McLean Trucking Co.

National Labor Relations Board - Board Decisions

Apr 21, 1969

175 N.L.R.B. 440 (N.L.R.B. 1969)

440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McLean Trucking Company and William E. Ellis.
Case 9-CA-4256
April 21, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On July 5, 1968, Trial Examiner Louis Libbin
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in
certain alleged unfair labor practices and
recommending that the complaint herein be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Decision, together
with a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
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 and brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified below.
The Trial Examiner recommended that we
withhold our jurisdiction to resolve the unfair labor
practice issues posed by the Respondent's discharge
of garage mechanic Bryant in view of the
availability of contractual grievance-arbitration
machinery for the settlement of the underlying
controversy; the agreement of the parties to the
contract to use that machinery as a basis for settling
this very dispute; and the fact that the basic
controversy in Bryant's case was the same as that
involved in the cases of the 12 over-the-road drivers
as to whom an arbitration award has already been
issued. However, it is undisputed that that Bryant's
case is not now pending arbitration, the unfair labor
practice issue has already been fully lititaged and is
now before us for decision, and no issue is involved
which only an arbitrator would be competent to pass
upon. In these circumstances we do not believe that
it would effectuate statutory policy to defer Bryant's
case for arbitration, and we shall, therefore, resolve
the unfair labor practice issues on the merits.' Our
findings follows.
'Cf Producers Grain Corp, 169 NLRB No 68, Hoerner- Waldorf Paper
Products Co, 163 NLRB No 105
Member Brown does not concur in his colleagues ' decision on this point
Rather, in agreement with the Trial Examiner , Member Brown believes the
issue of Bryant's discharge is one which should appropriately be referred
for resolution to the contractual grievance- arbitration machinery in the
circumstances of this case See Member Brown's dissent in Producers
Grain Corp , supra, and his separate concurring opinion in Cloverleaf
The record shows, and the Trial Examiner found,
that the Respondent discharged Bryant on or about
April 13, 1967, for participating in the garage
mechanics' strike which began on April 12. The
Respondent contends that it did not thereby violate
the Act because the strike occurred in violation of
the no-strike provisions contained in Article 20 of
the collective-bargaining agreement between the
Respondent and the Union covering the garage
mechanics, thus rendering Bryant's strike activity
unprotected. Although conceding that the bargaining
contract prohibited strike activity during its effective
term, the General Counsel contends, inter alia, that
the contract's effective term expired on March 31,
1967, and, therefore, there was no contract in effect
on the date here critical. We do not agree with this
contention of the General Counsel.
It is true that the contract describes March 31,
1967, as its terminal date. However, in Article 40
thereof the parties expressly agreed in pertinent part
that all provisions of the contract would be
"continued in full force and effect and extended
from the termination date [thereof] to such time as
modifications are agreed upon or negotiations are
terminated . " It is undisputed that neither of
these two conditions had yet occurred when the
garage mechanics struck on April 12. In these
circumstances, we find, in agreement with the
Respondent, that the April 12 strike was in breach
of the no-strike clauses of the then still effective
collective-bargaining agreement and was, therefore,
an unprotected strike.' We conclude, accordingly,
that the Respondent did not violate Section 8(a)(3)
and (1) of the Act, as alleged, by discharging Bryant
for his participation in that strike.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
Division of Adams Dairy Co. 147 NLRB 1410
'General Counsel also contends in his exceptions that no operative effect
should be given to the no-stoke provisions of the contract because the
Respondent committed an unfair labor practice by laying off the garage
mechanics on April 9, 1967, and breached the contract thereafter by
refusing to agree that the garage mechanics should be paid for the work
lost by them as a result of the layoff This contention , however, was
asserted for the first time in the General Counsel's brief The complaint
was not framed on any theory that the layoff was unlawful or that the
strike which was connected with it was an unfair labor practice strike
Indeed , all parties to the proceeding litigated the issues involved on the
assumption that the layoff was an economic consequence of Respondent's
permissible lockout of the drivers , and that the strike of April 12 was
economic in character In these circumstances , we do not regard the
question now belatedly raised by the General Counsel as being before us
for decision
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Louis LIBBIN, Trial Examiner: Upon charges filed on
175 NLRB No 66
MCLEAN TRUCKING COMPANY
April 18 and May 15, 1967, by William Ellis, an
individual, the General Counsel of the National Labor
Relations Board, by the Regional Director for the Ninth
Region (Cincinnati, Ohio), issued a complaint, dated
February 19, 1968, against McLean Trucking Company,
herein called the Respondent. With respect to the unfair
labor practices, the complaint alleges, in substance, that
on or about April 13, 1967, Respondent discharged and
thereafter refused to reinstate 13 named employees
because of their union and concerted activities in violation
of Section 8(a)(I) and (3) of the Act. In its duly filed
answer, Respondent admits that the named employees
were in fact discharged, denies all unfair labor practice
allegations, and affirmatively avers that deference should
be given to the arbitration awards and the agreement of
the dischargees' exclusive bargaining representative and
the complaint be dismissed.
Pursuant to due notice, a hearing was held before Trial
Examiner Louis Libbin at Cincinnati, Ohio, on April 17
and 18, 1968. The General Counsel and the Respondent
were represented at the hearing and were given full
opportunity to participate therein, to introduce relevant
evidence, to examine and cross-examine witnesses, and to
argue orally on the record. On June 10, 1967, the General
Counsel and the Respondent filed briefs, which I have
fully considered.
Respondent's motion, made at the opening of the
hearing and upon which I reserved ruling, and also
renewed in its brief, to dismiss the complaint in view of
the arbitration awards and the grievance-arbitration
procedures established by agreement between Respondent
and the dischargees' exclusive collective-bargaining
representative, is hereby granted for the reasons
hereinafter stated.
Upon the entire record in the case,' and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a North Carolina corporation engaged as
a common carrier in the furnishing of interstate motor
freight transportation services between several States of
the United States, maintains terminals at various locations
in said States including its terminal in Hamilton County,
Ohio, the only installation involved in this proceeding.
During the 12 months prior to the issuance of the instant
complaint, a representative period, Respondent's gross
income from its performance of motor freight
transportation services between several States was in
excess of $50,000.
Upon the above admitted facts, I find, as Respondent's
answer admits, that Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, the record
shows, and I find, that Truck Drivers, Chauffeurs,
Warehousemen and Helpers Local Union No. 100, an
affiliate of International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
herein called the Union, is a labor organization within the
'Obvious errors in the typewritten transcript of testimony are noted and
corrected
meaning of Section 2(5) of the Act
111. THE ALLEGED UNFAIR LABOR PRACTICES
441
The complaint alleges a violation of the Act in the
discharge of 13 named employees because of their union
and concerted activities . The primary issues in this case
are (1) whether the award of an arbitration panel
sustaining the discharges should be honored and the
complaint be dismissed without deciding the merits of the
controversy , and (2 ) if the award is not honored , whether
the employees were discharged for engaging in a protected
concerted activity in violation of the Act.
A Background
Respondent is a common carrier, with its headquarters
in Winston-Salem, North Carolina. Among the many
terminals which it maintains at various locations
throughout the country is the one located at Sharonville,
Ohio, a suburb of Cincinnati, which is the only one
involved in this proceeding. Respondent operated about
150 trucks at this terminal. Among the officers and agents
of Respondent involved in this proceeding are E. J.
Ehrhardt, vice president with jurisdiction over the
Sharonville terminal and with his office in
Winston-Salem, North Carolina; T W. Andrews, Western
Regional vice president; W. E. Burcham, District
Operations manager; Dale Alfred, Director of Labor
Relations for the Western Region, including the
Cincinnati area; and John Grigsby, attorney for
Respondent from Richmond, Virginia.
The Respondent's employees at the Sharonville
terminal are divided into three separate units; one unit is
comprised of the over-the-road drivers, another consists of
the local cartage or city employees; and the third unit
includes all the garage mechanics. The Union, Teamsters
Local Union No. 100, is the exclusive collective
bargaining agent for the employees in each of these units.
There were about 44 employees in the garage unit, and
between 300 and 400 in the other two units. Of the 13
dischargees alleged in the complaint, one was a mechanic
in the garage unit, eight were over-the-road drivers in the
over-the-road unit, and four were employed in the local
cartage or city unit.
The Union has jurisdiction over all the over-the-road
and local cartage employees under Teamsters contracts
covering about 5,000 employees and about 150 companies
in the Cincinnati area. Among the officers and agents of
the Union who participated in the controversy are
President George Starling and Business Agent Ira Farmer
who serviced the Local at the Sharonville terminal.
Fitzsimmons was the president of the International Union.
The stewards for the three units were as follows: Carl
Phillips, for the over-the-road drivers unit; William
Hawkins, assistant road steward; George Cooper, for the
local cartage or city unit; William Ellis, the Charging
Party herein, alternate or assistant steward for local
cartage or city unit; and Dale Naylor, steward for the
garage unit.
The Respondent and the Union had separate
collective-bargaining agreements, which were in effect in
1967, for each of the three units. The over-the-road and
the local cartage agreements were negotiated nationally in
Washington, D. C. by Trucking Employers, Inc. (T.E.I.),
on behalf of the employers including Respondent, and the
National Over-the-Road and City Cartage Policy
Negotiating Committee of the International Teamsters
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union on behalf of all the local unions. The garage
contracts were negotiated locally in Cincinnati, and the
practice was to defer such negotiations until after the
national agreements had been reached because the new
wage rates and other benefits for the garage employees
were dependent upon those negotiated in the national
negotiations in Washington, D.C.
B. Relevant Contractual Provisions in Effect in 1967
1. The "over-the-road" and "local cartage"
agreements
Respondent's employees in the over-the-road unit were
covered by the National Master Freight Agreement and
Central States Area Over-the-Road Supplemental
Agreement with Ohio Rider, hereinafter sometimes
referred to as the "over-the-road agreement"; the
employees in the local cartage unit were covered by the
National Master Freight Agreement and Central States
Area Local Cartage Supplemental Agreement, hereinafter
sometimes referred to as the "local cartage agreement."
The National Master Freight Agreement in both of the
foregoing agreements is identical. In the preamble to the
Central States Area Over-the-Road Motor Freight
Supplemental Agreement (p. 53) and the Local Cartage
Supplemental Agreement (p. 53), the parties agree that
the supplemental agreements are "part of the National
Master Freight Agreement" and "shall prevail over the
specific terms of that Agreement only to the extent
specifically provided herein."
Section 1, article 9 A, of the National Master Freight
Agreement (p. 29) provides as follows.
It shall not be a violation of this Agreement 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 labor dispute or refuses to go through or
work behind any picket line, including the picket line of
Unions party to this Agreement and including picket
lines at the Employer's place or places of business.
Article 43, section 1, of the over-the-road agreement
provides in pertinent part as follows:
The Unions and the Employers agree that there shall be
no strike, lockout, tie-up, or legal proceedings without
first using all possible means of a settlement, as
provided for in this Agreement, and in the National
Master Agreement, if applicable, of any controversy
which might arise ....
Article 43, section 2, of this same supplemental
agreement also provides in pertinent part as follows:
It is further mutually agreed that the Local Union will,
within two weeks of the date of the signing of this
Agreement, serve upon the Company a written notice,
which notice will list the Union's authorized
representatives who will deal with the Company, make
commitments for the Union generally, and in particular
have the sole authority to act for the Union in calling
or instituting strikes or any stoppages of work, and the
Union shall not be liable for any activities unless so
authorized. It is further agreed, that in all cases of an
unauthorized strike, slow-down, walk-out, or any
unauthorized cessation of work in violation of this
Agreement, the Union shall not be liable for damages
resulting from such unauthorized acts of its members.
While the Union shall undertake every reasonable
means to induce employees to return to their jobs
during any such period of unauthorized stoppage of
work mentioned above, it is specifically understood and
agreed that the Company during the first twenty-four
(24) hour period of such unauthorized work stoppage
shall have the sole and complete right of reasonable
discipline short of discharge, and such Union members
shall not be entitled to or have any recourse to any
other provisions of this Agreement. After the first
twenty-four (24) hour period of such stoppage and if
such stoppages continues, however, the Company shall
have the sole and complete right to immediately
discharge any Union member participating in any
unauthorized strike, slow-down, walk-out, or any other
cessation of work, and such Union members shall not
be entitled to or have any recourse to any other
provision of this Agreement .. [Emphasis supplied ]
Article 43, sections 1 and 2, of the local cartage
agreement contain identical provisions.
Article 44 of both the over-the-road and local cartage
agreements provides in pertinent part as follows:
The Employer shall not discharge nor suspend any
employee without just cause, but in respect to discharge
or suspension shall give at least one (1) warning notice
of the complaint against such employee to the
employee, in writing, and a copy of the same to the
Union affected. . . . Discharge must be by proper
written notice to the employee and the Union affected.
Article 57, section 1, of the local cartage agreement
provides in pertinent part as follows:
Ninety percent (90%) of the regular employees shall be
guaranteed forty (40) hours work or pay....
The over-the-road agreement also contains provisions
guaranteeing pay.
Article 37, sections 1, 2 and 3, of the National Master
Freight Agreement provide as follows:
This Agreement shall be in full force and effect from
February 1, 1964, to and including March 31, 1967, and
shall continue from year to year thereafter unless
written notice of desire to cancel or terminate the
Agreement is served by either party upon the other at
least sixty (60) days prior to date of expiration.
Where no such cancellation or termination notice is
served and the parties desire to continue said
Agreement but also desire to negotiate changes or
revisions in this Agreement, either party may serve
upon the other a notice at least sixty (60) days prior to
March 31, 1967, or March 31st of any subsequent
contract year, advising that such party desires to revise
or change terms or conditions of such Agreement.
[Emphasis supplied.]
Revisions agreed upon or ordered shall be effective as
of April 1, 1967, or April 1st of any subsequent
contract year. The respective parties shall be permitted
all legal or economic recourse to support their requests
for revisions if the parties fail to agree thereon
[Emphasis supplied.]
Article 66 of the over-the-road supplemental agreement
and article 58 of the local cartage supplemental agreement
provide as follows:
The term of this Supplemental Agreement is subject to
and controlled by all of the provisions of Article 37 of
the Master Agreement between the parties hereto.
MCLEAN TRUCKING COMPANY 443
2. The garage agreement
Article XX of the garage agreement provides as
follows:
During the term of this agreement, the Union agrees
that there shall be no strike or any other interference
with or interruption of the normal conditions of the
Company's business by the Union or the employees
covered herein. The Company agrees that there shall be
no lock-outs. Nothing herein shall prevent the Company
from discontinuing an operation for economic reasons
whereby employees are forced to be laid off in
accordance with the provisions of this agreement.
[Emphasis supplied.]
Article XXI of this agreement provides as follows:
In the event of a strike or work stoppage by an
employee within the bargaining unit, not authorized by
the Union, the Union agrees, upon notification by the
Company that such strike or work stoppage is in
progress, to declare publicly that such action is
unauthorized and order the striking employees to return
to work. If the Union takes action immediately as
above stated, the Union shall be relieved of all
responsibility for such strike or work stoppage and the
Company may proceed to administer such discipline as
the Company may deem to be necessary to those
employees participating in such unauthorized action
and may employ other individuals to perform duties
theretofore performed by said participating employees.
[Emphasis supplied.]
In order that the Company may be apprised of the
officer of the Union empowered to authorize strikes,
work stoppages, or actions which will interfere with the
activities required of employees under this agreement,
it is understood and agreed that only the president or
secretary treasurer of the Union has the power or
authority to authorize any such actions or give the
orders or directions necessary to carry out such actions.
[Emphasis supplied.]
Article XXVI provides as follows:
It is the intention of both parties that this contract be
made in full compliance with the Labor-Management
Relations Act, 1947, and all other applicable laws....
Article XXXVII of this agreement provides in part as
follows:
*
The standard guaranteed work shall be forty (40) hours
per week and shall consist of the following schedule:
Five (5) consecutive days, Monday through Friday,
eight (8) hours per day guaranteed; or five (5)
consecutive days, Tuesday through Saturday, eight (8)
hours per day guaranteed.
* * *
It is further understood that the weekly guarantee shall
not apply in case of fire, flood, strike, or other
circumstances beyond the control of the Employer,
other than normal hazards of the business.
* * * * *
Article XL of this Agreement provides in pertinent part
as follows:
This agreement shall become effective as of the 16th
day of February, 1964, and shall remain in full force
and effect through March 31, 1967, and each year
thereafter, unless written notice of termination or
desired modification is given at least sixty (60) days
prior to any yearly expiration date by either of the
parties hereto.
Should notice of termination or desired modification be
given in the manner provided for above, the party
desiring same shall:
3. Continue in full force and effect without resorting
to strike or lockout, all terms and conditions of this
agreement for a period of sixty (60) days after notice
of interest to modify, amend, or terminate is given or
until the expiration date of this agreement, whichever
occurs later.
In the process of bargaining in good faith for a new
agreement or an agreement containing desired
modifications, the parties recognize the fact that it may
be necessary to continue their negotiations after the
date upon which this agreement legally terminates and
in order to provide for their duties and obligations for
the period of time between the termination date of this
agreement and the date upon which they conclude a
new agreement or one containing the desired
modifications, it is understood and agreed as follows-
1. The parties shall continue to bargain and negotiate
in good faith in any effort to reach a complete
agreement and understanding covering the terms and
provisions of a new contract to take the place of this
one or a contract containing the desired
modifications, and such negotiations shall continue
until either a complete agreement and understanding
is reached or until either or both parties conclude that
it is not probable that further negotiations will result
in agreement.
2. All of the terms and provisions of this agreement
shall be continued in full force and effect and
extended from the termination date hereof to such
times as modifications are agreed upon or
negotiations are terminated in the manner above
mentioned . [Emphasis supplied.]
C Events Giving Rise to Present Controversy
1. Prior to April 12, 1967
Pursuant to article 37, section 2, of the over-the-road
and local cartage agreements, supra, Respondent received
notice in December 1966, from the International Union of
its desire to negotiate changes or revisions in both
agreements. Negotiations were accordingly conducted in
Washington, D.C. between Trucking Employers, Inc.
(TEI), on behalf of the employers including Respondent,
and the National Negotiating Committee of the
International on behalf of all local unions.
Appropriate reopening notices were also timely received
by Respondent from Local Union 100, pursuant to article
XL of the garage agreement, supra. As previously noted,
the garage contract is negotiated on a local level in
Cincinnati, Ohio and, pursuant to established practice,
such negotiations were deferred until agreement had been
reached on the national agreements for the over-the-road
and local cartage employees because these agreements set
the pattern for the wage rates and other benefits of the
garage employees.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By April 1, 1967, an impasse was reached in the
national negotiations in Washington, D.C. Thereafter,
various locals of the International Union instituted work
stoppages against selected employers, but not including
Respondent, in support of the Union's contract demands
To counter this action, the employers instituted a
nationwide defensive shutdown at midnight on April 8,
1967.
Respondent participated in the nationwide defensive
shutdown and at midnight on April 8, 1967, shut down its
over-the-road and local cartage operations. The legality of
this shutdown is not in issue Garage employees who were
working at the time of the shutdown were permitted to
finish their shift on April 9. As there were then no trucks
or other equipment in operation requiring the services of
mechanics, Respondent had no need for the services of the
garage mechanics. Under these circumstances, Respondent
regarded the maintenance of a staff of mechanics as
uneconomical. It therefore temporarily discontinued its
garage operations and laid off its garage employees.
2. April 12, 1967
During the early morning hours of April 12, 1967, the
employers' association and the International Union's
committee resolved the impasse in Washington and
reached agreement on the modifications and changes in
the contract for the over-the-road and local cartage
employees, subject to ratification by the locals.' In a
collateral agreement arrived at as part of the same
negotiations, the parties also agreed that, "to resolve on a
mutually satisfactory basis the current suspension of
operations and furtherance of continued good labor
relations in the trucking industry," (1) the employers
represented by Trucking Employers, Inc., "will
immediately commence the recall to work of all
employees affected by such suspension of operations" and
(2) that "layover claims" for the over-the-road drivers for
the period between "April 8, 1967 until the execution of
this agreement," shall be paid, together with payments for
meal allowances, lodging and transportation but that
"there shall be no other claims for pay for city or road
employees during the aforesaid period."
Pursuant to the aforementioned agreement, Respondent
began prior to 8 a.m. on April 12, 1967, to recall its
employees to work by telephone. However, none of the
employees so notified commenced working.
About 10:45 a.m. on April 12, Dale Alfred,
Respondent's Director of Labor Relations for the Western
Region, arrived at the Sharonville terminal and observed a
large group of Respondent's employees at the terminal
entrance. He immediately arranged to meet in the
terminal's canteen room with a union committee, which
consisted of Farmer, Business Agent, Carl Phillips,
over-the-road steward, William Hawkins, assistant road
steward, George Cooper, local cartage steward, William
Ellis, the alternate or assistant local cartage steward, and
Dale Naylor, the garage steward. Also present for
Respondent were William Burcham, District Manager,
and Carl Hunt, a security officer Alfred acted as
spokesman for Respondent.
With respect to what transpired at this meeting, Alfred
testified as follows.
'Printed copies of the new over -the-road and local cartage agreements
were formally executed by the Union and Respondent on November 4,
1967
Alfred asked Farmer if he was aware that the
International Union had sent a telegram directing all
employees to return to work. Farmer replied in the
affirmative. Alfred then asked why Respondent's
employees had not returned to work and inquired as to
what the issues were. Farmer replied that there were three
problems, that the first was a demand that Respondent
guarantee that all employees in the three units be paid for
the days not worked during the period of the defensive
shutdown, that the second was that Respondent guarantee
that all employees under the three contracts would receive
retroactive pay for any increases granted to March 31,
1967, before the employees would return to work, and
that the third problem was that no reply had been received
to Union President Starling's letter to Ehrhardt,
Respondent's vice president, in regard to negotiations for
changes in the garage contract. At this point Farmer was
summoned to the telephone outside the meeting room to
speak to John Grigsby, Respondent's attorney. During the
discussion in Farmer's absence, Naylor, the garage
steward, remarked to Burcham that without a garage
contract Respondent could pay them $1.50 per hour.
Burcham agreed but stated that Respondent does not
operate that way. When Farmer returned after an absence
of 5 or 10 minutes, Alfred explained Respondent's
position concerning the Union's three demands. At this
time Alfred knew that an agreement concerning the
over-the-road and local cartage contracts had been
reached in Washington, D. C., but did not know their
exact terms and conditions. Alfred explained that
Respondent would abide by the final settlement reached in
Washington and that pay for time lost during the
shutdown was a subject of the Washington negotiations
He also stated that Respondent would abide by any final
settlement reached in the negotiation of the garage
employees' contract concerning pay for time lost during
the shutdown. Farmer replied that the men were asking
that these two items be guaranteed before they would
return to work As for the question relating to the
commencement of negotiations for the garage contract,
Alfred assured Farmer that as soon as the meeting ended
he would call Ehrhardt in Washington to inquire about it
Farmer did not deny the testimony of Alfred,
hereinabove set forth. He testified that he asked Alfred
what Respondent's position was with reference to the local
cartage guarantees and the garage guarantees and that,
before Alfred could reply, he (Farmer) was called out of
the meeting to talk to Grigsby on the telephone.
Farmer further testified as follows with respect to this
telephone conversation. Grigsby asked Farmer if he knew
the "thing was over" and that "the International Union
had reached an agreement." Farmer replied that he
understood this to be the case and that he was at the
terminal "to straighten it out." Grigsby told Farmer to
get the employees back to work and that any complaints
of the men could be handled in accordance with the
grievance procedure of the contracts. Farmer assured
Grigsby he would go out and instruct all employees to
return to work immediately and explain to them that all
the issues were settled and that their time that they had
lost during the shutdown would be handled by the
International Union Grigsby also told Farmer that
Respondent would discharge some employees if they did
not return to work. Farmer again assured Grigsby that he
"would go out and instruct the men to go back to work in
accordance with the agreement reached by the TEI and
our International negotiating committee "
MCLEAN TRUCKING COMPANY
Farmer further testified that when he returned to the
meeting room, his committee was standing up and that he
told them, "come on fellows, let's go back to work." He
testified that the meeting was over by then and that, as
the committee was leaving, he explained to the stewards
the position the International was taking and that he had
to go out and put the people to work.
Stewards Naylor, Phillips, and Ellis testified as
witnesses for the General Counsel with respect to this
meeting Their testimony differs from that of Alfred only
in the following respect. They testified that in an informal
discussion during Farmer's absence to speak on the
telephone to Grigsby, either Alfred or Burcham stated, in
response to a statement by one of the stewards, that the
garage men did not have a contract, that one of the
stewards then stated that in that event the Company could
pay them as little as $1.50 per hour, and that either
Alfred or Burcham agreed but stated that Respondent
does not do business that way
Burcham testified that he recalled the statement being
made by one of the committeemen that they did not have
a contract and that Respondent could work them for
anything they wanted to pay. He denied that either he or
Alfred told the men, in his presence, that they did not
have a contract or that they could work the men for as
little as $1.50 an hour if they wanted to.
About noon, the same committee, excluding Farmer,
returned to request another meeting. Alfred and Burcham
thereupon met with them Alfred testified that the
stewards again demanded that he guarantee payment to
all employees in the three bargaining units for the time
lost during the shutdown before they would return to
work, and that Alfred again stated that Respondent would
abide by the final agreement reached in Washington. Ellis
testified for the General Counsel with respect to the
second meeting His testimony is consistent with that of
Alfred
3. The strike of the garage mechanics
Garage Mechanic Bryant, one of the alleged
discriminatees, testified that on April 12 the mechanics
voted unanimously not to go back to work until they got
assurance that they would be paid for the time they were
off between April 8 and 12. Garage Steward Naylor
testified that the men discussed the matter and took the
position that if they had a contract they wanted their side
of it, which was their guarantee for the time of the
shutdown, that he told them they were not going to get it
because he was told they had no contract, and that the
men decided they were not going to work without a
contract A picket line was then set up with signs stating,
"Teamsters Local 100 McLean Garage Employees On
Strike, No Contract."
About 2 40 p in. Naylor and Assistant Road Steward
Hawkins came back to the terminal and informed Alfred
and Burcham that the garage employees were on strike
and that picket signs were being displayed. That same
afternoon, Respondent's Terminal Manager Buie sent a
telegram to Union President Starling, informing him that
a strike and work stoppage was in progress at the
Sharonville terminal. In response, Respondent later
received the following telegram from Starling-
Work stoppage in progress at your terminal is not
authorized by Local 100 or International Brotherhood
of Teamsters and we disavow responsibility for such
stoppage.
445
About 7 p.m. on April 12, Starling arrived at the
terminal. Also present were Business Agent Farmer and
Secretary-Treasurer Collamer. Employees from all three
bargaining units were in the vicinity of the picket line and
the terminal. Starling read a statement, which he
explained was a telegram received by him over the
telephone from International President Fitzsimmons, to
the effect that the negotiations in Washington had been
settled and that the International was in agreement with
the Employers that the employees should return to work
immediately
About 8:30 a.m. on April 13, Ehrhardt, Respondent's
vice president, sent Union President Starling the following
telegram
This is to advise that when the picket lines are
withdrawn and operations are returned to normal we
are prepared to negotiate revisions in mechanics
contract. Please advise dates when you will be available
so that mutually satisfactory dates can be selected
About 10:45 a.m. on April 13, Alfred spoke with
Starling by telephone. Alfred asked Starling if the strike
was an authorized strike Starling immediately replied,
"No, sir, it is not an authorized strike." Starling then
added that he had been to the Sharonville terminal the
preceding evening and tried to get the men to go back to
work. In this same conversation, Starling also admitted
that he had not entered into negotiations with any
company in Cincinnati for new garage contracts, as it was
common practice to wait until the Union learned the
details of the final settlement in Washington with respect
to the local cartage agreement because that would set the
pattern for the garage contract negotiations
Although the actual picket line duties were performed
only by garage employees, on April 12 and for several
days thereafter there admittedly was a large group of
employees, at times as many as 150, congregated around
the entrance to the terminal and talking to each other.
Garage Steward Naylor admitted that this group consisted
of a mixture of all three units. Assistant City Steward
Ellis on at least two occasions referred to the picket line
as "our picket line," testifying that on one occasion he
informed Burcham, in the presence of Road Steward
Phillips and Garage Mechanic Bryant, that "we are not
coming through our picket line to pick our checks up"
Both Farmer and Naylor admitted that Union President
Starling told them and the garage employees that the
mechanics' strike was unauthorized and that he would not
authorize it. Both Farmer and Starling admittedly assured
the garage employees that their contract was still in effect
and urged all employees, including the garage mechanics,
to go back to work.
4. The discharges
During the day on April 12, Respondent sent telegrams
to 137 employees in the garage unit and the local cartage
unit, confirming earlier telephone calls to report to work.
Among those to whom the following telegrams were sent
were five of the alleged discriminatees:'
Report per your work schedule, but in any event no
later than 11:00 A.M. April 13, 1967 or you will be
discharged.
All five reported to the terminal but refused to cross the
picket line in order to go to work. All but Bryant
telephoned the terminal and reported that they wanted to
'Garage Employee Bryant and Local Cartage Employees Ellis, Hudson,
Estes, and Schappacher
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
go to work but would not cross the picket line. Ellis
testified that he refused to cross the picket line for fear of
bodily injury and that he had so informed the person at
the terminal who answered his telephone call.
When none of the 137 employees to whom the above
telegrams were sent came to work on April 13,
Respondent sent the following telegram to the five alleged
dischargees named in the margin.
Pursuant to our telegram of April 12, 1967 you are
hereby discharged.
Respondent admittedly selected the above-named five
employees for discharge because they were believed to be
most active on the picket line and in the hope that this
action would cause the others to return to work.
On April 13 Respondent followed up its telephone calls
to the over-the-road employees by sending each of the 210
drivers the following telegram-
Report per your work call, but in any event no later
than 2 45 P M. April 14, 1967 or you will be
discharged.
Among the 210 to whom this telegram was sent were the
remaining 8 alleged discriminatees ' Seven of these alleged
discriminatees testified that they came to the terminal but
refused to cross the picket line.' Five of them testified that
they conveyed this message by telephone to the terminal;
and three' also stated they stated they refused to cross the
picket line for fear of bodily injury
When none of the 210 road drivers came to work on
April 14, Respondent sent the following discharge
telegrams to each of the above-named 8 alleged
discriminatees:
Pursuant to our telegram of April 13, 1967 you are
hereby discharged.
Respondent admitted that these eight were selected for
the same reason as the previous five, that is, that they
were believed to be most active on the picket line.
5. April 15 to 25
On April 15 Alfred met Union President Starling at the
picket line Between 100 and 150 of Respondent's
employees were also present Alfred testified as follows
concerning what transpired on this occasion.
Starling opened the conversation by stating that it was
the Union's position that there was an over-the-road
agreement, a local cartage agreement, and a garage
agreement in effect at that time Starling asked what the
Company's position was Alfred replied that it was also
the Company's position that the over-the-road, the local
cartage and the garage agreements remained in effect. In
support of his position, Alfred quoted Article 37 of the
National Master Freight Agreement and Article XL of
the garage agreement. Starling then stated that since that
issue is settled they will move on to the next point.
Starling said that the men were demanding they be
guaranteed pay for the time not worked during the period
of the shutdown before they would return to work, and
also were demanding that the Comapny guarantee that
wage rate increases be made retroactive to March 31,
1967 before they would return to work. Alfred replied, in
the presence of the group of employees and Business
Agent Farmer, that he would guarantee that the Company
would abide by the final decision on these subjects made
'Berry, Halstead, Flint, Trent, Stout, Spurgeon, Conley, and Santy
'The parties stipulated that Santy was deceased at the time of the instant
heanng
'Berry, Flint, and Conley.
in Washington with respect to the over-the-road and local
cartage agreements and the settlement of the issues in the
garage contract negotiations. At that time Alfred had no
knowledge of the details of the agreement reached in
Washington. Before the meeting concluded, Farmer
accused Alfred of saying that "there is an understanding"
and stated that the men want to be assured they have
contracts. Alfred replied that Farmer was trying to put
words in his (Alfred's) mouth and that was not what he
said. Alfred repeated that he would guarantee Respondent
would abide by the final decisions in the negotiations in
Washington. Farmer then requested that Alfred agree in
writing that the Company would pay for time lost during
the shutdown and make all wage increases retroactive
Alfred replied that it was not necessary to put these
guarantees in writing The last request made was that the
Company agree to reinstate all discharged employees. The
meeting ended with the understanding that they would
meet again after a short recess.
Farmer and Road Steward Phillips testified for the
General Counsel with respect to this meeting Their
testimony differs from that of Alfred only in the following
respect: Farmer urged Alfred to tell the men they had a
contract Alfred replied that "we have an understanding "
When Farmer persisted in his position, Alfred replied that
he knew what Farmer wanted him to say but that all he
would say was that they had an understanding
Alfred met with Starling and Farmer, in the presence of
the same group of employees, about 45 minutes later
Starling asked if the Company's position had changed.
Alfred again restated the Company's position as he had
done previously. Starling then asked if the Company
would agree to return all dischargees to work if all the
men went back to work. Alfred replied that he could not
guarantee this. Local Cartage Steward Cooper then spoke
up and said "everybody goes back to work or nobody
goes back to work." Starling then stated, "I guess that's
it. Thanks for coming down and meeting with us."
Business Agent Farmer held a meeting of Respondent's
employees at the union hall on Saturday, April 22, 1967.
By that time, an additional 19 employees had been
discharged, making a total of 32. Farmer informed the
men that 32 employees had been discharged and that it
was the Company's position that the remainder should go
back to work immediately.
When the men rejected this proposal, Farmer
telephoned Respondent's Attorney Grigsby and explained
the position of the men. During this conversation, Grigsby
reminded Farmer that the strike was unauthorized and
that the contract gave the Company the right to protect
itself under such circumstances, and requested that the
employees return to work. Grigsby then told Farmer to
put before the men the proposition that if they returned to
work by 6 p.m. that day the number of discharged
employees would be reduced from 32 to 13, but if they did
not return to work until 8 a.m. the following Monday, the
32 would remain discharged.
Farmer returned to the meeting and informed the men
of his conversation with Grigsby. When it appeared that
the men did not believe Farmer, he again telephoned
Grigsby and had him present the same proposition to four
or five of the employees at the meeting Respondent's
employees from all three bargaining units were present at
this meeting At the conclusion of this telephone call, they
all voted to stay out.
On April 24 some of the employees in the garage unit
returned to work, and nine over-the-road drivers reported
for work on the morning of April 25.
MCLEAN TRUCKING COMPANY 447
6. Strike settlement agreement
About 1:45 p.m. on April 25, Farmer and his
committee met with Respondent's Vice Presidents
Andrews and Ehrhardt at the Howard Johnson motel. The
Union's committee was comprised of Farmer and
Stewards Naylor, Ellis and Phillips The Union proposed
that all employees in all three units be allowed to return
to work. Respondent proposed that all three units except
the 32 dischargees should return to work immediately.
The Union's representatives left and presented the
Company's proposals to a meeting of members from all
three units who were assembled nearby. The members
voted to reject the Respondent's proposal and refused to
return to work
Another meeting was held at 7 p m at the motel. At
this meeting, Respondent offered to reinstate all but the
original 13 discharged employees upon condition that all
other employees in all three units would return to work
immediately and the 13 dischargees would have the right
to have their cases processed through the contract
grievance procedure. When this proposal was explained to
the men by Farmer, they voted to accept it and to return
to work. A formal settlement agreement was thereupon
drawn up and signed by Vice Presidents Andrews and
Ehrhardt for Respondent and by Farmer and Stewards
Naylor, Phillips and Ellis, the Charging Party herein, for
the Union Immediately thereafter, all employees except
the initial 13 dischargees, the alleged discriminatees
herein, returned to work. The settlement agreement states
as follows
Terms Of Settlement Of Labor Dispute Teamsters
Local No 100 - McLean Trucking Co.
1. If The Picket Line Is Removed Immediately The
Company Agrees To Return All Employees Except The
First Thirteen (13) Discharged
2 In The Resumption Of Operations The Employees
Will Be Returned By Shift As Required. Road Drivers
Will Be Returned As Called.
3. The Company Agrees To Discuss The Disposition
Of The Thirteen (13) Dischargees When Operations
Are Returned To Normal And Through The
Contractual Procedures.
4. The Union Agrees To Increase Its Cooperation To
Provide A More Harmonious Relationship And The
Company Agrees When Problems Develope [sic] That
They Will Afford The Union An Opportunity To Meet
With Top Management Provided The Local
Management Is Unable To Settle The Problems.
5 TheCompanyAs Previously Advised Local No 100
Will Negotiate Revisions In the Maintenance Contract
Within A Reasonable Time After The Master &
Supplemental Contracts Are Settled'
6. The Local Union By Its Vote This Date Ratifies
This Agreement.
7. The grievance and arbitration proceedings
Pursuant to the settlement agreement of April 25, 1967,
the dispute involving the discharge of all 13 alleged
discriminatees began to be processed in accordance with
the contractual grievance procedures of the three
collective-bargaining agreements Thus, on April 28, a
grievance meeting was held at the Holiday Inn, at which
Respondent and the Union were represented and the
grievants were present The grievances were not resolved.
Thereafter, as provided by the contracts, each alleged
discriminatee reduced his grievance to writing on May I
and 2 and signed and served it upon the Respondent. The
signed written grievances of each of the 12 alleged
discriminatees , comprising four local cartage employees
and eight over-the-road drivers, "protest[s] my discharge
for failing to cross a primary picket line," specifies Article
9 of the agreement as being violated, and requests his
"return to work with full seniority and pay for all time
lost."
On May 10, 1967, the grievances of the four local
cartage employees were submitted, in accordance with the
local cartage agreement, to the Cincinnati Joint Grievance
Committee. The grievances were not resolved, as the
committee "deadlocked." The issues were then submitted,
again in accordance with the contractual procedures, to
the Ohio Joint State Grievance Committee This
committee was also "deadlocked," and the issues were not
resolved. The matter was then referred, as provided in the
agreement , to the Central States Joint Area Committee in
Chicago, Illinois.
The over-the-road agreement, unlike the local cartage
agreement , does not require that grievances be submitted
to a local committee Therefore, on May 3, at the request
of the Union, the grievances of the of the eight
over-the-road drivers were referred to the Ohio Joint State
Grievance Committee in Columbus, Ohio. At a hearing
held on May 25, the committee "deadlocked," and the
issues were not resolved The matter was then also
referred to the Central States Joint Area Committee in
Chicago.
The grievance of the 12 employees were then presented
on June 14, 1967, to the Central States Committee, a
bi-partite committee Respondent was represented by its
Attorney, John Grigsby, and by Dale Alfred; the Union
and the 12 alleged discriminatees, who also appeared
before the committee, were represented by Business Agent
Farmer The proceedings were transcribed. At the
conclusion of the hearing, the panel went into executive
session . Upon its return, the chairman of the panel
announced the unanimous decision of the committee to
deny the claims of all the grievants and to sustain the
discharges.'
On July 7, Attorney McComas, representing all 12
grievants , filed an application with the Central States
Committee for reconsideration of its previous decision.
The application was granted and another hearing was held
on September 20, 1967, in Chicago These proceedings
were also transcribed. All 12 grievants were present at the
hearing, were permitted to testify, and were represented
by Attorney McComas. Representatives of Respondent
and of the Union were also present. After additional
evidence and arguments had been preserved, the panel
again went into executive session . Upon its return, the
chairman announced the committee' s unanimous decision
to affirm its previous decision and to uphold the
discharges.
'Negotiations for a new garage contract in fact commenced at an early
date thereafter and were completed on August 29 or 30, 1967 The new
garage contract , which included the agreed - upon changes and
modifications , was formally executed by the parties on November 4, 1967
'Article 43 of both the over-the-road and local cartage agreements
provides that "where the Joint Area Committee by majority vote settles a
dispute such decision shall be final and binding on both parties with no
further appeal "
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8. The case of garage employee Bryant
As previously noted, the discharge of Bryant under the
garage contract had been considered along with the
discharges of the other 12 alleged discriminatees at the
grievance meeting held on April 28 at the Holiday inn
and was not resolved. In accordance with the grievance
procedure of the garage contract, Bryant prepared and
signed a written grievance, dated May 1, 1967, in which
he stated that "I hereby protest my discharge. I was taken
out of service without a hearing at which a representative
of my local union was present" and requested "to be
returned to my job with full seniority and to be paid for
all time lost." This signed written grievance was mailed by
Business Agent Farmer to Respondent together with a
covering letter, dated May 3, 1967, stating that "the union
will follow the procedure outlined" in "Article 23 of the
agreement covering garage employees" and "we assume
that the Company will do the same."
Thereafter, the grievance was submitted to arbitration
in accordance with the grievance and arbitration
procedure in the garage agreement Judge George S.
Heitzler of the Cincinnati Municipal Court was selected
by the parties to hear the case. The hearing was scheduled
for August 30, 1967. On August 28, 2 days before the
scheduled hearing, Bryant's attorney, McComas, and
Business Agent Farmer withdrew the grievance from
arbitration.
D. Issues and Contentions
The General Counsel contends that neither the Trial
Examiner nor the Board should defer to the decision of
the arbitration panel or to the grievance procedures of the
contracts but should proceed to resolve the merits of the
unfair labor practice allegations . On the merits, he
contends that the 13 alleged discriminatees were
discharged primarily for refusing to cross the picket line,
established by the garage employees, in order to go to
work; that such conduct constitutes a protected concerted
activity within the meaning of Section 7 of the Act; and
that the discharges therefore violated Section 8(a)(1) and
(3) of the Act.
Respondent contends that the complaint should be
dismissed without resolving the merits because, under the
circumstances disclosed by this record, deference should
be given to the decision of the arbitration panel and to the
grievance proceedings of the contracts which all parties
agreed to pursue as part of the settlement agreement of
this very dispute. With respect to the merits, Respondent
contends that the strike of the garage mechanics was an
unprotected activity because it was in breach of contract
and/or because it was unauthorized and was in derogation
of the position of the Union, that the employees in the
other two units were also engaging in a strike or work
stoppage which was unprotected for the same reason; that
employees who refused to cross the picket line were
therefore also engaging in an unprotected activity; and
that under such circumstances Respondent could, without
violating the Act, pick and choose the employees to be
discharged for engaging in such conduct.
E The Issue of Deferral to the Grievance and
Arbitration Proceedings
The parties do not question , what is now well
established , that the Board is not precluded from
adjudicating unfair labor practice charges even though
they might have been the subject of an arbitration
proceeding and award. However, they do recognize the
equally well established position of the Board, first
announced in Spielberg Manufacturing Co., 112 NLRB
1080, 1082, and later reiterated and elaborated in
international Harvester Co., 138 NLRB 923, 927,' to
give hospitable acceptance to the arbitral process as
"part and parcel of the collective bargaining process
itself"' and voluntarily withhold its undoubted
authority to adjudicate alleged unfair labor practice
charges involving the same subject matter, unless it
clearly appears that the arbitration proceedings were
tainted by fraud, collusion, unfairness, or serious
procedural irregularites or that the award was clearly
repugnant to the purposes and policies of the Act
"United Steelworkers of America v Warrior A Gulf Navigation
Company, 363 U S 574, 582.
The General Counsel contends that in the instant case
there should be no deferral to the awards of the Central
States Joint Area Committee, which the parties had
agreed would be final and binding, because they allegedly
did not meet the standards and tests which the Board
requires to be present in arbitration proceedings. In
support of this position, he asserts the following four
principal grounds: (1) alleged procedural irregularities, (2)
alleged failure to present and consider the grievants'
statutory right to refuse to cross a picket line, (3) the
alleged failure to consider the grievants' rights under
Article 9 of the Master Freight Agreement, supra, to
refuse to cross the picket line, and (4) that the awards are
repugnant to the Act. Upon the basis of the entire record
before me in the instant case, I find no merit in any of
these contentions.
1. As to point one
With respect to alleged irregularities, the General
Counsel specifically points to "the absence of an impartial
member on the panel," the absence of a "written decision
stating its, reason for such decision," the absence of
"sworn testimony," the "employer was permitted to have
its attorney present its case to the panel at the June 14
hearing while the same privilege was denied the individual
grievants," and that it was the official position of both the
Union and Respondent "that the work stoppage was
unauthorized." Based on the foregoing allegations, the
General Counsel further states that "in these
circumstances, it is contended that the JAC members may
have been arrayed in a common interest against the
individual grievants and therefore strong doubt exists
whether the procedures comport with the standards of
impartiality that the Board expects to find in arbitration."
Neither the record nor the authorities support the General
Counsel's position in the instant case.
The Central States Joint Area Committee is established
by the provisions of the grievance procedures in both the
over-the-road and the local cartage agreements. The
Committee consists of an equal number of employer
representatives and union representatives, selected by the
respective parties. No employer representative and no
union representative may hear cases involving his own
company or his own local union . The Committee, which
has been in existence for at least 15 years, convenes every
'See also Denver-ChicagoTrucking Co. Inc, 132 NLRB 1416, 1421
MCLEAN TRUCKING COMPANY
3 months to hear and determine all disputes arising in the
Central States Area which have not been resolved in one
of the lower steps of the grievance procedures. The
hearings are transcribed verbatim, although not under
oath. After hearing all the testimony and arguments, the
practice is for the panel to go into executive session and
then to reconvene and orally announce its decision , merely
indicating whether or not it was unanimous . The record
shows no deviations in the instant case from the
Committee's established practices Indeed , the Board has
recognized and deferred to awards rendered by such
bipartite committees in the trucking industry , operating
under virtually identical procedures and conditions.10
The transcripts of the proceedings in the two hearings
held on June 14 and September 20, 1967, which are in
evidence , consist of 46 and approximately 200 typewritten
pages, double spaced , respectively The evidence and
arguments presented at both hearings are substantially the
same as that presented before me on the merits, especially
from the standpoint of the Union and the complainants.
The grievants and the Union were represented at the first
hearing by Business Agent Farmer. There is no warrant
for the General Counsel ' s accusation that the grievants
were denied the privilege of having their own attorney
present their case at the June 14 hearing For the record
affirmatively shows that no such request was made by
anyone. That the grievants were adequately represented by
Farmer is demonstrated by the fact that the panels were
"deadlocked" in the lower steps of the grievance
procedures . In any event , the grievants did have their own
counsel , McComas, present any additional evidence and
make additional arguments and contentions at the hearing
of September 20 McComas admitted at that hearing that
he had read the transcript of the June 14 hearing , and the
chairman of the panel announced that said transcript was
also before them . The Union and the grievants were also
represented at the second hearing by Farmer and
President Starling. Respondent was represented at both
hearings by John Grigsby, the same attorney who
represented Respondent in presenting grievances before
the Committee since 1952. The grievants themselves were
present at both hearings and some of them gave evidence
at the second hearing. All three contracts were presented
to the Committee and the alleged relevant portions called
to its attention by the respective parties. While it is true
that Starling had taken the position from the outset that
the work stoppage was unauthorized and so informed the
Committe at the second hearing, he nevertheless
contended at that hearing that "the Company themselves
agitated this stoppage ," that the Company took
"discriminatory action" against the grievants , and that
they should all be reinstated with backpay and no loss of
seniority . Before going into executive session at the second
hearing, Chairman Ranney asked , "has everybody been
given an opportunity to say everything they want to say?
Anything left out?" There is absolutely no basis for the
General Counsel's asserted suspiciion that the Committee
"members may have been arrayed in a common interest
against the individual grievants."
I find that it clearly appears that the arbitration
proceedings were not tainted by any fraud , collusion,
unfairness or procedural irregularities which would
warrant disregarding the award.
"See e g , Denver -Chicago Trucking Co, supra, and Modern Motor
Express, Inc. 140 NLRB 1507.
2. As to points two and three
449
The transcript of the June 14 proceeding shows that
Business Agent Farmer admitted that the work stoppage
on and after April 12 was unauthorized , that the contracts
covering all three units were still in effect during that
period , and that he so informed all employees and had
urged them to cross the picket line to go to work He
sought to justify the grievants ' conduct on the ground that
the strike and picketing was undertaken only by the
garage employees and that they engaged in such conduct
because Alfred refused to assure them that their contract
was still in effect , that the grievants were not on strike but
were merely honoring the picket line and had so informed
Respondent , that they had a right to do so under Article 9
of the over-the-road and local cartage agreements , supra,
and that the discharges were in violation of said Article as
well as "unfair ," "selective ," and "discriminatory." He
also pointed out that the picket line established by the
garage employees had nothing to do with the Master
Freight Agreement and argued that whether that picket
line "is legal or illegal I don ' t think any one yet has
determined under the language of the contract."
The Respondent took the position that the employees
were involved in a work stoppage which was in breach of
contract, were subject to discharge under Section 2 of
Article 43 of both agreements, supra , and that they
believed the grievants were the most active in this conduct.
Thus, Respondent 's Attorney Grigsby stated that:
It is our position that these gentlemen were involved
in this strike in violation of Article 43, Section 2, that
the strike lasted more than twenty-four hours, that they
failed to report more than twenty-four hours, that this
was a strike which was in violation of the contract.. .
We felt they [the grievants ] were the key people and
were there more than anybody else , and we felt they
were the ones.
The transcript of the September 20 proceeding shows
that the Union and the Respondent took the same
respective positions as in the previous hearing . Attorney
Grigsby also offered as an exhibit the Mechanics Contract
and specifically called attention to and read Article XL,
supra, thereof . In addition , Attorney McComas, appearing
on behalf of the individual grievants , told the Committee
that " there are five significant points or issues that should
be discussed relative to the primary issue of the
employees ' discharge ." He then proceeded to develope the
five points. Two of them related to the employees'
contractual rights under Article 9 of the National Master
Freight Agreement , supra , and to their statutory rights,
under Section 7 of the Act, to refuse to cross the picket
line. Thus, McComas stated:
The third point was that the concerted activity as a
result of the failure to bargain in good faith by the
garage employees , whether it was authonzed by the
Union or not , was protected under the Labor Relations
Act which this contract strictly says that all laws are
applicable to their contract , and, therefore they protect
this concerted activity of the garage employees, a
protected activity under the Act, and, therefore, not a
subject to be decided by this Committee , but it was
merely pointed out that this comes within the terms of
the Garage Employees Association agreement, but
above all , also, the major and only issue this this
Committee is-submitted to this Committee to decide
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was that these employees contend that above all else,
that the discharges were unlawful and in violation of
the Article 9 of the Master Freight Agreement as
amended , which is material before this Committee, and
finally, Gentlemen, the fifth point that we would like to
present to this body today is that in relation to the
discharge of these twelve gentlemen before you,
although there was thirteen - one is before the local
contract - that the discharges of these men who were
finally discharged at the resumption of the employment
herein is submitted that the method of their discharge
was selective and discriminating by the terms of the
Master Freight Agreement and, also , such action by the
employer constituted an unfair labor practice under the
Act.
The transcript discloses that throughout the proceeding
McComas continued to urge these issues before the
Committee, reading Article 9 of the Master Freight
Agreement and claiming that:
There was, in fact, a picket line by another group of
employees who are not- a part of this contract. These
men [the grievants] thought they were acting within
their rights under the Contract... .
* * * * *
During the attempts to negotiate, these employees
frequently met as a committee with representatives of
the Company, not in accordance with the representation
of the Union. These men felt like this was their own
concerted activity which was there for their own mutual
aid and protection.
I might also repeat that even if the Employer in good
faith, in good intent, thought that he had a right to
discharge these men if they had a right to not cross the
picket line, it is a protected activity of their own, not of
the Unions, of these men's individual rights. It is a
protected activity under the National Labor Relations
Act and all of the Acts. They are protected.
* * * * *
In closing our presentation here, I realize that every
item - there are many items that are relative to this,
but, Gentlemen, the primary issue before this
Committee still hinges upon a very simple statement.
(1) Under the terms of the contract, the garage men felt
like they had a right to quit if they wanted to. So, they
did. In fact, I don't know why - in fact, set up a
picket line.
These men [the grievants] were not a part of the
garagemen's activity. Under the terms of their contract,
the Master Freight Agreement, they had a right not to
cross the picket line. In fact, they have been schooled
all of their life in their fraternal organization, it is an
honor for them to respect their brothers, and the only
decision before this Committee is - the Company says
we failed you....
* * * * *
If you are going to strictly construe this Contract,
they are looking at this Master Freight Agreement
which says they have a right not to cross a picket line.
It doesn't say whether it is authorized or unauthorized
or legal, in fact, a right, in fact, if there is one, and,
Gentlemen, accordingly these discharges are not proper
if you just consider the terms of their Contract in
relation to the other Contracts which have been
submitted to this body.
the primary issue before this Committee is that
they were fired because they failed to report to work.
We are saying such method is discriminatory, that these
men had a right not to cross the picket line. . . . This is
the primary issue, however, that has come up through
the grievance procedure to this Committee.
Thank You.
In responding to some of McComas statements,
Attorney Grigsby took the position that -
this strike was a strike wholly and solely to try to
demand that the Company pay for the time that they
did not work during the lockout, this is just a
subterfuge to say this is the Mechanics Contract. The
Contract is in here.
They agree that there will be no strikes. We had an
understanding with the Local there would be no
negotiations until after the national level, and we did
agree after we got it and settled the Contract.
There was no question in the Mechanics Contract.
The whole thing was the two days or three days that
the people lost due to the lockout, and they wanted to
get paid for it.
Before the close of the hearing, Chairman Ranney was
informed, in response to his specific questions on these
very points, about the terms and conditions under which
the Mechanics Contract expired, that Respondent received
"notice of reopening of the contract in due time," that "it
was tacitly understood in Cincinnati that this matter of
the Mechanics Contract would be negotiated after the
National," that the Mechanics Contract was negotiated on
an individual company basis, and that "no meetings" were
"held between receipt of the opening letter and April
twelfth." Union President Starling then further explained
the reason that we wouldn't get into negotiations
with the garage people was because the garage people
all over the city of Cincinnati received the same rate of
pay as the drivers get . . . and we did not enter into
negotiations with no company that had mechanics
because we first had to wait and see what the drivers
was going to settle for ... .
I am convinced and find, contrary to the contentions of
the General Counsel, that the issues of the grievants'
statutory and contractual rights to refuse to cross a picket
line were fully explored and presented to the Committee.
3. As to point four
Nor do I find, as the General Counsel urges, that the
resolution of the issues presented to the Committee is at
variance with settled law and policies and therefore clearly
repugnant to the Act. Thus, it is well settled that work
stoppages in breach of contract are not protected
concerted activities, that employees who honor picket lines
established in support of such work stoppages are also not
engaging in a protected form of concerted activities, and
that the employer may make an example and, without
violating the Act, discharge only those who he believes are
most active in such unprotected concerted activities." The
Committee was presented with the issue of interpreting
and reconciling the various provisions of the contracts,
"See, e.g ., N.L.R.B. v. Sands Mfg. Co.. 306 U.S. 332; Alton Box
Board , 155 NLRB 1025 ; Complete Auto Transit, Inc., 134 NLRB 652;
MCLEAN TRUCKING COMPANY 451
which were claimed to be in effect during the period in
question. It plainly appears to me that the award is not
palpably wrong. This does not necessarily mean that I or
the Board would decide the issues in the same manner.
Howerver, to require any more would mean substituting
my judgement or the Board's judgement for that of the
Committee, thereby defeating the purposes of the Act and
the common goal of national labor policy of encouraging
the final adjustment of disputes, "as part and parcel of the
collective-bargaining process.""
F. Concluding Findings
Under the facts and circumstances in the instant case, I
find that it will effectuate the policies of the Act to respect
the Committee's award and to dismiss the complaint,
without passing on the merits, insofar as it alleges a
violation of the Act with respect to the discharge of all
except Garage Mechanic Bryant.
There remains for disposition the charge involving
Bryant. As previously found, Bryant's case was processed
through the grievance procedures of the Mechanics
Contract. It was not resolved at the preliminary hearing
held on April 28 at the Holiday Inn. Pursuant to the
contract's grievance procedure, Bryant reduced his
grievance to writing and the Union then submitted his
written grievance to Respondent with a request that the
arbitration provisions of the grievance procedure be
followed Respondent agreed, and Judge Heitzler was
selected by the parties to hear the case which was
scheduled for August 30, 1967. On August 28, Attorney
McComas and Business Agent Farmer withdrew Bryant's
grievance from arbitration, without giving any explanation
for their action. Respondent continues to be ready and
willing to proceed to arbitration.
Bryant, along with the other alleged discriminatees, had
voted to accept the strike settlement agreement of April
25 providing for the submission of their cases for final
settlement to the respective contract grievance procedures.
Beckhtel Corp, 127 NLRB 891; General Motors Corp, 134 NLRB 1107
California Cotton Corp et al, 110 NLRB 1494, and Lenscraft Optica
Corp & Rayet Corp , 128 NLRB 807
The settlement agreement was signed by Farmer, and
three stewards, including the Garage Mechanics' steward
and the Charging Party herein. Under the circumstances,
including the fact that a question of substantive contract
interpretation is involved in determining whether the strike
of the garage mechanics was in breach of the Mechanics
Agreement," the fact that Bryant's controversy is
basically the same as that involved in the other cases, and
the further fact that it does not appear that the unresolved
controversy over Bryant's discharge may have a
continuing impact on the bargaining relationship,1d I am
of the opinion that this dispute should be left for
resolution within the framework of the settlement
procedures agreed upon by all parties. I therefore find
that, under the circumstances of this case, it would best
effectuate the policies of the Act of promoting industrial
peace and stability through collective bargaining by
defering to the grievance-arbitration procedures which all
parties have voluntarily agreed to follow as the basis for
settling this very dispute and by also dismissing the
complaint as to Bryant without deciding the merits of his
controversy.15
RECOMMENDED ORDER
Upon the basis of the foregoing findings and
conclusions and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, I hereby recommend
that the complaint against Respondent McLean Trucking
Company, Sharonville, Ohio, be dismissed in its entirety.
"International Harvester Co , 138 NLRB 923, 925
"Cf Flint-Kote Co, 149 NLRB 1561, Sinclair Refining Co, 145 NLRB
732, and Montgomery Ward & Co, Inc, 137 NLRB 418, 423
"Cf Unit Drop Forge Division Eaton Yale & Towne, Inc, 171 NLRB
No 73
"Indeed , it would seem anomalous to reward Bryant for not adhering to
his bargain by adjudicating his unfair labor practice charge and to decline
to adjudicate the same charges of the other 12 alleged discriminatees and
thereby penalize them for having adhered to the same bargain by
submitting their controversy to the agreed upon method for settling it