Mosler

National Labor Relations Board - Board Decisions

May 2, 1975

217 N.L.R.B. 685 (N.L.R.B. 1975)

KELLER-CRESCENT COMPANY
Keller-Crescent Company, a Division of Mosler and
Charles M. Davis, Harold Griese , Gerald Chipps,
Billy C. Denton, Everett E . Davison, Arthur E.
Pfeiffer, Robert Van Britson , David Ash, Edison L.
Chanley, Elizabeth Skelton , Daniel Osborne, and
Wayne R. Burdge. Case 25-CA-5210(1-12)
May 2, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On August 21, 1974, Administrative Law Judge Paul
E. Weil issued the attached Decision in this proceeding.
Thereafter, the General Counsel filed exceptions and a
supporting brief, and Respondent filed cross-excep-
tions, a response to General Counsel's exceptions, and
a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and the briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, only to
the extent consistent herewith.
Before addressing ourselves to the issues raised by
the parties, we believe a brief summary of the back-
ground in which the instant controversy arose is in
order.
Respondent manufactures cardboard containers and
related products at its plant located in Evansville, In-
diana. Different units of its employees are separately
represented by Evansville Typographical Union No.
35, herein called the -Union; Local 117 on the Evans-
ville Printing and Pressman and Assistants Union,
A]FL-CIO, herein called the Pressmen; the Interna-
tional Bookbinders Union; and the Lithographers and
Photo Engravers International Union, herein called the
LPIU, respectively. During the summer of 1972, con-
tract negotiations between Respondent and the Press-
men broke down, and the Pressmen called a strike
commencing July 24, 1972,1 and terminating July 29.
During the Pressmen's strike the Charging Parties,
members of the Union, honored the Pressmen's picket
line and failed to report to work. At the termination of
the Pressmen's strike, the Charging Parties returned to
work, at which time Respondent, while allowing them
to return to work, advised Chapel Chairman Wayne R.
Bus dge that Respondent considered the Charging Par-
ties' failure to cross the Pressmen's picket line to be in
violation of their no-strike clause2 and that, accord-
I All dates are 1972 unless otherwise indicated
685
ingly, repercussions would follow. Shortly thereafter
Respondent announced and put into effect a 1-week
suspension of all the Charging Parties, with the excep-
tion of Burdge who received a 2-week suspension, said
suspensions commencing on August 7 and ending Oc-
tober 25.
2 The no-strike clause is found in sec 13 of the contract which reads as
follows:
JOINT STANDING COMMITTEE
Section 13-A Joint Standing Committee of two representatives
each of the Employer and the Union shall be selected. It is agreed that
if neither of the Union representatives is an employee of the commer-
cial branch of the punting trade, that one member shall be selected by
the Union from the employees of above-mentioned commercial branch
of the trade, such member to attend all meetings of the Joint Standing
Committee, but not to have the power to vote on decisions To this
committee shall be referred all disputes which may arise as to the
application of and construction to be placed upon any provision of this
agreement, or alleged violation thereof, which cannot be settled other-
wise. Such joint committee shall meet within seven days after any
question shall have been referred to it for decision by the executive
officers of either party to this agreement. Should the Joint Standing
Committee be unable to agree within ten days, then the membership of
same, shall within five days, select a fifth member If the four (4)
members cannot agree on a fifth member within ten (10) days, such fifth
(5th) member shall be selected in accordance with the procedure of the
American Arbitration Association The decision of the committee shall
be final and binding upon both parties Provided the General Laws of
the International Typographical Union shall not be subject to arbitra-
tion.
It is agreed that the conditions prevailing poor to any dispute shall
be maintained until the Joint Standing Committee has rendered a deci-
sion as provided above except in discharge cases
There shall be no strikes or lockouts during the term of this agree-
ment unless either party refuses to comply with the grievance proce-
dure as outlined hereinabove
It is agreed that the procedures for the settlement of any disputes or
grievances arising under this contract are as defined herein and that the
only recourse each party may have against the other for any damages
alleged to be due for any breach of this contract shall be to the Joint
Standing Committee
Expenses of any arbitration proceedings, excluding attorney fees, are
to be borne equally by both parties.
Approved expenses of any arbitration proceedings, excluding attor-
ney fees, are to be borne equally by both parties.
Under no circumstances shall the arbitrator have the power or right
to add to, subtract from, change or modify any provision of this con-
tract The arbitrator is authorized only to interpret the specific provi-
sion(s) of the contract, and to apply them to the specific facts of the
grievances which are being arbitrated
Other relevant contract provisions include sees. 11 and 12 which read as
follows:
STRUCK WORK
Section 11-The Employer agrees not to require employees to exe-
cute any work received from or destined for another employer whose
employees are locked out or on a strike authorized by the International
Typographical Union under circumstances which make the Employer
an ally of such other employer, and such work shall not be within the
scope of the employment of employees covered by this agreement No
employee shall refuse to execute such work until 24 hours after notice
of such stoke or lockout has been given to the Employer by the Union
Section 12-No employee covered by this contract shall be required
to cross a picket line established because of a strike by , or lockout of,
any other subordinate Union of the International Typographical Union,
when such strike is authorized by, or such lockout is recognized by, the
ITU.
217 NLRB No. 100
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. On deferral
Respondent contended for the first time in its brief
to the Administrative Law Judge that since the Union
has invoked the grievance-arbitration machinery of the
contract to challenge Respondent's suspensions of the
Charging Parties, but has failed to request arbitration
within the prescribed time limits, it has thereby aban-
doned its grievance. From this contention Respondent
argues in effect, if we understand its argument cor-
rectly, that since the subject of the grievance was
thereby resolved against the Union prior to arbitration
and within the grievance provisions, the Board should
not assert jurisdiction herein, citing to the Administra-
tive Law Judge in support of its argument our decision
in Spielberg Manufacturing Company, 112 NLRB 1080
(1955). In his Decision the Administrative Law Judge
failed to address himself to this issue. In its cross-excep-
tions and brief in support thereof, Respondent excepts
to the Administrative Law Judge's failure to do so, and
reasserts its argument before us. While we find that the
Administrative Law Judge's failure to give considera-
tion to this issue was error, for the reasons herein set
forth we find that such error was not prejudicial.
Assuming, arguendo, that Respondent's disciplinary
suspensions were a proper subject for a grievance,
we are nonetheless not persuaded by Respondent's
argument. Thus at the hearing Respondent adduced
some generalized uncontradicted testimony from its
witnesses Everett E. Davison and Fletcher Ellis to the
effect that, at the Union's request, a meeting of union
and management representatives was held at which time
the subject of Respondent's disciplinary suspension
of the Charging Parties was discussed. Thereafter it
appears that a second similar meeting was held, apparently
on August 15. According to Ellis, this meeting "was
asked for as a Joint Standing Committee"; whether
the Union or management asked that this meeting be
considered a joint standing committee is not disclosed
on the record. Based on a composite of the testimony
of Davison and Ellis, at this meeting the Respondent
declined to change its position with respect to imposing
disciplinary suspensions on the Charging Parties, and
accordingly we infer that the Union's representatives
sought to have Respondent rescind its action in this
regard. As Davison testified without contradiction,
no resolution was made of the issue at that time.
Section 13 of the contract between Respondent and
the Union, entitled "Joint Standing Committee," fully
set forth at footnote 2, supra, sets forth the grievance
machinery to be utilized by the parties. It provides, in
part relevant to the deferral issue now under considera-
tion, that all disputes which may arise as to the applica-
tion of an construction to be placed upon any provision
of the agreement, or alleged violation thereof, which
cannot be settled otherwise, shall be referred to a joint
standing committee comprised of two representatives
each of Respondent and the Union, respectively. Sec-
tion 13 further provides that where these four members
of the committee are unable to agree then the member-
ship of same shall select a fifth member and, if the four
members cannot agree on a fifth member, such fifth
member shall be selected in accordance with the proce-
dure of the American Arbitration Association. Finally
it provides that the decision of the committee shall be
final and binding upon both parties.
In our opinion, this evidence fails to support Respon-
dent's contentions and argument. Thus, as heretofore
noted, the record does not clearly disclose that the
Union, as opposed to Respondent, invoked the griev-
ance, machinery. In addition, as we read the contract,
absent agreement by the four members, it was incum-
bent on the four members, including Respondent's rep-
resentatives, to select a fifth member to resolve that
dispute. While Respondent stresses the fact that the
Union's representatives did not request to do so, like-
wise there is no evidence that Respondent's, representa-
tives requested selection of a fifth member. Accord-
ingly, while Respondent argues in effect that the
Union's failure to request the selection of a fifth mem-
ber was tantamount to an abandonment of a grievance
by the Union, and an acceptance of Respondent's posi-
tion with regard to the disciplinary suspensions, it can
be said with equal persuasion that Respondent elected
to abandon the grievance procedure and thereby
conceded to the Union's request for recission of its
disciplinary action, a concession which obviously Re-
spondent has not lived up to. Most significant, how-
ever, is the fact that, as heretofore noted, the dispute
was in any event not resolved, and therefore we cannot
perforce defer to its "resolution" pursuant to
Spielberg. Furthermore, even assuming arguendo that
the dispute here was resolved against the Union within
the grievance machinery as apparently contended by
Respondent, on the basis of the scant evidence before
us we are unable to ascertain whether or not the Spiel-
berg standards have been met here. In relying on defer-
ral pursuant to Spielberg as an affirmative defense, Re-
spondent had the burden of pleading it, which it did not
do, and proving facts sufficient to establish the applica-
bility of the principles established in the Spielberg case.
We find that Respondent has not met that burden here.
Finally, as heretofore indicated,- it is not entirely
clear as to just what Respondent is arguing. If Re-
spondent intended to argue merely that, since the
Union invoked the grievance machinery on behalf of
the Charging Parties and then abandoned it, the Charg-
ing Parties are now estopped3 from reviving-the un-
3 At no time does Respondent specifically use the term "estoppel."
KELLER-CRESCENT COMPANY 687
derlying dispute before the Board, we are unwilling on
the basis of this sparse record to find merit in any such
estoppel argument.
2. On the merits
The Administrative Law Judge found that the
Charging Parties were given a disciplinary suspension
for refusing to cross the Pressmen's picket line. The
Administrative Law Judge further found that absent
any other evidence in the record, the no-strike prohibi-
tion set forth in section 13 is expressly inapplicable in
the instant case, because the waiver of the right to strike
therein is only as extensive as the scope of the grievance
and arbitration procedure, which in turn extends only
to disputes which may arise as to the application of and
co nstruction to be placed upon any provision of the
agreement, or alleged violation thereof. He therefore
concluded that, inasmuch as the issue of the strike
engaged in by the Charging Parties was that of the basic
strike of the Pressmen, i.e., the Pressmen's contract,
and since the Pressmen's contract was by no means
cognizable under the terms of the Union's contract, the
dispute which gave rise to the Charging Parties' strike
was not a grievable dispute, and the strike did not
therefore fall within the no-strike ban of section 13. We
agree.'
Nonetheless, the Administrative Law Judge also
found in effect, as contended by Respondent, that sec-
tion 12 of the contract, coupled with collateral evidence
of contractual intent with respect thereto, revealed an
intent on the part of the parties to encompass within
section 12 a prohibition from honoring any picket line
except that of a subordinate union of the Union's Inter-
national affiliate, the International Typographical
Union, herein called ITU. Otherwise stated, the Ad-
ministrative Law Judge found that the language of sec-
tion 12 of the contract, coupled with collateral evidence
as to the parties intent vis-a-vis section 12, warranted
the conclusion that the Union had therein waived the
right of its members to honor a picket line established
by any union other than an affiliate of the ITU. Ac-
cordingly, the Administrative Law Judge found that in
refusing to cross the Pressmen's picket line the Charg-
ing Parties were engaged in unprotected activity, and
4 See, Gary-Hobart Water Corporation, v NL R.B., 511 F 2d 284 (C A
7, 1975), enfg . 210 NLRB 742 (1974). In our view the circumstances of the
instant case present an even stronger basis than existed in Gary-Hobart for
the conclusion that the no-strike pledge here did not encompass sympathy
strikes Thus, here, we note the additional factor that the contract expressly
limits the powers of the arbitrator, divesting him of any power to add to,
subtract from, change, or modify any pro vision of the contract, and authoriz-
ing him "only to interpret the specific provisions of the contract, and to apply
them to the specific facts of the grievances which are being arbitrated."
(Emphasis supplied.) Moreover, we note that the damages clause of sec 13
provides "It is agreed that the procedures for the settlement of any disputes
or grievances arising under this contract are as defined herein . ." (Em-
phasis supplied) In our opinion these provisions buttress the conclusion that
the grievance machinery here was intended to resolve only disputes arising
under the contract
Respondent's disciplinary suspension of the Charging
Parties for engaging in such activity was not therefore
violative of Section 8(a)(1) of the Act. We believe the
Administrative Law Judge's findings and conclusions
in this regard are in error.
As we recently reaffirmed,' it is now well estab-
lished that the right to engage in a sympathy strike or
to honor another union's picket line is a right created
and protected by the Act. It is equally well established
that such a statutorily created and protected right may
be waived by appropriate provisions in a collective-
bargaining agreement.' And while statutory rights
may be waived, the Board and the courts have repeat-
edly emphasized that a waiver will not be lightly in-
ferred and must be shown by "clear and unmistakable"
language.' Thus a statutory right, such as the right to
honor picket lines, exists unfettered and undiminished
in the absence of some explicit language contained in
the contract unmistakably waiving or in some manner
limiting it, or language, warranting resort to considera-
tion of collateral evidence of contractual intent, which
evidence clearly and unequivocally establishes that the
union understood and intended said language to waive
or limit the statutory right, despite the lack of the
reduction of this intent into clear and express language
in the contract. s
Turning then to the language of section 12 (see fn. 2,
supra), it is clear that this language does not in any
manner purport to waive or limit the Charging Parties'
right to honor another union's picket line. To the con-
trary, the language of section 12 is, significantly, per-
missive, and creates as a matter of contract right that
which theretofore existed only as a matter of statutory
right. Indeed, section 12 specifically preserves the
statutory right of the Charging Parties to honor a
picket line established by a subordinate union of the
ITU. Moreover, on its face section 12 is entirely con-
sistent with the reservation of the statutory right to
honor picket lines established by other unions. Thus we
find, as did the Administrative Law Judge, that section
12 of the contract does not expressly waive the right to
honor another union's picket line. Nonetheless, the Ad-
ministrative Law Judge, applying the maxim inclusio
unius est exclusio alterius,9 found that the language
used in section 12 gave rise to the inference "that em-
ployees may be required to cross a picket line estab-
lished by any union other than the ITU." In our view,
the Administrative Law Judge's application of this
5 Gary-Hobart Water Corporation, supra
6 Mastro Plastics Corp and French-American Reeds Mfg. Co., Inc. v
NL.R.B., 350 U S 270 (1956), Gary-Hobart Water Corporation, 210 NLRB
742
7 Gary-Hobart Water Corporation, supra, and cases cited at In 9 thereof.
i New York Mirror, Division of the Hearst Corporation, 151 NLRB 834
(1965), Kennecott Copper Corporation (Chino Mines Division), 148 NLRB
1653 (1964)
9 "Where one is expressly included, all others are excluded."
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maxim and the inference drawn as a result thereof was
in the circumstances present here clearly erroneous, for
the Board and the courts have specifically rejected its
application, and the inference drawn as a result thereof
by the Administrative Law Judge, where part but not
all of a statutory right is reduced to a specific contrac-
tual right."Q To- the contrary, the inference, if any, to
be drawn . is a general intent to memorialize in the
contract the statutory right, not to limit it." Hence
we find that the language of section 12 neither expressly
nor impliedly waives the right of the Union's members
to honor the picket line of a union other than a subordi-
nate union of the ITU, and we reject the Administra-
tive Law Judge's finding that the contract language
gives rise to the inference that employees could be re-
quired to cross picket lines of other unions. Moreover,
the Administrative Law Judge found that said infer-
ence was buttressed by collateral evidence consisting of
the bargaining history surrounding the adoption by the
parties of section 12. Even were we to agree that the
inference found by the Administrative Law Judge ex-
isted, which we do not, we would not find that said
inference was butteressed by the bargaining history sur-
rounding the adoption of section 12. Thus the bargain-
ing history surrounding the adoption by the parties of
the language of section 12 is contained in the uncon-
tradicted testimony, implicitly credited by the Ad-
ministrative Law Judge, of Respondent's witnesses
James Riddle and Fletcher Ellis; the Union's printed
contract proposals to Respondent, which document
consists of three columns, the first containing the lan-
guage of the "old contract," the second containing the
Union's proposal, and the third entitled "union
proposal accepted"; and some handwritten notes taken
by Riddle during negotiations.
As testified to by Ellis, the language of section 12 of
the current contract has existed unchanged in succes-
sive contracts covering a period of approximately 20
years preceding the current contract. As testified to by
Riddle, commencing in November 1971 the parties met
approximately 10 times before reaching agreement on
the terms of the current contract in April 1972. During
these negotiations the subject of picket lines was dis-
cussed at three of the negotiating sessions. Thus the
Union initially proposed that the language of section 12
be changed to read as follows: "No employee covered
by this contract shall be required to cross a picket line
established' because of a strike by any other union,
when such strike is authorized." As testified to by Rid-
dle, Respondent's reply to this proposal was merely
10 NL.R.B. v Otis Elevator Company, 208 F.2d 176 (C.A 2, 1953),
N.L.R B. v J. H Allison & Company, 165 F.2d 766 (C A. 6), cert denied
335 U.S 905 (1948); The Timken Roller Bearing Company, 138 NLRB 15,
28 (1962), enfd 325 F.2d 746 (C.A 6), cert denied 376 U.S 971 (1963);
Leland-Gifford Company, 95 NLRB 1306 (1951).
11 Ibid
that" . . . there was no way that we were going to
provide this type of broad language which provided
their protection over cases that we may not even-be
involved in."12 The Union then retorted, saying
wasn't it only right that Respondent provide it with the
same type of language that other unions had in their
contracts with Respondent? According to Riddle, Ellis
then asked the Union what contracts it meant, and the
Union replied that it meant the LPIU contract. The
Union then read the picket line provisions contained in
the LPIU contract," which have the effect of protect-
ing LPIU members from discipline or discharge for
honoring a picket line established by any union with
whom Respondent has a contract - Respondent then
pointed out to the Union that the Union's initial
proposal was more encompassing than the picket line
language contained in the LPIU contract. The Union
then proposed that section 12 be changed to read the
same as the picket line language of the LPIU contract.
According to Riddle, Respondent's direct response to
this was again negative , stating, "What we will give you
and this is all we will give you with regard to picket line
language is what you alread have . . . ." (Emphasis
supplied.) Thereafter, as testified to by Ellis, there
reached a point in the negotiations where proposed
language changes in five contract clauses remained un-
resolved. Two such clauses concerned changes in lan-
guage from the preceding contract proposed by the
Union, one being the changes proposed to section 12
discussed above. Three such clauses concerned changes
in language from the preceding contract proposed by
Respondent, one being changes in the preamble clause
language, the other clauses unidentified in the record.
Accordingly, at this juncture the Union proposed that
it would drop its two clauses in return for the Respon-
dent's dropping its three clauses. Respondent agreed.
In this manner, the Union failed to secure either the
picket line language it initially proposed or that con-
tained in the LPIU contract, and the parties moved on
to a discussion of economics. We note and find signifi-
cant the fact that at no time during these discussions
did Respondent ever propose any language which
sought to limit the Union's statutory right to honor
picket lines or engage in a sympathy strike. As we
recently observed however, "Unless it specifically
waives it, the [Union] has the right to honor picket;
lines. It is the Respondent which must obtain contrac-
tual language to limit such right in clear and unmistak-
able terms.s14 Nor for that matter did the Respondent
12 Whatever Respondent meant by this reply, in so responding it is clear
that Respondent did not take the position that the Union's proposal repre-
sented a departure from an understanding reached in prior contracts to the
effect that sec 12 prohibited the Union's members from honoring any picket
line other than that of a union subordinate to the ITU.
13 The LPIU contract was not introduced in evidence
14 See Gary-Hobart Water Corporation, supra at fn. 20.
KELLER-CRESCENT COMPANY 689
ever so much as take the position that it viewed the
longstanding language of section 12 as prohibiting the
Union's members from honoring another union's
picket line.
Indeed, having taken the adamant position that it
would "in no way" concede to the Union's proposals,
and that "all we will give you"is the language of the
previous contract, the Respondent, without giving the
explanation it now urges before us, as to why it was
taking such an adamant stance, made the Union the
rather unwilling victim of a virtual removal of the mer-
its of the proposal from the bargaining table.15 More-
over, neither party ever referred to or juxtaposed the
no-strike prohibition contained in section 13 of the
contract during the course of their discussions concern-
ing section 12 and the proposed changes thereto. In-
deed, at least with respect to the Union's initial
proposal, Respondent relied solely on the fact that it
was opposed to it because it would, in Respondent's
view, cover situations "that [Respondent] may not even
be involved in . . . ." and not, most significantly, be-
cause the no-strike pledge contained in section 13 ran
counter to the Union's proposal. Nor does the record
reflect that during whatever discussion was had con-
cerning section 13 of the contract, and more particu-
larly the no-strike pledge contained therein, did either
party refer back to or juxtapose section 12 in the con-
text of discussing section 13. Indeed the only record
evidence concerning the bargaining history surround-
ing, the parties' adoption of the language of section 13
consists of the Union's printed proposals, which indi-
cate that either the Union or Respondent proposed to
delete the damages language now contained therein,
which proposal obviously was not agreed to. Some ex-
planation, however, for the parties failure to discuss
section 12 along with section 13 or vice versa appears
in the record. Thus we note that section 12 of the
contract appears, along with section 11, under the gen-
eral heading "Struck Work," and is therefore separate
and apart from section 13, entitled "Joint Standing
Committee," And a fair reading of sections 11 and 12
discloses that the apparent intendment and principal
thrust of each of these sections is to insure the Union's
solidarity with its International and with unions af-
filiated with the International, by insulating conduct
undertaken by the Union's members to demonstrate
such solidarity from conflicting and divisive directions
or orders as might be received from Respondent. More-
over, we note that, inasmuch as section 11 specifically
uses the term "ally," a term whose meaning must be
found solely in case law as it does not exist per se in the
statute, such generally indicates that both sections 11
and 12 were intended to incorporate existing statutory
rights as embellished by case law into specific contrac-
1"I Beacon Piece Dyeing and Finishing Co., Inc., 121 NLRB 952 ( 1958).
teal provisions, and not to limit any such rights.
From the foregoing bargaining history we conclude
that the parties never discussed the concrete issue of
whether the Union's members did or did not have the
right under the contract to honor another union's
picket line. Whether the parties' failure to discuss this
concrete issue was due to oversight or, as is more likely,
to a failure to recognize its eventual importance during
the contract period16 is unexplained. In any event we
are satisfied that the bargaining history here fails to
establish that the Union has waived the statutory right
of its members to honor another union's picket line, or
has acquiesced in any limits on said right. In our opin-
ion, the bargaining history here merely shows that the
Union attempted unsuccessfully to include in its con-
tract a statement of its members' statutory right to
honor, another union's picket line. Such an unsuccessful
attempt, however, is not evidence that the Union
waived said right."
Next considered is the conduct of the Union's repre-
sentatives and the International during the course of
the strike, which, Respondent alternatively argued, es-
tablishes that the Union understood, and therefore in-
tended, that the contractual language of section 12
meant that the Union's members were prohibited from
honoring another union's picket line. Finding that the
language of section 12 impliedly meant that the
Union's members were prohibited from honoring any
picket line except that of a subordinate union of the
ITU, the Administrative Law Judge found that this
inference was in fact intended by the Union when one
looked to the conduct of the International and the
Union's representatives during its members' sympathy
strike, herein more fully set forth. We disagree. Thus,
quite apart from the fact that we find no basis for such
an inference in the language of section 12 as explained
above, assuming arguendo the existence of such an in-
ference, we are nonetheless unwilling to find that the
International's and union representatives' conduct dur-
ing the course of its members' sympathy strike clearly
establishes that the actual intent of section 12 was to
prohibit union members from honoring another
union's picket line.
At the outset we note that while the president of the
ITU approved the parties' agreement here as being in
compliance with the laws of the ITU, the contract
specifically provides that "the approval of this agree-
ment by the International Typographical Union as
complying with its law does not make it a party
hereto." Accordingly, we attach little weight to the
International's conduct during the course of the strike
in any event.
16 We note in this regard that the record discloses that there had not been
a strike at Respondent's plant since the 1940's
17 Cloverleaf Di vision ofAdams Dairy Co., 147 NLRB 1410, 1413 (1964).
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record reflects that on July 22, the Friday
preceding the Pressmen's strike, Respondent advised
Chapel Chairman Burdge that in Respondent's view
sections 12 and 13 of the contract prohibited the Union
from honoring the anticipated picket line of the Press-
men. Thereafter, Burdge contacted Union President
Donald E. Clark, who told Burdge to telephone him in
the event a picket line was in fact established by the
Pressmen. On the following Monday, July 25, in the
face of a Pressmen's picket line, Burdge telephoned
Clark as directed. Clark appeared at the plant and,
after ascertaining from the Pressmen that it was an
authorized strike, addressed the members of the Union
who were honoring the Pressmen's picket line, telling
them that he would notify the International and telling
them to honor the contract. On Monday, July 25, Re-
spondent sent Burdge a telegram,18 alleging that the
Union's membership was in violation of section 12 (sig-
nificantly no mention was made of section 13) and
threatening legal action against the Union.
On Wednesday, July 27, Clark again addressed the
Union's members at Respondent's plant who were con-
tinuing to honor the Pressmen's picket line, telling
them that he had heard from the International and that
the International said to honor the contract. On July
26, Clark telegraphed19 Respondent stating in sum
that the membership recognized the contract, charac-
terizing Respondent's threat of legal actions as harass-
ment and intimidation, and stating that the Union was
willing to meet with Respondent to discuss the matter.
We note that at no time did Burdge, Clark, or any
International representative ever state to Respondent
that the strike action of their membership was in viola-
tion of their contract, nor did they at any time specifi-
cally urge the membership to cease their strike and
cross the Pressmen's picket line. In our view the con-
duct of the Union's agents was at best equivocal, appar-
ently undertaken in an attempt to save whole the Union
from any monetary damages that might be sought in a
18 The full text of the telegram is as follows:
Your union and its membership is engaged in an illegal strike in
violation of Section 12 of the labor agreement between Keller Crescent
Company and ITU, Local 35 Your members should cease this illegal
strike and report to work immediately In the event that you might have
a grievance the Keller Crescent Company is ready and willing to abide
by the grievances and arbitration procedures provided in the, contract.
Be advised that if you do not return to work by Thursday July 27th
[sic] the Keller Crescent Company will have to take legal action against
your union and its membership. [Punctuation supplied.]
19 The full text of the telegram is as follows:
The members of Local 35 ITU recognized the contract we have with
Keller-Crescent Company Our members are presently concerned
about personal intimidation in the event the picket line presently estab-
lished at your business is crossed Local 35 considers the threat of legal
proceedings referred to in your telegram dated 7/25/72 as a mere
attempt to harass and intimidate members employed at Keller-Crescent
Company. Local 35 stands ready to meet, discuss, and negotiate a
solution to the problem at your convenience [Punctuation supplied ]
breach of contract proceeding brought by Respondent,
as threatened. Accordingly, we find that at no time
during the strike did any union agent express the direct
and unequivocal view that its members were required
by the contract to cross the Pressmen's picket line,
evidence of which would be required to conclude that
at best ambiguous relevant contract provisions were
understood to, and intended to, prohibit the honoring
'of the Pressmen's picket line.20 It need not be bela-
bored that where one seeks to clarify ambiguous con-
tract terms by resort to collateral evidence, such collat-
eral evidence, especially dehors the contract, must at a
minimum be clear and unequivocal on its face. More-
over, we view as irrelevant to a determination of the
waiver issue here the subjective understanding of but
one of the Charging Parties, to wit, Davison, to the
effect that he understood Clark's announcements to
mean that he should cross the Pressmen's picket line,
and accordingly, we find erroneous the Administrative
Law Judge's reliance on this finding, among others, in
support of his conclusion now under consideration.
Actions often speak louder than words, and there is no
evidence that any of the Union's members who were
honoring the Pressmen's picket crossed the line after
either of Clark's pronouncements to them to honor the
contract.
Thus in the Kellogg Companl case where, as here,
the bargaining history leading up to the contract failed
to disclose an intention to prohibit the crossing of
another union's picket line, we were unwilling to find
that the union's conduct, dehors the contract, in telling
its members that their failure to cross the picket line of
their fellow employees represented by another union
violated their contract, was sufficient to establish that
the union had intended to waive in its contract the right
of its members to observe the picket line of another
union. A fortiori in the instant case, where the Union's
conduct during the course of its members' strike is at
best equivocal, we are unwilling to find such a waiver.
On the basis of all the foregoing, therefore we find
that the evidence in this case falls short of the requisite
standard of proof that must be met to establish a waiver
by the Union of a statutory right-namely, an expres-
sion by the Union in "clear and unmistakable"
language22 showing that the Union consciously relin-
quished said right. Accordingly, when the Charging
Parties failed to cross the Pressmen's picket line; they
were engaged in protected concerted activity, and Re-
spondent's suspensions of them for doing so constituted
a violation of Section 8(a)(1) and (3) of the Act, for
which we herein order an appropriate remedy. As the
20 Kellogg Company, 189 NLRB 948 (1971)'(Member Kennedy dissent-
ing), enfd 457 F 2d 519 (C A 6, 1972)
21 189 NLRB 948
22 The Timken Roller Beat ing Company, supra; The Fafnir Bearing Com-
pany, 146 NLRB 1582 (1964), Gary-Hobart Water Corporation, supra.
KELLER-CRESCENT COMPANY 691
remedy would be the same in any event , we find it
unnecessary to reach the issue raised by the General
Counsel to the effect that Respondent independently
violated Section 8(a)(1) and (3) of the Act when it
suspended Chapel Chairman Wayne R. Burdge for an
additional week allegedly solely because of his position
in the Union . C£' Pontiac Motors Division , General Mo-
tors Corporation, 132 NLRB 413 ( 1961).
In finding as we have that the Union has not waived
the right of its members to honor another union's
picket line or engage in a sympathy strike, we have
carefully examined the Supreme Court's decision in
N.L.R.B. v. Rockaway News Supply Company,
Inc.,23 and the Board 's decision in the Hearst Corpora-
tion, News American Division,24 relied on by the Re-
spondent, in light of the fact that in both of these cases
some of the facts there concededly bear a considerable
resemblance to the facts here and both cases reach a
result contrary to the one reached here . In our view
both of these cases are distinguishable from the instant
case. Thus, in Rockaway, the Court determined in ef-
fect that the nonstrike pledge there ,25 broader than
the one in the instant case , prohibited the honoring of
another union 's picket line or engaging in a sympathy
strike. In so finding , the Court observed and accepted
the respondent 's offer of proof to the effect that, during
the negotiations for the contract there, "one of the
demands made by the union was a clause in the con-
tract with, reference to work stoppages which would have
sand `No man shall be required to cross a picket line,'
that this clause was rejected by respondent and the
union acquiesced in the rejection and consented to the
no-strike - clause as - above recited." (Emphasis sup-
pliLed.) Hence it appears that in Rockaway the union's
picket line language was raised in the context of discus-
sions concerning the no-strike , no-lockout , no-cessa-
tion-of-work provisions, and as an exception thereto,
and, having been rejected by the respondent in this
context, a finding of acquiescence was properly war-
ranted . In the instant case, however, as previously in-
dicated , the parties did not discuss the Union's
proposed picket line language in the context of the
no-strike pledge, nor is there any evidence that in the
context of the no-strike pledge discussions either party
juxtaposed either the picket line language of section 12
as it now reads or the proposed changes thereto.
In the Hearst case, two contracts , one a Teamsters
contract and the other an ITU contract , each contain-
ing a no-strike pledge,26 and each such pledge broader
23 345 U S 71 (1953).
24 161 NLRB 1405 (1966).
25 "No strikes, lockouts or other cessation of work or interference
therewith shall be ordered or sanctioned by any party hereto during the term
hereof except as against a party failing to comply with a decision, award, or
ordler of the Adjustment Board." (Emphasis supplied )
than the no-strike pledge in the instant case, were under
scrutiny to determine whether or not they prohibited,
or waived the right to engage in, a sympathy strike. We
adopted the Trial Examiner's findings, which included
a finding to the effect that the contract provisions
standing alone did not do so. Nonetheless, based on
collateral evidence of intent, the Trial Examiner'found
that the no-strike pledge in both contracts was intended
by the parties to prohibit sympathy strikes or the hon-
oring of another union's picket line. Thus, collateral
evidence was received- with respect to the negotiations
resulting in the Teamsters then current contract and
the contract immediately preceding same. This evi-
dence disclosed that during both negotiations the
Teamsters proposed a clause reading as follows:
It shall not be a violation of this agreement and-it
shall not be the 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.
[Emphasis supplied.]
As found by the Trial Examiner, this proposal was
discussed, the joint newspaper companies refused to
agree, and the clause was discarded. From the forego-
ing it is readily apparent that a crucial distinction exists
between the bargaining history concerning the picket
line language proposed by the Teamsters in the Hearst
26 The Teamsters contractual no-strike pledge read in pertinent part as
follows-
Continuous and uninterrupted delivery by the Companies of their
newspaper and orderly collective bargaining relations between the
Companies and the Union to secure prompt and fair disposition of
grievances being an essential consideration for this Agreement, it is
agreed that the Union and its members individually and collectively
will not, during the term of this Agreement, cause, permit, or take part
in any strike, sit down, picketing or other curtailment or restricting of
the delivery of the Companies' newspapers until the procedure here-
inafter provided for the settlement of grievances has been exhausted,
and the Companies agree not to engage in any lockouts [Emphasis
supplied ]
The ITU's contractual no-strike pledge read in pertinent part:
The language and spirit of this Agreement guarantee the prompt and
faithful performance by the Union and the Office of all obligations
imposed by the terms of this Agreement. Both parties agree that when-
ever any differences of opinion as to the rights of either under the
Agreement shall arise, or whenever any dispute as to the construction
of the contract or any of its provisions takes place, such difference or
dispute shall be promptly resolved in the manner provided in this
contract without strike, lockout, diminution or interruption of any
kind, to the end that fruitless controversies shall be avoided, good
feeling and harmonious relations be maintained, and the prosecution of
the business in which the parties have a community of interest shall be
assured
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case, and the bargaining history concerning the picket
line-language proposals here. Thus, in the Hearst case,
the Teamsters proposal specifically provided that "It
shall not be a violation of this Agreement" which
choice of language strongly indicates that the Team-
sters negotiators understood that absent this proposed
provision the agreement, more specifically the no-strike
pledge contained therein, prohibited the refusal to cross
another union's picket - line or engage in a sympathy
strike. Accordingly, in these circumstances, the Team-
sters acquiescence in the employer's refusal to accept its
picket line language proposal, coupled with acceptance
of the broad no-strike pledge language, warranted the
inference that the Teamsters understood and intended
thereby to waive the statutory right of its members to
honor another union's picket line or engage in a sympa-
thy strike. Any doubt that such was its understanding
and intention was resolved when, as found by the Trial
Examiner, the president of the Teamsters, during the
course of its members' sympathy strike, told the em-
ployer that "in his opinion a refusal to cross the picket
line would dishonor the agreement." In the instant
case, however, as previously indicated, neither the lan-
guage of the Union's picket line proposals nor the bar-
gaining history surrounding same warrants the infer-
ence that the Union understood and intended that,
absent their-adoption, the agreement eventually struck
prohibited its members from honoring another union's
picket line. Nor is there present in the instant case an
admission to Respondent on the part of a union repre-
sentative that indeed the membership's honoring of the
Pressmen's picket line dishonored their contract.
With respect to ITU's contract in the Hearst case,
the 'Trial Examiner relied on collateral evidence of con-
tractual intent consisting solely of some positive state-
ments made contemporaneously with the sympathy
strike action -of ITU'S members, by virtually all of
ITU's officers, both local and International, to the ef-
fect that the contract required its members to work
behind the picket line, in reaching his- determination
that ITU's actual contractual intent was to surrender
the right to not cross a picket line. Indeed, commenting
on the Hearst case, in the Kellogg Company27 case, we
characterized this collateral evidence concerning the
views of the officers of both the Teamsters and ITU
expressed contemporaneously with the sympathy strike
action of their respective members as "direct and un-
equivocal" and "most persuasive in the context of no-
strike clauses broad enough to be interpreted as forbid-
ding a refusal to cross a picket line." In the instant case,
as heretofore found, no such collateral evidence is pre-
sent.
27 189 NLRB 948
The Remedy
We have found, contrary to the Administrative Law
Judge, that Respondent engaged in certain unfair labor
practices in violation of Section 8(a)(1) and (3) of the
Act, by suspending its employees Charles M. Davis,
Harold Griese, Gerald Chipps, Billy C. Denton, Ever-
ett E. Davision, Arthur E. Pfeiffer, Robert Van Brit-
son, David Ash, Edison L. Chanley, Elizabeth Skelton,
Daniel Osborne, and Wayne R. Burdge for engaging in
protected concerted activities. In our opinion, it is_nec-
essary, in order to effectuate the purposes of the Act,
that Respondent be ordered to cease and desist from
engaging in such unlawful activity and to expunge from
the employment records of the above-named employees
any record of said suspensions and to make said em-
ployees whole for any loss of pay or other employment
benefits they may have suffered as a result of said sus-
pensions . See Southern Greyhound Lines, Division of
Greyhound Lines, Inc., 169 NLRB 627 (1968). Backpay
shall be computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), with inter-
est added thereto in the manner set forth in Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact and upon the
record as a whole, we make the following:
CONCLUSIONS OF LAW
1. Keller-Crescent Company, a Division of Mosler,
is an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the- Act. -
2. Evansville Typographical Union No. 35, Interna-
tional Typographical Union, and Local 117 of the
Evansville Printing and Pressmen and Assistants
Union , AFL-CIO, are each a labor organization within
the meaning of Section 2(5) of the Act.
3. Respondent has interfered with, restrained, and
coerced employees in the exercise of rights guaranteed
in Section 7 of the Act by suspending Charles M . Davis,
Harold Griese, Gerald Chipps, Billy C. Denton, Ever-
ett E. Davison, Arthur E. Pfeiffer, Robert Van Britson,
David Ash, Edison L. Chanley, Elizabeth Skelton,
Daniel Osborne, and Wayne R. Burdge, thereby violat-
ing Section 8(a)(1) of the Act. -,
ORDER
Pursuant to Section 10(c) of the National, Labor Re-
lations 'Act, the National Labor Relations Board
hereby orders that Respondent, Keller-Crescent Com-
pany , a Division of Mosler , Evansville, Indiana, its
officers , agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Interfering with , restraining, and coercing em-
ployees in the exercise of rights guaranteed in Section
KELLER-CRESCENT COMPANY 693
7 of the Act by suspending Charles M. Davis , Harold
Griese, Gerald Chipps, Billy C . Denton, Everett E.
Davison, Arthur E. Pfeiffer , Robert Van Britson, Da-
vid Ash , Edison L . Chanley , Elizabeth Skelton , Daniel
Osborne , and Wayne E. Burdge, because they had en-
gaged in protected concerted activities.
(b) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action:
(a) Expunge from the employment records of the
employees named in paragraph 1(a), above , any entry
concerning their suspensions for alleged breach of con-
tract.
(b) Make the employees named in paragraph 1(a),
above , whole for any loss of pay they may have in-
curred by reason of Respondent 's discrimination
against them in the manner described above in "The
Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports , and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Post at its facility in Evansville, Indiana, copies
of the attached notice marked "Appendix ."28 Copies
of said notice, on forms provided by the Regional Di-
rector for Region 25 , after being duly signed by Re-
spondent 's authorized representative, shall be posted
by Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced , or covered by any
other material.
(e) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
MEMBER PENELLO, concurring in part and dissenting in
part:
I agree for the reasons set forth in the majority opin-
ion that the Board should not decline to assert jurisdic-
tion herein by deferring to Spielberg, supra. However,
contrary to my colleagues , it is my view that the sympa-
thy strike of the Charging Parties and their refusal to
cross the picket line of the Pressmen were in breach of
section 12 of the labor agreement between the Re-
spondent and ITU Local 35, and therefore constituted
unprotected activity . For the language of section 12
when considered in conjunction with collateral evi-
dence of contractual intent reveals clearly and
unmistakably29 that ITU Local 35 contractually sur-
rendered the statutory right of the employees whom it
represented to engage in such activity.
Section 12 provides:
No employee covered by this contract shall be
required to cross a picket line established because
of a strike by, or lockout of, any other subordinate
Union of the International , Typographical Union,
when such strike is authorized by, or such lockout
is recognized by the ITU.
In my opinion , this language expressly granting the
employees the right to refuse to cross a picket line of
a subordinate union of the fTU inescapably implies
that the ITU Local 35 members were prohibited from
honoring any other picket line.
Any doubt about this conclusion is removed by the
following collateral evidence . Thus , in the contract
negotiations preceding the execution of the most recent
contract, ITU Local 35 sought to enlarge the reach of
section 12 so that it would permit employees to respect
the authorized picket line of any union and failing that
it sought, again unsuccessfully, to expand section 12 to
permit the Union to honor any picket line set up by
any union recognized by Respondent.
As the Board said in Gary-Hobart, supra:
For the Supreme Court in Rockaway News, and
the Board in Hearst, in holding sympathy strikes
unprotected, relied on the fact that during con-
tract negotiations the unions involved had sought
to include a provision expressly permitting em-
ployees to honor picket lines of another union,
which proposals were rejected by the respective
employers . Based on the rationale that by attempt-
ing to obtain such non-strike limitations the
unions therein indicated they believed they did not
have such picket line rights under the respective
no-strike clauses , the Court and Board respec-
tively found the no-strike provisions should be
broadly construed.`
Applying this reasoning to the facts herein , by its un-
successful efforts to broaden the no -strike clause, ITU
Local 35 showed that it did not believe that section 12,
as written , covered sympathy strikes.31
's In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
29 See fn. 7 of the majority opinion
30 210 NLRB at 746.
31 The situation in Gary-Hobart, supra, which I signed and to which I still
subscribe , was the converse of the one herein, as there the Board found that
the respondent 's attempt , without success , to broaden the no-strike clause
(Continued)
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The conduct of the representatives of ITU Local 35
and its International during the course of the strike is
further evidence that the ITU Local 35 and its Interna-
tional understood that section 12 meant that the
Union's members were prohibited from refusing to
cross the picket line of a union which was not a subordi-
nate union of the ITU. The president of ITU Local 35,
Clark, appeared at the plant on July 25, and told the
members of his Union who were refusing to cross the
Pressmen's picket line to "honor the contract." Two
days later, Clark again advised the members of his
Union who were continuing to refuse to cross the Press-
men's picket line to "honor the contract" and also told
them the International had said that it expected them
"to live up to our contract." In a situation where the
employees -were already refusing to cross the picket
line, to direct them to "honor the contract" can reason-
ably be interpreted as telling them to do something
other than what they were already doing, which in this
case would be to cross the picket line. This interpreta-
tion is supported by the fact that at least one present
union official, Chapel Chairman Davidson, who had
been on the ITU Local 35 negotiating committee, un-
derstood that Clark was telling them to cross the picket
line and to go back to work.
In affirming the Board in The Hearst Corporation,
News American Division, the court said:
The union tradition of honoring picket lines is
admittedly strong, but, just as its waiver in formal
contract language is not to be precipitately as-
sumed , so it is unlikely that responsible, ex-
perienced , and authoritative union leaders will
lightly interpret their own handiwork as barring
its observance.3z
APPENDIX-
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE -
NATIONAL LABOR RELATIONS-BOARD
An Agency of the United States Government
The National Labor Relations Act gives you, as em-
ployees, certain rights, including the right of self-organ-
ization ; to form , join , or help unions ; and to bargain
collectively through a representative of your own
choosing . Accordingly, we give you these assurances:
WE WILL NOT interfere `with, - restrain, or coerce
employees in the exercise of rights guaranteed in
Section 7 of the National Labor Relations Act by
suspending or otherwise discriminating against
any employees because of their refusal to cross
lawful picket lines established at our plant.
WE WILL NOT in any like or related manner inter-
fere with , restrain , or coerce our employees in the
exercise of the rights guaranteed them by Section
7 of the Act.
WE WILL expunge from the employment records
of employees Charles M. Davis, Harold Griese,
Harold Chipps , Billy C. Denton , Everett E. Davi-
son, Arthur E. Pfeiffer, Robert Van Britson, Da-
vid Ash, Edison L . Chanley, Elizabeth Skelton,
Daniel Osborne , and Wayne R. Burdge any entry
of a suspension resulting from their honoring of
the picket line of the Evansville Printing and
Pressmen and Assistants Union, AFL-CIO,
which was established July 24, 1972; and disestab-
lished July 29, 1972, and we will make the above-
named employees whole for any loss of earnings
they may have suffered as a result of said suspen-
sions.
KELLER-CRESCENT COMPANY, A
DIVISION OF MOSLER
In conclusion, in these circumstances , it is clear that
under section 12 of the contract ITU Local 35 waived
the employees' statutory right to lend support to the
striking pressmen by refusing to report to work. Since
such activity by employees in violation of their collec-
tive-bargaining contract is not statutorily protected,
Respondent lawfully took reprisal action against the
Charging Parties. Accordingly, I would adopt the
recommended Order of the Administrative Law Judge
dismissing the complaint.33
to cover sympathy strikes was significant evidence that it did not believe its
no-strike clause as it stood covered sympathy strikes
32 The News Union of Baltimore [Hearst Corp., News American
Division] v NL R.B., 393 F 2d 673, 678 (C.A D C., 1968), enfg 161 NLRB
1405 (1966).
33 In view of the above, I find it unnecessary to consider, as did the
Administrative Law Judge, the applicability of sec 13 of the contract to the
strike -
DECISION
Statement of the Case
PAUL E. WEIL, Administrative Law Judge: On October 10,
1972, Charles, M. Davis, Harold Griese, Gerald Chipps, Billy
C> Denton, Everett E. Davison , Arthur E. Pfeiffer, Robert
Van Britson, David Ash, Edison L. Chanley, Elizabeth Skel-
ton, Daniel Osborne, and Wayne R. Burdge each filed
charges with the Regional Director for Region 25 of the
National Labor Relations Board, hereinafter called the
Board , alleging that Keller-Crescent Company, a Division of
Mosler, hereinafter called Respondent , violated Section
8(a)(3) and (1) of the Act by imposing discipline on the
individual named Charging Parties because they refused to
cross a picket line. On November 1, 1972, Wayne R. Burdge
filed an amended charge with the same allegations. On May
KELLER-CRESCENT COMPANY
8, 1974, the Acting Regional Director for Region 25 issued
an order consolidating the cases for hearing, a complaint, and
a notice of hearing. The complaint makes the same allegation
as those contained in the charges, i.e., that Respondent dis-
criminated against the named Charging Parties because they
engaged in a sympathy strike in violation of Section 8(a)(3)
and (1) of the Act. By its duly filed answer, Respondent
admits that certain employees did not report for work during
the period of the strike, denies that these employees refused
to cross the picket line or engaged in a sympathy strike, and
admits the imposition of the discipline complained of. On the
issues thus drawn the matter came on for hearing before me
in Evansville, Indiana, on July 2, 1974. All parties were pre-
sent and represented by counsel and had an opportunity to
call and examine witnesses and to adduce relevant and
material evidence. At the close of the hearing the parties
waived oral argument. Briefs have been received from Re-
spondent and the General Counsel. On the entire record in
this case and in consideration of the argument and briefs, I
make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
It is, alleged, admitted, and I find that Respondent is a
corporation engaged in the manufacture, sale, and distribu-
tion of cardboard containers and related products at Evans-
ville, Indiana, of which goods and materials valued in excess
of $50,000 are annually shipped directly from States other
than the State of Indiana and to which goods and materials
valued in excess of $50,000 are annually shipped directly
from States other than the State of Indiana. Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Evansville Typographical Union No. 35, hereinafter called
ITIU, is a labor organization within the meaning of Section
2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Among the employee complement at Respondent's Evans-
ville, Indiana, plant are units of employees represented by
ITIU, Local 117 of the Evansville Printing and Pressmen and
Assistants Union, AFL-CIO, hereinafter called Pressmen,
the International Bookbinders Union, hereinafter called the
Bookbinders, and the Lithographers and Photo Engravers
International Union, hereinafter called LPIU. During the
summer of 1972 contract negotiations between Respondent
and the Pressmen broke down and a strike commenced July
24, 1972, and ended July 29. On the day before the strike
began, Respondent consulted with leaders of each of the
unions, except the Pressmen, warning them that a strike was
anticipated and advising them that because of the no-strike
clauses in the contracts the members of the other unions
would be expected to cross the picket lines and work during
the strike.
695
On the morning the strike began the employees gathered
outside Respondent's plant, and apparently none crossed the
picket line; however, before the day was over the Bookbinders
had reached agreement with Respondent that their members
would cross the following morning and resume their jobs, in
return for which no sanctions would be applied by Respond-
ent. The ITU members consulted with the Local president
who advised them that he was seeking advice from the ITU
International Union. His own advice to the employees was
that they should "honor the contract." On the following
Wednesday the union president advised the ITU members
that the International had said "follow the contract" also.
The ITU members as well as the LPIU members honored the
picket line throughout the strike which was concluded on
Friday after 5 days.
The following Monday, Burdge, who was the chapel chair-
man for ITU members in Respondent's employ, was advised
that although Respondent permitted the ITU members to go
back to work, it considered that they had breached the no-
strike clause in their contract and that repercussions would
follow. Shortly thereafter Respondent announced that all
ITU members would be penalized by a 1-week suspension
with the exception of Burdge who, because of his leadership
in the Union and his failure to lead the ITU members across
the picket line, would be penalized by a 2-week suspension.
Two provisions in the contract between ITU and Respond-
ent are relevant to a consideration of the issue herein. The
first, section 12, states as follows:
No employee covered by this contract shall be required
to cross a picket line established because of a strike by,
or a lockout of, any other subordinate union of the Inter-
national Typographical Union, when such strike is au-
thorized by, or such lockout is recognized by, the ITU.
The second, section 13, provides a grievance procedure to
which shall be referred:
. . . all disputes which may arise as to the application
of and construction to be placed upon any provision of
this agreement, or alleged violation thereof, which can-
not be settled otherwise.
It is agreed that the conditions prevailing prior to any
dispute shall be maintained until the Joint Standing
Committee has rendered a decision as provided above
except in discharge cases.
There shall be no strikes or lockouts during the term of
this agreement unless either party refuses to comply with
the grievance procedure as outlined hereinabove.
It is agreed that the procedures for the settlement of any
disputes or grievances arising under this contract are as
defined herein and that the only recourse each party may
have against the other for any damages alleged to be due
for any breach of this contract shall be to the Joint
Standing Committee.
The section concludes with provisions for payment of ex-
penses of arbitration and restrictions on the powers of the
arbitrator. -
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The above provisions have remained unchanged in the con-
tract between these parties for a number of years. In the last
,preceding contract negotiation the Union proposed that sec-
tion.12 be amended to read as follows: "No employee covered
by this contract shall be required to cross a picket line estab-
lished because of a strike by any other Union, when such
strike is authorized." The Respondent refused to amend a
contract in this regard whereupon ITU then proposed picket
line language such as that contained in the LPIU contract
with Respondent which would have permitted the Union to
honor any picket line set up by any union recognized by
Respondent. This too was rejected by Respondent, and ulti-
mately the Union traded off this and another demand for
three language demands of Respondent and the new contract
left the old language undisturbed.
- B. Discussion and Conclusions
Employees have a protected right to respect picket lines of
unions other than their own, i.e., to engage in a sympathy
strike,' but this protected right may be waived by the em-
ployees' union. Any waiver of statutory rights must be clear
and unequivocal.2 Respondent contends that in the instant
case ITU waived the right of its members by sections 12 and
13 of the current collective-bargaining agreement quoted
above. The General Counsel, on the other hand, contends
that the no-strike, no-lockout provision contained in section
13 is expressly inapplicable in the instant case, arguing that
the waiver is only as extensive as the scope of the grievance
and arbitration procedure in which it is contained. The griev-
ance-arbitration procedure in turn extends only to disputes
"which may arise as to the application of and construction to
be placed upon any provision of (the) agreement or alleged
violation thereof which cannot be settled otherwise." The
General Counsel points out that in the instant case the issue
of the sympathy strike is that of the basic strike of the Press-
men, i.e., the Pressmen's contract, and the Pressmen's con-
tract is by no means cognizable under the terms of the ITU
contract.' I agree with the General Counsel. Paragraph 13
is not applicable to the dispute which gave rise to the strike.
Nowhere in the contract does the Union expressly waive the
Gray-Hobart Water Corporation, 210 NLRB 742 (1974), Southern Grey-
hound Lines, Division of Greyhound Lines, Inc 169 NLRB 627 (1968)
2 Mastro Plastics Corp., and French American Reeds Mfg, Co., Inc., v
NL.R.B., 350 U S. 270, 278-279 (1956), Gary-Hobart, supra
3 Although at the hearing Respondent's counsel took the position that the
Pressmen's strike was unlawful in that it sought to require Respondent to
recognize the Pressmen as the collective-bargaining representative of a
theretofore unrepresented group of employees, no evidence of such illegality
was adduced by Respondent and the matter has not been raised further in
Respondent's brief
right to honor another union's picketline. If a waiver is found
it must be implied and this may not be done lightly. Respond-
ent, however, would have us infer from the language of sec-
tion 12, that the parties meant that the no-strike pledge of the
Union would apply to the circumstance of the employees'
being required, to cross the picket lines of other unions. As
Respondent points out in his brief, it seems, clear that the
parties understood that the contractual language of section 12
meant that ITU members were prohibited from honoring any
picket line except that of a subordinate union of the ITU.
Hence, the advice of Local President Clark that members
were to live up to their contract, and the advice of the Inter-
national to the same effect, was understood by the employees
to mean that they should go to work across the picket line.
Applying the familiar maxim mclusio unius est exclusto al-
terius, section 12 can readily'be read to mean that employees
may be required to cross a picket line established by any
union other than the ITU. This argument is in its turn but-
tressed by the action of the Union during the last preceding
contract negotiations in trying to enlarge the reach of section
12 to permit employees to respect any picket line at their
employer's plant, or, if they could not achieve that change,
to enable them to respect any picket line established by a
union representing the Respondent's employees.
The General Counsel contends that under the decision of
the Board in Gary-Hobart, supra, and in Hoffman Beverage
Company, 163 NLRB 98'1(1967), section 12 does not purport
to limit the right of employees to cross picket lines of any
nature, but simply asserts the right of employees to refuse to
cross certain picket lines. However, applying the tests applied
by the Board in Gary-Hobart we are forced to the opposite
conclusion. There the Board found that Respondent's at-
tempt, without success, to broaden that no-strike clause to
cover sympathy strikes was significant evidence that it did-not
believe its no-strike clause as it stood covered sympathy
strikes. Here the Union's attempt to broaden its picket line
clause revealed its belief that the contract as it existed would
not protect such sympathy striking. This in turn is consistent
with the action of the ITU in warning the employees to honor
the contract.4
Under all circumstances herein I conclude that the Charg-
ing Parties strike breached the no-strike clause embodied in
their contract. They accordingly lost the protection of the Act
and the discipline imposed upon them was not violative of the
Act. Accordingly, I recommend that the complaint be dis-
missed
4 I rejected the General Counsel's argument that this should be ignored
because of the latent ambiguity in the advice of the International. There is
no evidence that any employee believed other than that it meant that they
should cross the picket lines and go to work