operations (the repair unit) are repre-
sented by the Respondent. The deckhands and utilitymen
(the boat unit) are also represented • by the Respondent
under a separate contract . The current boat unit contract
runs from 29 October 1984 through 28 October 1987,
i All dates refer to 1985 unless otherwise indicated.
2 By order dated 21 April 1986, Local 600 was named successor to
Local 54 for the purposes of the above-captioned cases.
while the current repair unit contract runs from 21 Octo-
ber 1985 through 21 October 1988.
On or about 17 October, while negotiations were
being conducted on a contract for the current repair unit
contract, Elmer Stokes, president of the Union , called to-
gether the employees in the boat unit . He told them that
negotiations were breaking down and that a strike of
repair unit employees was imminent . He also told them
that he was recommending 100-percent participation in
the strike and that the boat unit contract would protect
them if they chose to honor the repair unit's picket line.
He did not tell them that they would be fined if they
failed to honor the repair unit picket line. Article X, sec-
tion 1 , of the boat unit contract reads:
ARTICLE X-PROTECTION OF RIGHTS
Section 1. It shall not be a violation of this Agree-
ment, and it shall not be cause for discharge or dis-
ciplinary action for an employee to choose to refuse
to enter upon any property involved in a lawful,
primary labor dispute , or to go through or work
behind any lawful, primary labor dispute, or to go
through or work behind any lawful , primary water-
borne picket line, including the lawful, primary
picket lines of any union party to this Agreement,,
and including lawful primary picket lines at the Em-
ployer's place of business . In the event of any such
refusal by a bargaining unit employee, it is also rec-
ognized and agreed by the Union and its members
that the Company shall retain the right to perform
any bargaining unit work, installation, repair, clean-
ing or other requested services at or for the struck
or picketed premises using managerial , supervisory
or other nonbargaining unit personnel, including
newly hired temporary replacement employees who
shall remain outside of the contractual bargaining
unit, in order to accomplish same without such
being interfered with or threatened in any manner
by the Union or its members.
On 21 October, the repair unit employees went on
strike and set up a picket line. All of the boat unit em-
ployees honored the picket line except for David Mor-
genthaler, Thad Hightower, and Ronald L. Stewart.
These three employees worked behind the repair unit
picket line until the strike ended on 25 October. 3
On 22 October, Bruner sent a telegram and an identi-
cal confirming letter to Stokes reading:
Since Local 54 Repair Department employees
struck, A.M. October 21, reports have been re-
ceived that deck employees employed under our
current labor contract with Local 54 have been in-
structed by Deck Department Shop steward to
engage in sympathy strike, under threat of union
fine if they continue to work during current strike
by Repair employees . As a result most Local 54
3 Donald Bruner, president of Riverway, testified that he had observed
boat unit employees participating in the picketing. However , Stokes cre-
dibly testified that he was unaware of such picketing activity by boat unit
employees and did not authorize it.
TEAMSTERS LOCAL 54 (RIVERWAY HARBOR) 1129
deck employees are also engaging in strike and ac-
tively picketing in support of Repair employees'
strike.
All such conduct is clearly in violation of Section
1, Article IX No Strike provisions of our current
Local 54 deckhand labor contract, which remains in
full force and effect.
This notice of such violation is pursuant to Sec-
tion 3, Article IX. We request that you and your
union immediately take all steps necessary to halt
such illegal sympathy strike and picketing activities
by deckhand members who are members of your
union and which are in violation of Section 1, Arti-
cle IX of our current deck labor contract with your
union Request you immediately direct all deck
members to cease illegal strike and return to work.
Please specifically advise this company in writing
setting forth all steps taken by, or to be taken by
your union to halt the the the current illegal sympa-
thy strike by deck employees, as well as steps you
will take to prevent any future recurrence of such
illegal sympathy strike or picketing by such deck
personnel. We shall expect to receive your response
before 4:00 P.M. October 23 1985.
Article IX of the boat unit contract reads:
ARTICLE IX-NO STRIKE OR LOCKOUT
Section 1. The Union and its members expressly
agree that during the term of this Agreement there
shall be no strikes , work stoppages, picketing or
picket boat operations , sympathy or supporting
strikes, boycotts , slowdowns , or any other interfer-
ences with the business of operations of the Compa-
ny.
The Company agrees that it will not lock out its
employees during the term of this Agreement, it
being understood that layoffs or cessation of the
Company's operations in whole or in part for eco-
nomic or other legitimate business reasons shall not
be construed to constitute a lockout in violation of
this section '
Section 2. Any employee or employees who vio-
lates the intent of Section 1 above shall be subject
to immediate discharge or such other form of disci-
plinary action as the Company shall deem to be ap-
propriate , subject to the Grievance or Arbitration
provisions of this Agreement , on the issue of wheth-
er or not the employee or employees discharge or
disciplined did, in fact , participate in any violation
of the said Section 1 of this Article.
Section 3 . In the event any violation of Section 1
of this Article shall occur during the term of this
Agreement , the Company will immediately notify
the Union of such violative action and the Union
shall immediately take all steps necessary and within
its power to halt all such conduct in violation of
this Agreement , and shall send a certified letter to
the Company within twenty -four (24) hours con-
demning the illegal actions in violation of Section 1
of this Article complained of and setting forth all
those steps taken by, or to be taken by, the Union
to halt and/or prevent any recurrence of such ille-
gal actions by its members. In which event, the
Company will not look to the Union for further
relief in the form of damages, unless there.be evi-
dence that the Union, by its officers, agents ,or rep-
resentatives shall have called, authorized, ratified or
condoned any such conduct which may have oc-
curred in violation of Section 1 of this Article.
On 23 October, Bruner sent a second telegram and
confirming letter to Stokes reading:
As we then explained, the Company's final offer
presented to your Repair Department Committee
on October 3 and reiterated during our October 15
meeting at the Federal Mediation offices, was con-
ditioned upon being accepted and ratified without a
work stoppage. You have since advised us that our
Company's final offer was twice rejected by vote of
the Repair group membership and a work stoppage
has resulted since October 21, 1985. As a result, the
Company has now suffered substantial additional
costs which further aggravate our reasons for re-
questing the wage and benefit concessions set forth
in our final offer. In view of the above, unless our
October 3 final offer is nevertheless accepted and
ratified no later than October 25, the Company will
no longer feel it is bound by such offer due to
changed circumstances governing the basis for such
final offer.
We very much regret that the current work stop-
page has resulted. Please advise whether or not
your union authorized or now condones or ap-
proves reported instructions by your shop stewards
or committeemen to our deck members to join the
Repair Department strike or picketing or requiring
them to honor Repair group's picket line under
threat of union fine. If in fact your union has not
authorized or approved such instructions or threats
or fine against deck members who are covered by
our current labor agreement, we request you imme-
diately so advise us in writing and that you similar-
ly clarify and correct your union's position by letter
to all our covered deck employees who are current-
ly particpating in the present strike by Repair De-
partment employees. Thank you for your coopera-
tion in this matter
Stokes did not respond to these communications nor
take any of the corrective action provided under article
IX of the boat unit contract With respect to Morgenth-
aler, Hightower, and Stewart, Stokes determined that
since they had worked behind the picket line, they were
no longer union members in good standing and therefore
he denied them their shares of a union death benefit fund
which had been dissolved and distributed to the other
members.4 In addition, Stokes decided to file charges
4 The death benefit fund had been funded by contributions from mem-
bers made upon the death of a member for^thc benefit of that member's
family
1130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
against these three individuals under various provisions
of the Teamsters International constitution , as well as the
constitution bylaws of respondent . However , Stokes tes-
tified that written charges were not filed until 6 January
1986 because the executive board of the Respondent did
not meet until 17 January 1986 . In the meantime, on 30
December, Morgenthaler filed an unfair labor practice
charge alleging, inter alia, Respondent's withholding of
death benefit reimbursements.
On 6 January 1986 identical written charges were filed
against Morgenthaler , Hightower, and Stewart based pri-
marily on their crossing and working behind an author-
ized picket line. They were also charged with having
filed unfair labor practice charges without first having
exhausted their internal union remedies under the Re-
spondent's constitution and bylaws (section 26 .9). At the
executive board meeting on 17 January 1986 all three
were found guilty on all counts as charged . All three
were advised by letter dated 22 January 1986 that they
were fined $400 and suspended for 30 days with the pro-
vision that both the fine and suspension would be com-
muted if they paid a $25 fine within 7 days from the date
of the letter . At this time the executive board also con-
sidered the matter of death benefit fund distributions, and
checks for their respective shares were given to Mor-
genthaler and Hightower . Stewart's check had already
been sent to him in error , at the time of the general dis-
tribution of checks to members in December 1985.
B. Analysis and Recommendations
The General Counsel alleges that Respondent violated
Section 8(b)(1)(A) of the Act by disciplining Morgenth-
aler, Hightower , and Stewart for working behind the
repair unit picket line since the contract, under the "no
strike" provisions of article IX required them to work
behind the picket line . The second 8(b)(1)(A) violation
derives from that portion of the disciplinary action taken
against Morgenthaler, Hightower, and Stewart for
having filed unfair labor practice charges without first
exhausting their internal union remedies as required by
Respondent's constitution and bylaws.
As to the first contention , the General Counsel argues
that article IX expressly prohibits the Union and its
members from engaging in, inter alia, "sympathy or sup-
porting strikes." The General Counsel reasons that since
the contract thus prohibited Morganthaler, Hightower,
and Stewart from striking, the Union violated Section
8(b)(1)(A) of the Act by disciplining them for refusing to
violate the contract.
Respondent contends that the constraints of article IX
do not apply , rather that article X applies, which gives
employees the right to honor picket lines, specifically
"including the lawful primary picket lines of any union
party to this agreement and including lawful primary
picket lines at the Employer 's. place of business." Thus,
argues the Union, disciplining these employees for cross-
ing the picket line is an internal union matter , not prohib-
ited by the contract and expressly provided for by the
International constitution and the Respondent's constitu-
tion and bylaws.
At first blush, articles IX and X appear to be at odds
since either could be applied to the refusal of these three (1971).
individuals to honor the picket line. However, a careful
analysis of both provisions convinces me that article X is
essentially an exception to the more general "no strike"
restraints of article IX. Article X appears to have envi-
sioned this type of situation , i.e., where one unit is on
strike and picketing while another unit is not. Article X
states that "It shall not be a violation of this Agreement"
which presumably includes article IX , nor a cause for
discipline by Riverway if an employee chooses either not
to enter property involved in a lawful primary labor dis-
pute or to work behind a lawful primary picket line.
Moreover, the language of article X expressly covers sit-
uations under which the primary picket line belongs to
"any union party to this Agreement," i.e., the Respond-
ent, and expressly includes "lawful primary picket lines
at the Employer 's place of business ." Thus, apart from
the confusion created by article IX, it is apparent that ar-
ticle X should apply and that Morgenthaler , Hightower,
and Stewart would not have been violating the agree-
ment and could not have been disciplined by Riverway
for honoring the picket line.
On the other hand, the language of article IX, "No
Strike or Lockout," prohibits, for the most part, primary
strikes in exchange for Riverway's agreement not to lock
out its employees . It is true that adding "sympathy or
supporting strikes," to the list of prohibited actions is
confusing . Nevertheless, read in context with article X,
section I, the more reasonable interpretation is that arti-
cle IX applies in those circumstances where there is no
lawful primary picket line at Riverway 's place of busi-
ness and the strike action taken is primary in nature.
Such a violation might occur, for example , where in the
absence of a primary picket line, the boat unit would
engage in a sympathy strike or some other type of pick-
eting activity in support of some bargaining demand or
position being taken by the repair unit against Riverway.
The scenario can be expanded to illustrate violations if
either the repair unit or the boat unit took some sympa-
thetic or supporting action on behalf of each other or on
behalf of any other union or employee group pressuring
Riverway for whatever reason, however, only in circum-
stances when no primary picket line had been estab-
lished.
Thus, having concluded that article X rather than arti-
cle IX applies, it is clear that Morganthaler , Hightower,
and Stewart were not obliged to cross the picket line,
but had the contractual right to honor the picket line,
free from a discharge or disciplinary action by River-
way. The Union urged the boat unit employees not to
work, as the contract allowed , and fined them when they
did so. It does not violate Section 8(b)(1)(A) for a union
to urge and solicit employee action consistent with a
contractual right or to bring charges against unit-member
employees to induce them to exercise that right. As the
Board held in Morton Salts under similar circumstances,
In the instant case, as noted above, since the em-
ployees were not being compelled by the fines to
participate in a violation of the no-strike clause, as
5 Machinists Oakland Lodge 284 (Morton Salt Ca), 190 NLRB 208
TEAMSTERS LOCAL 54 (RIVERWAY HARBOR)
they were protected from such a breach by the
terms of the clause, the fines merely served to
induce conduct on the part of the individual em-
ployees which they could engage in with impunity
under the terms of the contract as well as under
Section 7 of the Act in the absence of any restric-
tive covenant in the parties' contract. [Id. at 210.]
Accordingly, I conclude that Respondent did not violate
Section 8(b)(1)(A) of the Act by disciplining Morganth-
aler, Hightower, and Stewart for crossing and working
behind the repair unit picket line.
The General Counsel also alleges that by encouraging
and inducing boat unit employees to strike in violation of
the no-strike provisions of the contract, Respondent was
bargaining in bad faith with Riverway in violation of
Section 8(b)(3) of the Act. However, I have concluded
that article X permitted employees to honor the picket
line here, the Union was not obliged to comply with sec-
tion IX of the contract or to take any of the corrective
action called for therein, and no 8(b)(3) violation can be
predicated upon its failure to do so. Neither can an
8(b)(3) violation be predicated on Respondent's disciplin-
ing of the three boat unit employees As noted above,
the Union is not precluded from disciplining employees
who decide not to honor a picket line where the con-
tract gives them the right to refuse to honor it, and no
8(b)(3) violation can be predicated thereon.6
However, as the Charging Party concedes, in its brief,
it was a violation of Section 8(b)(1)(A) of the Act to
charge and fine these individuals because of the unfair
labor practice charge filed by Morgenthaler without first
having exhausted internal union remedies. Such restric-
tions on employee access to the processes of the NLRB
violates the Act. NLRB v. Shipbuilders, 391 U.S. 418
(1968); Ironworkers (Walker Construction Co.), 277 NLRB
1071 (1985); Laborers Northern California Council (Hay-
ward Baker Co.), 275 NLRB 278 (1985)
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations
of the Employer described in section I, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(b)(1)(A)
of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
e Temporary withholding of the death benefit fund disbursements to
Morgenthaler and Hightower occurred in mid-December, prior to Mor-
genthaler filing any charges with the NLRB, and related only to disci-
pline for having worked behind the picket line, which discipline I have
concluded was not unlawfully imposed Accordingly, remedial relief as
to this item is not appropriate and, in any event, full payment has been
made to all three individuals
1131
While I have determined that Respondent did not vio-
late the Act by disciplining Morgenthaler, Hightower,
and Stewart for having worked behind the repair unit
picket line, Respondent concedes, and I find, that Re-
spondent did violate the Act by disciplining these three
individuals for having filed charges with the National
Labor Relations Board without exhausting their internal
union remedies. Since Morgenthaler, Hightower, and
Stewart were found guilty on all counts, including the
unlawful charge of filing a charge with the National
Labor Relations Board, it is not possible to isolate for re-
medial purposes, Respondent's lawful disciplinary action
from its unlawful disciplinary action. Under these cir-
cumstances, I find it appropriate, in the interests of full
remedial relief, to require Respondent to make Mor-
genthaler, Hightower, and Stewart whole to the extent
not already accomplished, for any losses they may have
suffered as a result of Respondent's unfair labor prac-
tices, and for any travel or other expenses these three in-
dividuals may have incurred by attending the Respond-
ent's executive board trial proceedings on 17 January
1986 in St. Louis, Missouri. Backpay shall be computed
as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in Florida Steel Corp.,
231 NLRB 651 (1977). See generally Isis Plumbing Co.,
138 NLRB 716 (1962).
On the basis of the foregoing findings of fact and the
entire record in this case, I make the following
CONCLUSIONS OF LAW
1. Marine Officers Association, Local Union No. 54,
and its successor Highway, City and Air Freight Driv-
ers, Dockmen and Helpers, Local Union No. 600, both
affiliated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
2. Riverway Harbor Service St. Louis, Inc. has been at
all times material herein an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
3. By filing internal union charges, fining and suspend-
ing David Morgenthaler, Thad Hightower, and Ronald
Stewart for filing unfair labor practice charges with the
National Labor Relations Board without first exhausting
intraunion remedies, Respondent has committed unfair
labor practices within the meaning of Section 8(b)(1)(A)
of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted from publication ]
Keltner Locke, Esq., for the General Counsel.
Jerome J. Duff and Greg A. Campbell, Esqs., of St . Louis,
Missouri , for the Respondent.
Ray E. Breckenridge, Esq., of Clayton , Missouri , for the
Charging Party.
1132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
PETER E . DONNELLY, Administrative Law Judge. On
27 June 1986, I issued a decision in the above-captioned
case, concluding, inter alia, that Marine Officers Associa-
tion, Local Union No. 54, and its successor Highway,
City and Air Freight Drivers, Dockmen and Helpers,
Local Union No. 600 , both affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (Union or Respondent) did not
violate Section 8(b)(1)(A) of the Act by disciplining
three union members for crossing and working behind a
picket line at Riverway Harbor Service St. Louis, Inc.
(Employer or Charging Party). In reaching this conclu-
sion it was necessary to compare two conflicting provi-
sions of the 1984-1987 contract between the Employer
and the Union covering deckhands and utilitymen (the
boat unit). Those provisions were article IX "NO
STRIKE OR LOCKOUT" wherein the Union "and its
members" agreed , inter alia, that there shall be no "sym-
pathy or supporting strikes" during the term of the
agreement and provided discharge for employees in vio-
lation thereof, and article X "PROTECTION OF
RIGHTS" providing, inter alia, that "it shall not be a
cause for discharge or disciplinary action" for an em-
ployee to refuse to cross or work behind a lawful pri-
mary picket line. As noted above, my conclusion, based
on the rationale appearing in that decision , was that arti-
cle X applied; the three employees thus were not obliged
to cross the picket line; that the Union did not violate
Sections 8(b)(1)(A) or 8(b)(3) of the Act either by solicit-
ing and urging employees not to cross the picket line or
by disciplining the three employees who crossed and
worked behind the picket line. '
On 13 February 1987 , the Board remanded the case to
the administrative law judge
for the limited purposes of reopening the record to
receive evidence concerning the bargaining history
of the collective-bargaining agreement between the
Charging Party Riverway and Respondent covering
employees in the boat unit and for the issuance of a
supplemental decision in light of such additional
evidence.
I. FACTS
As noted in the original decision, the Employer 's busi-
ness operations include the cleaning and repair of barges
as well as the assembly and disassembly of barges by
deckhands and utility men for various towing companies
on the Mississippi and Illinois Rivers . Those employees
in the unit engaged in the cleaning , and repair operations
(the repair unit), are represented by, tulle Respondent. The
deckhands and utilitymen , or boat.; unit, are also repre-
sented by the Respondent under a separate contract. The
current boat unit contract runs from 29 October 1984
through 28 October 1987 , while the current repair unit
contract runs from 21 October 1985 through 21 October
1988.
It appears that until 1978 both the boat unit contract
and the repair unit contract had the same expiration
dates. In 1978 , in order to establish different expiration
dates , Respondent and Employer negotiated the 3-year
contract for the boat unit and the 4-year contract for the
repair unit, expiring in 1981 and 1982 , respectively.
In 1981 , after some unsuccessful efforts to negotiate a
new contract for the boat unit , that contract expired on
25 July 1981 and the boat unit employees struck on 1
August 1981 . The entire repair unit refused to cross the
picket line and repair unit employees were paid what
were characterized as "strike " or "out-of-work" benefits
by the Union . The Employer protested this action to the
Union as a strike by the repair unit in violation of Article
IX of the repair unit contract , apparently without suc-
cess or satisfaction ; the Union relying on article X to jus-
tify its action in honoring the boat unit picket line.
Thus, in 1982 , when the repair unit contract expired,'
the Employer was concerned in negotiations about pre-
venting any work stoppage by boat unit employees like
what had occurred in 1981 . At these negotiations the
repair unit was represented by Joe Morello , secretary-
treasurer of the Union, Attorney Earl Wilburn, and a ne-
gotiating committee of repair unit employees . The Em-
ployer was 'represented by, among others , Ray Brecken-
ridge, attorney, and Harold Bruner , vice president.
Initially the Employer proposed the elimination of arti-
cle X "Protection of Rights ." According to Bruner, the
Union became "rather upset that we were taking all the
l ,
i The 1978-1982 repair unit contract , then in effect read:
ARTICLE X-NO STRIKE OR LOCKOUT
Both parties hereto agree that there shall be no strikes , walkouts,
cessation or stoppage or slow downs of work , picketing, sit-down
strikes, - br other interference with the operations of the Company, or
lockouts :by the company during the life of this Agreement. ,
This Agreement is a guarantee that there shall be neither strikes or
lockouts and that all disputes shall be settled as provided in ARTI-
CLE VII and VIII.
This ARTICLE is independent of Sections 1 and 2 of ARTICLE
-X in its entirety.
ARTICLE-PROTECTION OF RIGHTS
Section 1. Picket Line-It shall not be a violation of'this Agree-
ment, and it shall not be cause for discharge or disciplinary action in
the event an Employee refuses to enter upon any property involved
in a primary labor dispute , or refuses to go through or work behind
any primary , water-borne picket line, including the primary picket
line of any Union party to this Agreement.
The 1978-1981 boat unit contains an identical article IX, however arti-
cle X reads:
ARTICLE X-PROTECTION OF RIGHTS
Section 1. Pecker Line-It shall not be a violation of this Agree-
ment, and it shall not be cause for discharge or disciplinary action in
the event an employee refuses to enter upon any property involved
in a primary labor dispute, or refuses to go through or work behind
any primary , water-borne picket line, including the primary picket
lines at the Company's place of business.
Section 2 Struck Goods-It shall not be a violation of this Agree-
ment and it shall not be a cause for discharge or disciplinary action if
any employee refuses to perform any service which his Employer
performs by an arrangement with an employer or person whose em-
ployees are on strike, and which service , but for such strike, would
be performed by the employees of the Employer or person on strike.
This entire Article X, Sections 1 and 2, shall not be subject to the
provisions of Article VII, Grievance Procedure , or Article VIII, Ar-
bitration Committee.
TEAMSTERS LOCAL 54 (RIVERWAY HARBOR)
meat of the contract out or-taking away all their
rights." In addition, according to Breckenridge, Wilburn
stated that the Teamsters International Constitution "re-
quired that there be some recognition of an individual's
right not to cross a picket line. That [sic] they would not
agree to completely delete the language of the old Arti-
cle X protection of rights." Thus the parties turned their
attention to "Article IX No Strike or Lockout." In ex-
plaining the Employer's position, Breckenridge testified,
But what we did object to and what we wanted a
contractual commitment would not occur was a sit-
uation such as occurred during this 1981 boat strike
where the Union under threat of fine required mem-
bers of the other [repair] bargaining unit to not only
honor a picket line but participate in a strike.
According to Breckenridge, the Union agreed to protect
the Employer from that situation and it was therefore
agreed to add "sympathy and supporting strikes" to the
prohibitions already set out in article IX, section 1. In
testimony concerning the reach of article X, the record
discloses the following exchange concerning those cir-
cumstances wherein an employee would be able to assert
the right set out in article X not to cross a picket line:
JUDGE DONNELLY: Well let me ask you this.
What-are there any circumstances that you can en-
vision, type of strike, where an Employer-an em-
ployee could assert the rights that are set out in Ar-
ticle 10?
THE WITNESS: Yes.
JUDGE DONNELLY• What would that be?
THE WITNESS' Very simply, Your Honor. If they
made an individual choice of their own volition
whether it be for fear of violence or whatever that
would be protected still. What was being prohibited
was a concerted Union directed work stoppage of
the unrelated group and that was expressly agreed
to by the Union and its counsel in agreeing to the
changes in Article 9 which was a quid pro quo for
our agreeing to leave in that limited exception to
recognize the individual's right to make such a vol-
untary election.2
In addition, a new section 2 to article IX subjected
employees in violation to discharge and a new section 3
obliges the Union to restrain its members from engaging
in the prohibited activities. Thus, article IX of the 1982-
1985 repair unit contract reads:
ARTICLE IX-NO STRIKE OR LOCKOUT
Section 1 The Union and its members expressly
agree that during the term of this Agreement there
shall be no strikes , work stoppages , picketing or
picket boat operations , sympathy or supporting
strikes, boycotts , slowdowns , or any other interfer-
ences with the business or operations of the Compa-
ny.
The Company agrees that it will not lock out its
employees during the term of this Agreement, it
2 Respondent called no witness to testify about the 1982 negotiations
1133
being understood that layoffs or cessation of the
Company's operations in whole or in part for eco-
nomic or other legitimate business reasons shall not
be construed to constitute a lockout in violation of
this section.
Section 2. Any employee or employees who vio-
lates the intent of Section 1 above shall be subject
to immediate discharge or such other form of disci-
plinary action as the Company shall deem to be ap-
propriate, subject to the Grievance or Arbitration
provisions of this Agreement, on the issue of wheth-
er or not the employee or employees discharged or
disciplined did, in fact, participate in any violation
of the said Section 1 of this Article.
Section 3. In the event any violation of Section 1
of this Article should occur during the term of this
Agreement, the Company will immediately notify
the Union of such violative action and the Union
shall immediately take all steps necessary and
within its power to halt all such conduct in viola-
tion of this Agreement, and shall send a certified
letter to the Company within twenty-four (24)
hours condemning the illegal actions in violation of
Section 1 of this Article complained of and setting
forth all those steps taken by, or to be taken by, the
Union to halt and/or prevent any recurrence of
such illegal actions by its members. In which event,
the Company will not look to the Union for further
relief in the form of damages, unless there be evi-
dence that the Union, by its officers, agents or rep-
resentatives shall have called, authorized, ratified or
condoned any such conduct which may have oc-
curred in violation of Section 1 of this Article
And article X reads:
ARTICLE X-PROTECTION OF RIGHTS
Section 1. It shall not be a violation of this Agree-
ment, and it shall not be cause for discharge or dis-
ciplinary action for an employee to choose to refuse
to enter upon any property involved in a lawful,
primary labor dispute, or to go through or work
behind any lawful, primary picket line, including the
lawful, primary picket lines of any union party to
this Agreement, and including lawful primary
picket lines at the Employer's place of business. In
the event of any such refusal by a bargaining unit
employee, it is also recognized and agreed by the
Union and its members that the Company shall
retain the right to perform any bargaining unit
work , installation , repair, cleaning or other request-
ed services at or for the struck or picketed premises
using managerial , supervisory or other nonbargain-
ing unit personnel, including newly hired temporary
replacement employees who shall remain outside of
the contractual bargaining unit, in order to accom-
plish same without such being interfered with or
threatened in any manner by the Union or its mem-
bers
In 1984, the 1981-1984 boat unit contract was renego-
tiated. At those negotiations the Union was represented
1134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
by a different attorney, Jerome Duff, Morello, and a ne-
gotiating committee of boat unit employees. Howard
Baker , a member of the union negotiating committee, tes-
tified that at the outset the Employer proposed the elimi-
nation of article X but that Duff refused, citing provi-
sions of the Teamsters International Constitution which
provided for the right to honor picket lines. Baker also
testified that there was little discussion of either article
IX or article X and that there was no discussion about
the repair unit negotiations in 1982. Baker testified he felt
that since article X was being left in the contract, the
employees were retaining the right to honor a picket
line. Elmer Stokes, a negotiator and business agent for
the Union, testified that he raised the question with Duff
who told him that despite article IX "you still have the
protection of rights" in article X. Stokes testified that ar-
ticle IX was not discussed or negotiated but simply
agreed to because the Employer wanted "the same lan-
guage in both contracts and they had it in the repair con-
tract and they wanted to update the harbor boat oper-
ation contract to the repair contract." Stokes also testi-
fied that there was no reference to either the strike in
1981 or the repair unit negotiations in 1982 and that
nothing was said to indicate that the contract agreed
upon would prohibit boat unit employees from honoring
a picket line established by the repair unit. The testimony
of both Baker and Stokes concerning 1984 boat unit con-
tract negotiations is essentially undisputed, and I credit
these accounts
II. ANALYSIS AND RECOMMENDATIONS
In reviewing these two contract provisions, one might
argue that the "sympathy or supporting strike" language
in article IX was designed only to prevent union induce-
ment of employees to strike, were not for the fact that
the prohibition against such strikes runs to "union mem-
bers" and provides for "discharge of employees" who
violate article IX's prohibition Thus, whether wittingly
or not, the parties negotiated a real conflict into the con-
tract by negotiating contract language in article IX pro-
hibiting employees from engaging in sympathy strikes
while giving employees the right to honor picket lines in
article X.
Thus a real conflict exists, and a review of the 1984
boat unit contract negotiations is in order in determining
what the parties intended by negotiating such conflicting
provisions. While this matter concerns only the boat unit
contract negotiations of 1984, for which this matter was
remanded, a review of the 1982 repair unit provides
some relevant background. As noted above, the boat unit
strike in 1981 was honored by all the employees of the
repair unit. The Union urged and supported this action
and the repair unit employees were paid "out-of-work
benefits." The Employer wanted `to prevent this from
happening again , and so when the repair unit contract
came up for negotiation in 1982, the Employer sought
relief. At first, it proposed eliminating article X This
would eliminate the contractual right of employees to
refuse to cross lawful primary picket lines without being
discharged or disciplined by the Employer This ap-
proach was rejected by the Union, particularly since it
was in conflict with a provision of the Teamsters Inter-
national Constitution Another approach was, however,
agreed upon. This was to strengthen the language of arti-
cle IX to add a prohibition against the Union or its mem-
bers from engaging in sympathy strikes and providing
discharge for those employees who violated article IX.
Herein lies the conflict noted above, since the right to
honor a picket line given in article X was to be eliminat-
ed by the language of article IX prohibiting sympathy or
supporting strikes. Nevertheless, this is what the parties
agreed upon. In attempting to discern the intent of the
parties, we see that the Union felt that the right to honor
a picket line was still protected by article X, despite the
provisions of article IX The Employer also felt that arti-
cle X was still viable In these circumstances, a careful
reading of the record convinces me that the parties in-
tended article IX of the 1982 repair unit contract to pro-
hibit the Union from calling sympathy strikes by repair
unit employees in support of a primary strike by boat
unit employees but that the right afforded to repair unit
employees 'under article X to honor a legal picket line es-
tablished by the boat unit employees was not affected,
despite the,obviously conflicting language of article IX.
However, as the terms of the remand suggest, it is not
what the parties intended to negotiate in 1982 that bears
on the issue, but rather what the parties intended to ne-
gotiate 'in 1984. This is not a situation where successive
contracts cover the same unit of employees. It is signifi-
cant, in this regard, to bear in mind that while Morello
was present as a union negotiator in 1984 , as he had been
in 1982, that these were boat unit negotiations; a different
contract covering a different unit of employees. The ne-
gotiating committee was composed of boat unit employ-
ees and were represented in negotiations by a different
lawyer
An examination of these negotiations discloses that the
boat unit' rejected the Employer's proposal to eliminate
article X. Thereafter, there appears to have been little
discussion concerning article IX prior to its adoption.
The union attorney assured the union negotiators that
the right 'of employees to honor picket lines was still in
tact under article X. However, the Union did agree to
accept article IX apparently as an accommodation to the
Employer's desire to have the same language of article
IX in both contracts, also to retain article X with a new
"struck goods" provision.3
Apart from the Union's determination to retain article
X, there was no significant discussion concerning the en-
actment of article IX or article X. Thus there was really
little said from which the intent of the parties thereon
can be determined. The 1982 negotiations involved a dif-
ferent unit, different contracts, different negotiating com-
mittees, and it would be pure conjecture to assume that
different groups have the same intent without some pro-
bative supporting evidence, not present in the instant
case. I 'cannot impute such intent from one independent
group to another.
In these circumstances, I conclude that the 1984 nego-
tiations between the parties concerning the boat unit con-
3 A "struck goods" provision appears in prior boat unit contracts and
again in the 1984 contract in expanded form The repair unit contract
contains no "struck goods " provision
TEAMSTERS LOCAL 54 (RIVERWAY HARBOR) 1135
tract are insufficient to support the conclusion that the
parties to those negotiations intended that article IX be
construed to require boat unit employees to work behind
the repair unit picket line in October of 1985
I further conclude, as set out more fully in the original
decision that article X governs rather than article IX and
that Morgenthaler, Hightower, and Stewart were not
obliged to cross and work behind the repair unit picket
line and that the Union did not violate Sections
8(b)(1)(A) or 8(b)(3) of the Act by urging and soliciting
boat unit employees to exercise that contract right and
disciplining Morgenthaler, Hightower, and Stewart when
they declined to do so and worked behind the repair unit
picket line. In short, nothing in the intent of the parties
to the 1984 negotiations affects the conclusions reached
in the original decision herein and the Conclusions of
Law, Remedy, and recommended Order contained there-
in are unaffected and incorporated herein.