National Tea Co.

National Labor Relations Board - Board Decisions

Jul 31, 1972

198 N.L.R.B. 614 (N.L.R.B. 1972)

614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Tea Company, Standard Grocery Division
and Lawrence Rey. Hamilton . Case 25-CA-3893
July 31, 1972
DECISION AND ORDER
On April 30, 1971, Trial Examiner George L.
Powell issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel and the
Charging Party filed exceptions and supporting
briefs.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs, and has decided to affirm the Trial Examin-
er's rulings, findings, and conclusions for the reasons
stated below, and to adopt his recommended Order.'
Without reaching the merits of the case, we shall
order that the complaint herein be dismissed in its
entirety because, as found by the Trial Examiner, the
parties had voluntarily submitted the problem to a
neutral tribunal where it was fully litigated; the
proceeding appears to have been fair and regular,
and the decision of the tribunal is not clearly
repugnant to the purposes and policies of the Act.2
In these circumstances, we believe that the desirable
objective of encouraging the voluntary settlement of
labor disputes will best be served by our recognition
of the tribunal's award.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the complaint herein be, and it hereby is,
dismissed in its entirety.
MEMBERS FANNING AND JENKINS, dissenting:
The contract here purported to give the Employer
i The Charging Party and General Counsel have excepted to certain
credibility findings made by the Trial Examiner it is the Board's established
policy not to overrule a Trial Examiner 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
Products, Inc, 91 NLRB 544, enfd 188 F.2d 362 (C A. 3) We have carefully
examined the record and find no basis for reversing his findings
2 Spielberg Manufacturing Company, 112 NLRB 1080 Mastro Plastics
Corp v N L.R B, 350 U S 270, 278-280 (1956) In Mastro, the Supreme
Court held that , even in the case of unfair labor practice strikes, the
question as to whether employees may properly be discharged for violating
a no-strike clause is one which must be answered solely by determining the
meaning and interpretation of the governing collective agreement Contract
interpretation , of course , is a function peculiarly within the expertise of
arbitrators . Thus, contrary to the views of our dissenting colleagues, we find
this type of case to be particularly appropriate for deferral to arbitration
and for the application of our Spielberg principles
3 Our colleagues' reliance on Mastro Plastics Company v N L R B, 350
U S 270 , for the proposition that the validity of discharging those who
strike despite a no-strike clause is solely a contract interpretation question,
is misplaced Though stating that a union may by appropriate and specific
language waive the right of employees to strike against unfair labor
the right to discharge employees who engaged in
"unauthorized strikes," i.e., strikes not authorized by
the specified union body. But some strikes, for
example, strikes over unfair labor practices, may be
protected even though not authorized by a union.
The same may be true of some economic strikes. Yet
under the contract, the Employer can fire the strikers
engaged in such statutorily protected strikes, provid-
ed the Union did not authorize them. Thus on its
face, the contract provision purports to confer on the
Employer the right to violate Section 8(a)(3) of the
Act.
The arbitration award here upheld the validity of
the strikers' discharges. In so doing, it resolved the
only dispute between the Union and Employer:
whether participants in an unauthorized strike lasting
less than 24 hours were, or were not, subject to
discharge. The answer to this issue could not possibly
determine whether the strike was protected, and the
employees had rights, under the statute.3 As it
happened, the award went against the strikers, and
their discharge was sustained because the strike was
not "authorized." Thus, if the strike were to any
extent protected by the Act-a circumstance un-
known at present-the contractual criterion of
nonauthorization of the strike will have superseded
the statute as the measure of the employees'
protection. In short, the contract does permit the
Employer to violate Section 8(a)(3) and (1), the
award does not consider this issue , and the Act is
subverted by the arbitration process and the majori-
ty's deferral to it.4
In addition, in the Wagoner Transportation Compa-
ny case,5 the Board was confronted with a clause in
material respects identical to article VII in this case.6
In that case, at 457, the Board in interpreting this
clause found:
... although unauthorized strikes are outlawed
by the Master Agreement, it is clear from the
practices, the Court held that the usual no-strike clause ("the Union agrees
to refrain from any strike or work stoppage during this agreement") was not
such a waiver. Here the clause was substantially narrower, giving (or, in the
Union 's view , withholding from) the Employer a right to discharge
employees engaged in "unauthorized" strikes, i e., strikes not authorized by
the Union Under Mastro Plastics, the present clause cannot be interpreted
to waive discipline for unfair labor practice strikes-and possibly net for
some economic stokes. Any contention to the contrary would be "nearly
frivolous," as the majority observed in Peerless Pressed Metal Corporation,
198 NLRB No. 5, and for the arbitrator so to interpret the contract would
be repugnant to the Act and contrary to Spielberg standards . The majority's
apparent willingness to let an arbitrator disregard Mastro Plastics is an
additional illustration of the basic unsoundness of its Colyer deferral policy.
4 We would also note that the arbitration process in this case has the
same defects, as a result of which some of the same inadequacies appear to
have entered into the award , as those pointed out in the dissent in Terminal
Transport Company, 185 NLRB No. 96.
5 Wagoner Transportation Company, 177 NLRB 452, enfd 424 F.2d 628
(C.A 6)
8 The only difference between the two clauses is that the words
"Employer" and "employee" are used m one instead of the words
"Company" and "employees" respectively.
198 NLRB No. 62
NATIONAL TEA COMPANY 615
Agreement itself that the parties agreed that the
extreme penalty of discharge would not be
applicable to employees who participate in
unauthorized strikes of less than 24 hours'
duration, as the Agreement gives the Respondent
as an Employer only the right to impose "reason-
able discipline short of discharge" upon such
employees. It is accordingly held that to the
extent that the Agreement prohibited the Respon-
dent from exacting the extreme penalty of
discharge on employee-participants in wildcat
strikes of less than 24 hours' duration, such strikes
are protected activities under the provisions of
Section 7 of the Act which guarantees to
employees the right to engage in "concerted
activities for the purpose of collective bargaining
or other mutual aid or protection."
The court agreed with the Board's interpretation of
the clause.
Thus, to accept blindly the Committee's decision in
these circumstances, where the Board with court
affirmance has previously found that similar lan-
guage did not waive otherwise clearly protected
activity is a patent abdication of the Board's
statutory responsibility. Because nothing can be
more "clearly repugnant" to the Act, for our
colleagues to hold otherwise is to completely emascu-
late the principles of Spielberg Manufacturing Compa-
ny, 112 NLRB 1080, 1082.
As we have pointed out in our dissents beginning
with Collyer and running through a series of other
cases, including particularly National Radio Compa-
ny, Inc., 198 NLRB No. 1, the majority's Collyer
policy of deferring to arbitration results in substitut-
ing the protection of the contract for that of the
statute, and in allowing the parties by contract to cut
down and even eliminate the protection afforded by
the statute. This case provides a clear and patent
demonstration of such voiding of the Act's protec-
tion. The Act seems to us paramount. We cannot
understand the majority's contrary view, much less
follow it , and would determine the issues here on
their merits and in accordance with the Act.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE L. POWELL, Trial Examiner: Upon a charge
filed on August 7, 1970, by Lawrence Rex Hamilton (full
name supplied at the trial), herein called Charging Party or
Hamilton , against National Tea Company , Standard
Grocery Division, herein called the Respondent, the
Regional Director for Region 25 of the National Labor
Relations Board , herein called the Board , issued a
complaint on behalf of the General Counsel of the Board
on October 19, 1970, alleging violations of Section 8(a)(3)
and (1) of the National Labor Relations Act, as amended
(29 U.S .C., Sec . 151 et seq.), herein called the Act. In its
duly filed answer , Respondent , while admitting certain
allegations of the complaint , denied the commission of any
unfair labor practice.
Pursuant to a notice , a trial was held before me in
Indianapolis , Indiana , on January 21 and 22 , 1971, where
the parties were present , were represented by counsel, were
afforded full opportunity to be heard , to examine and
cross-examine witnesses , to present oral argument, and to
file briefs . After an extension of time had been granted,
briefs were filed by Respondent , General Counsel, and
Charging Party, on March 5, 1971.
Upon consideration of the entire record , including the
briefs filed with me , and specifically upon my observation
of the witnesses as they testified before me , ' I find, for the
reasons hereinafter set forth , that the General Counsel has
failed to establish by a preponderance of the evidence that
Respondent violated the Act as enumerated in the
complaint . Accordingly , I will recommend that the
complaint be dismissed in its entirety . I also find that the
matter was resolved in accordance with the collective-
bargaining agreement by a decision following arbitration
in which none of the policies of the Act were violated, and
a fair and regular arbitration proceeding had been held.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE EMPLOYER
Respondent admitted, and I find, that Respondent is an
Illinois corporation maintaining principal offices in Chica-
go, Illinois , with a place of business in Indianapolis,
Indiana , where it is engaged in selling , warehousing, and
distributing meats , produce , groceries , and related prod-
ucts. During the year preceding the issuance of the
complaint, Respondent , in the course and conduct of its
business operations in Indiana, sold and distributed
products , the gross value of which exceeded $500,000.
During the same period of time, Respondent shipped,
transported , and received products valued in excess of
$50,000 at its facilities in Indiana in interstate commerce
directly from States other than the State of Indiana.
II. THE LABOR ORGANIZATION
Chauffeurs , Teamsters , Warehousemen and Helpers
Local Union No. 135 a/w International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of
America, herein called the Union , is admitted to be, and I
so find , a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint and notice of hearing alleged that
Respondent had violated Section 8 (a)(1) and (3) of the
National Labor Relations Act, as amended, in that "on or
about February 10, 1970 , Respondent did suspend and on
or about February 13, 1970 , did discharge [Lawrence] Rex
i Cf Bishop and Malco Inc, 159 NLRB 1159, 1161.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hamilton and Leamon Romans," herein called Romans,
because "said employees joined and assisted the Union,
... engaged in other Union activity and concerted
activities for the purpose of collective bargaining and
mutual aid and protection and because Respondent
believes that they encouraged other employees to engage in
concerted activities and/or because said employees en-
couraged other employees to engage in concerted activities,
to wit, a strike."
A. Background and Union-Respondent Relationships
During the 10-year period preceding this case, Respon-
dent's warehouse employees have been represented for
purposes of collective bargaining by the Union. During
these years, relationships between the Respondent and the
Union were characterized (without contradiction) by John
C. Riordan, director of labor relations, as "good." The
parties have negotiated a series of successive collective-
bargaining agreements . Riordan's credited and uncontrad-
icted testimony is, "to my knowledge, prior to the incident
in question in these proceedings, we have not had a work
stoppage. Our volume of grievances are within the
expected limits. We have not charged the Union with any
unfair labor practices. They have not charged us with any."
Prior to February 10, 1970, Romans and Hamilton were
employed by Respondent as warehouse lift drivers on the
second shift, 4 p.m. to 12 midnight. While both were Local
Union No. 135 members, pursuant to the agreement's
union shop provisions, neither was an officer of, or acting
in any representative capacity for, the International or any
local union.
The events on the second shift, February 9, 1970
During the course of the second shift on February 9,
1970, Respondent determined that some 18 to 19 employ-
ees would be needed for 2 hours of overtime at the end of
the regular shift.
Article IV, section 8 of the Addenda agreement between
the Union and Respondent (G.C. Exh. 3) sets forth the
method of determining which employees would get
overtime as follows:
Overtime work, when required, shall be offered by
seniority and shall be voluntary insofar as is reasonable
and practical. When volunteers for overtime work are
not sufficient to meet the requirements of the business,
a reasonable effort shall be made to assign such work
to least senior employees by classification who shall be
required to work overtime as scheduled. It is expressly
understood that nothing herein contained shall pre-
clude the Employer's right to require a reasonable
degree of overtime when necessary. Employees working
overtime shall not displace another employee from his
regular "bidjob."
Pursuant to the Addenda, and in the practice thereunder,
Bernard Erney, Respondent's second shift receiving fore-
man, began a canvas of the 30 second-shift employees for
overtime volunteers . Before the end of the shift, Erney
asked both Romans and Hamilton to work the 2 hours of
overtime . Both agreed to do so . Sixteen or seventeen other
employees also agreed to work overtime . Those who have
agreed to work overtime have always been "required to
work," according to the credited testimony of Ralph D.
Griner, warehouse transportation superintendent.
At 11:55 p.m., Walter DeHosse , Respondent 's shipping
foreman , sounded the buzzer signalling second shift
employees to "get ready to go home" and those "working
overtime . . . to . . . start their rest period ." As usual,
those scheduled for overtime , including Romans and
Hamilton , went downstairs to the cafeteria for the 10-
minute break between the end of the regular second shift
and the start of overtime.
The events after the break
At 12:05 a.m., DeHosse sounded the buzzer calling the
employees on break back to work. However, none came
upstairs. DeHosse went to the top of the stairs leading to
the cafeteria and called down that "the rest period was
over." Still, no one came up. DeHosse went into the
warehouse momentarily, then "down into the basement." 2
DeHosse further testified that "Hamilton said they got a
20-minute break rather than 10 minutes," that he [De-
Hosse] "said it was 10 minutes and time to go back to
work," that Hamilton replied "we don't get 10 minutes, we
get 20 minutes . . . because the day shift gets 20."
DeHosse answered that the "second shift got 10 minutes,"
and that "Hamilton said, if that's the case, I'm going
home."
Romans' account of the conversation was that "there
was a complaint by three or four [men] that 10 minutes
wasn't enough . . . [and that they] wanted to talk about 20
minutes," that it was his "impression at the time that he
[Hamilton] was saying something to the effect of the 20
minutes," and "there was a general discussion of getting 20
minutes or go home."
Hamilton, however, testified that while "there was some
discussion about . . . [the length of the rest period], I
think," he did not talk to anyone about it, did not
participate in the discussion "to my knowledge," and did
not remember telling anyone he was going home. He said
he "didn't really catch everything [DeHosse] said. . . . But
I do know that he mentioned it was time to go back to
work."
DeHosse concluded the conversation telling the entire
group including Romans and Hamilton "that the rest
period was over and it was time to return to work." He
then went upstairs.
I credit DeHosse and find his testimony to more
accurately relate the events than did the testimony of
Hamilton. I am mindful that Romans' testimony tends to
support that of DeHosse.
2 This is from the credited testimony of DeHosse Romans' account sometime a few minutes after the buzzer rang DeHosse came. to
corroborates DeHosse when he testified that when DeHosse sounded the the top of the steps and hollered for them to come back up." Again, no one
buzzer at 12 05 a in, "no one moved ... usually we waited on overtime moved , so he "came . . down in to the cafeteria and said. . that our 10
until the boss came down and hollered for them to go back And so minutes was up and for us to go back up and go to work."
NATIONAL TEA COMPANY 617
The events upstairs
According to Receiving Foreman Erney's testimony,
DeHosse met Erney at the head of the stairs, and told him
. . Mr. Hamilton said that they were requiring 20
minutes at this break, and that he [DeHosse ] informed
them that it was only a 10-minute break and for them to
return to work."
According to Romans, the men in the cafeteria "all
started getting up to go up. Rex Hamilton was in front and
I stayed back to see what was going to happen, more or
less, and the other four guys . . . I named . . . went on up
and a few other guys, so I followed them on up. They went
up the stairway . . . single file . . . headed towards the
clock."
According to DeHosse, "shortly" after he came up the
stairs "Hamilton came up, followed in line by . . . several
other employees . . . and [Hamilton] said he was going
home."3 Erney testified that he "was standing at the
doorway" at the head of the stairs with DeHosse, and he
spoke to the whole group of employees. He told them ".. .
that they voluntarily signed for overtime and that they
were required to stay." Hamilton stated he "told Mr. Erney
I was going home. I didn't feel like working." Erney's exact
words to the group were "that they were not permitted to
leave." 4
According to DeHosse, when Hamilton "went by and
said he was going home . . . I told him . . . we weren't
releasing him . . . he was scheduled to work overtime and
we needed him for overtime." Both Erney and DeHosse
told the group with Hamilton that they were not allowed to
go home and that they were required to work over.
Nevertheless, Hamilton proceeded to the timeclock, and
was the first to punch out. Some 19 employees were lined
up single file in front of the timeclock.
From the testimony of Romans, Hamilton and Jim
Walker had just clocked out when Chester Stover got to the
clock (apparently he was the third in the line). Before
Stover checked out, he wanted to talk "about this some
more" and asked what were they going to do. Romans told
him, "I was sick and ... was going home." Whereupon
the 17 who had not clocked out started clocking out.
Romans testified that when Erney asked what was the
trouble, the employees "all complained about being sick.
... Some . . . had headaches and backaches and first one
thing and then another." DeHosse testified that when
Romans said he was going home, he, DeHosse, told him he
wasn't released, and DeHosse told the others the same
thing. Romans admitted at the trial that he had lied when
he said he was sick before he clocked out. Neither he nor
Hamilton could recall DeHosse telling them they were not
released, but from all the circumstances, including their
demeanor while testifying, I credit DeHosse. It is far more
likely for him, as management, in trying to hold these
employees to their earlier acceptance of working 2 more
hours, to tell them they were not released. He knew the
trouble began over the employees' desire to have 20
minutes for a break rather than 10 minutes, and suddenly
they were checking out "sick," an obvious pretext.
Fifteen employees walked out. Several remained at work.
The parties stipulated that the walkout was unauthorized
by the Local and International. None of the other night-
shift or day-shift employees of Respondent participated in
the strike. The following afternoon, all 15 strikers,
including Romans and Hamilton, were suspended pending
an investigation. The strike was confined to the second-
shift overtime, February 10, 1970, and ended when the 15
strikers were notified of their suspension. The suspension
was lifted 2 days later on all the employees except
Hamilton and Romans.
History of the 10-minute break
As for the controversy over whether those scheduled for
overtime following the second shift should have a 10- or
20-minute break before starting the overtime, the clear
evidence in the case is that only 10 minutes was permitted.
Romans admitted that as of February 9, 1970, it had been
a 10-minute break for at least 6 months. There was
evidence that it was longer than 6 months, but it is
unnecessary to resolve this. Some 4 to 6 weeks before
February 9, 1970, Respondent and the Union had a
"discussion" about their break period, culminating in
agreement that there would be a 10-minute break at
midnight and a 20-minute break at 2 a.m. if they were to
work longer.
DeHosse credibly testified that the only employees who
ever questioned him on this rest period were Romans and
Hamilton, and he had had "trouble" and discussions with
both men about this subject on three or four occasions
within 5 months before February 9, 1970, repeatedly telling
them the break period was only 10 minutes. The last time
was only about a week before February 9. He told them
that if there was disagreement as to this, there was a
procedure to follow.
Stephen Ritter, assistant warehouse and transportation
superintendent, credibly testified that he also had several
conversations with Hamilton and Romans about this
break, the most recent being a week or so before the
walkout. The two wanted a 20-minute break, and he
explained they were only going to get a 10-minute break.
Neither Romans nor Hamilton disputed the agreement
between the Union and Respondent that the break at the
end of the second shift was for 10 minutes. I find that on
February 9, 1970, the break period between the end of the
second shift and the beginning of overtime was 10 minutes
and that the employees engaged in an unauthorized
walkout in protest thereof.
Responsibility of Hamilton and Romans for the
walkout
The Respondent investigated the work stoppage. De-
Hosse had told Griner on the morning of February 10,
1970, what had happened the night before and that he felt
that Hamilton and Romans were the instigators. According
3 Hamilton acknowledged he was the first up the stairs and that the rest
of the employees followed him
4 According to Erney, Hamilton told him "he was going home" after
Erney had told the group that they were not released . Erney did not agree or
consent to Hamilton's statement
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Griner , Erney told Griner substantially the same thing.
Also employee Garrison told Griner that Hamilton and
Romans "were the instigators ," and finally , employees
James Mullins and Harry Mullins told Griner , at the time
they were reinstated on February 12, 1970 , that they would
never follow Hamilton and Romans again.
According to Gnner 's credited and uncontradicted
testimony , he met with Umon Stewards Cowls, Miller, and
Harl and Union Representative Spurgeon on February 10,
1970, about 10 a.m. and told them the strikers would be
suspended until further notice and that he believed
Hamilton and Romans had been the instigators but he
would further investigate the case . The Union's position
was that the employees other than Hamilton and Romans
had been led astray and were not at fault . Afterwards,
Griner again talked with DeHosse (who maintained his
original position) and talked to all the supervisors who had
anything to do with the matter . All views were the same.
After his investigation , Griner decided to discharge
Hamilton and Romans. He did this on February 13, 1970,
by identical letter to each as follows:
On February 10, 1970, after accepting overtime work,
you left the warehouse before starting such overtime
work, despite specific and repeated instructions by
supervision to remain at work and complete your
assignment.
Moreover, you actively and expressly persuaded fellow
employees to follow your example in leaving the
premises without authorization and contrary to the
specific and repeated instructions of supervision.
In view of your complete disregard of the established
uniform rules and regulations for personal conduct and
your active leadership in encouraging other employees
to be similarly insubordinate, you are herewith advised
of your dismissal from Standard Grocery.
The grievance
Hamilton and Romans each filed a grievance on
February 16, 1970 , which was processed in accordance
with the grievance procedure set out in the collective-
bargaining agreement . Beginning with Step Two, the
grievants were represented by Spurgeon , business agent of
the Union . When the grievances were not satisfactorily
adjusted at Step Two they were referred to the Joint
National Committee in accordance with Step Three.
Spurgeon telephoned Riordan , Respondent's director of
labor relations , that his position before the Joint National
Committee was that Respondent 's actions were contrary to
article VII of their agreement . The second paragraph of
article VII-Unauthorized Activity , is all that is involved,
and it is as follows:
It is further agreed that in all cases of an unauthorized
strike , slow-down , walkout , 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 such 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 Employer 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 employee 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
stoppage continues , however, the Employer shall have
the sole and complete right to immediately discharge
any employee participating in any unauthorized strike,
slow-down, walkout , or any other cessation of work,
and such employees shall not be entitled to or have any
recourse to any other provisions of this Agreement.
The Union 's position , in effect , was that Respondent was
precluded from discharging any employee engaging in an
unauthorized strike that lasted less than 24 hours , like the
one in issue . The Respondent , on the other hand , took the
position that the contract did not preclude such a discharge,
but only that such a discharge was subject to the grievance
procedure , whereas a discharge for engaging in an
unauthorized strike longer than 24 hours was not even
subject to a grievance.
The Joint National Committee held a hearing on the
grievances in New Orleans in March 1970 . Present were
Committee Chairman Charles D . Winters and Riordan.
Winters also was the Teamsters Joint National Committee
representative and the president of Teamsters Local 270 in
whose offices the meeting was held . While normally
individual grievants do not appear before the Joint
National Committee (having their grievances presented
instead by the local union representative ), Hamilton and
Romans appeared in person and were represented by
Spurgeon . Daniel Costello , who works in Riordan's
department, also attended . While the Agreement calls for a
Joint National Committee of four members , the Commit-
tee "routinely" convenes with less than four and there was
no objection to the two-member panel.
Spurgeon presented the case for Hamilton and Romans.
He made the first statement on the case . He told them he
had lost the affidavits which he had supporting his case
and apologized for the inconvenience. He believed they
were lost on the airplane and when found would be
submitted to the arbiters . They subsequently were found
and submitted . He asked to proceed with the hearing
without the affidavits, and, without objection, he did so.
On behalf of the grievants , he argued his theory , as noted
before, that Respondent violated article VII of the
Agreement by discharging Romans and Hamilton since the
lockout lasted less than 24 hours.
Both Hamilton and Romans made statements on their
own behalf supporting their grievances ; Costello , Respon-
dent's representative , made his statement which was that
these two men had left work "without authorization" and
"encouraged other people to do likewise." He told of what
the supervisors had said of the incident. Riordan testified
that in the past the Joint National Committee has "on both
sides" reached decisions without testimony from individu-
als from the location , but it is "generally not the case" for
grievants to appear and testify.
Riordan credibly testified that Costello related that these
two employees "had been instructed by supervision to
return to work and complete the overtime assignment,
NATIONAL TEA COMPANY 619
which they refused to do. That they punched out and left
the premises contrary to the instructions of supervision."
At the conclusion of the hearing, Winters asked "all
participants if they (had) anything to add." Nothing was
added.
After a review of the testimony and the supporting
documents, Winters sent a telegram to Spurgeon and to
Riordan on April 20, 1970, as follows:
Be advised that after hearing a review of the union's
presentation of the testimony and affidavits presented,
the discharge of Rex Hamilton and Lemon Romans is
upheld.
Riordan and Winters were familiar with article VII of
the Agreement as they had participated in its negotiation in
the 1964-67 Agreement. It was renewed in 1967 without
further negotiation or change.
Case 25-CB-1020
Hamilton charged the Union, on August 7, 1970, with
failure to adequately represent him and Romans "in the
handling and processing of their grievances" in Case
25-CB-1020. The Regional Director for Region 25 notified
Hamilton , by letter dated October 26, 1970, that he was
refusing to issue a complaint on the ground of insufficient
evidence of a violation of the Act.
Independent allegations of 8(a)(1)
There is no allegation of an independent violation of
Section 8(a)(1) of the Act in the complaint, nor any
evidence of one.
B. Discussion and Conclusions
The General Counsel agrees , in his brief , that "Essential-
ly, there is no factual dispute in this case ." He then
summarizes the facts set forth above and concludes "There
is no question that Hamilton and Romans were discharged
because of Respondent's belief that they struck and
instigated and encouraged other employees to engage in
the strike ." The Charging Party substantially agrees with
this position in his brief . Inasmuch as neither the General
Counsel nor the Charging Party admits that Hamilton and
Romans in fact were the instigators in the unauthorized
strike , and the Respondent was satisfied that they were the
instigators and fired them because of their actions, I
believe it to be important to resolve this fact . From the
credible evidence as set forth above, I find that Hamilton
and Romans instigated the unauthorized strike which took
place in the morning of February 10, 1970. I also find that
each was fired , for the reasons set forth in the letter of
February 13, 1970, above:
In view of your complete disregard of the established
uniform rules and regulations of personal conduct and
your active leadership in encouraging other employees
to be similarly insubordinate ... .
Any unauthorized strike action by employees contrary to
the contract does not fall within the protection of Section 7
of the Act because of the operation of Section 9(a). (See
N.L.R.B. v. Draper Corporation, 145 F.2d 199 (C.A. 4);
Harnischfeger Corporation v. N.L.R. B., 207 F .2d 575 (C.A.
7); Plasti -Line, Inc., v . N.L.R.B., 278 F .2d 482 (C.A. 6);
N.L.R.B . v. Tanner Motor Livery Lid, 419 F.2d 216 (C.A.
9); and N. L.R.B. v . Shop Rite Foods, Inc., 430 F.2d 786
(C.A. 5).)
Under the teaching of the above cases , the instigation of
the unauthorized strike by Hamilton and Romans was
unprotected activity , and they could be discharged therefor
without incurring a violation of the Act.
The right to discharge an employee who engages in an
unauthorized strike is well-settled law as indeed it must be,
since the whole intent and purpose of the Act is to foster
collective bargaining . Once there is established an exclu-
sive collective-bargaining agent, the forces of the law are
committed to surround him and protect his exclusivity by
denying protection of the Act to employees who engage in
minority actions inimical to the rights of the exclusive
bargaining agent.
Since it will be necessary to refer to section VII and
section VIII of the collective -bargaining contract from
time to time in this section of this decision , they are
reproduced in full as a footnote.5
C. Respondent's Position
Respondent argues in its brief that under the contract it
could discharge an employee for engaging in an unauthor-
ized strike regardless of the length of time of the strike. All
that the length of time of the strike relates to in the
contract is to whether the discharge could be grieved
through the grievance procedure; and this being possible
only for strikes of less than 24 hours. According to his
theory under section I of article VIII of the agreement,
supra, the exclusive bargaining agent of the strikes
explicitly contracted "that there shall be no strikes . . . by
the Union during the term of this Agreement." Article VII
confirms that any "unauthorized strike" is a "violation of
this Agreement." Notwithstanding expressly forbidden
unauthorized strikes, the General Counsel argues that a
discharge for such activity converts the activity from
unprotected status to protected status. Respondent main-
tains that this no-strike clause waives the employee right to
strike under Section 7 of the Act, and that the question of
whether activities are protected is quite different from the
question of whether the penalty given for engaging in them
exceeds that agreed upon by the parties. A penalty
exceeding a privately proscribed one cannot amend the
absolute no-strike agreement, and unprotected activity
cannot be converted to protected activity.
As to the language of article VII of the contract, it does
not prohibit discharge for participating in a strike of less
than 24 hours when all the words are read in context.
Rather, the import of the Article is that although an
Employer may discipline or discharge such strikers, a
discharge can be challenged through the grievance proce-
dure whereas any discipline short of discharge is unchal-
lengable. This finds support in the phrase that even a
discharge of a striker of more than 24 hours cannot be
challenged in a grievance. In other words, the only
discharge of a striker that is grievable is the discharge of
5 See appendix
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one who had not struck for more than 24 hours. The
obvious reference to "recourse to any other provision of
this Agreement" relates to the "sole and complete right to
reasonable discipline short of discharge," and Respondent
is not prohibited from making the discharge. The limita-
tion expressed in the phrase is not that the Respondent
cannot discharge, but that his right to do so is not "sole
and complete," i.e., not his alone without review.
General Counsel would impute to article VII the intent
that the parties said, "The Respondent shall not discharge
an employee who participates for less than 24 hours in a
prohibited work stoppage." Had the parties intended that
result they could have expressly so provided. They knew
how to exclude certain acts from being good cause for
discharge because they did this in article VIII, sections 2
and 3. The interpretation of the General Counsel amounts
to a substantial curtailment or a partial revocation of
Respondent's otherwise unqualified, uncontradicted, ex-
press right to discharge under article X1116 and the
doctrine of Mastro Plastics Corporation v. N.L.R.B., 350
U.S. 270, 280.
Another consideration makes it entirely clear that the
General Counsel's "intent" of the parties cannot be
imputed to article VII. The provisions of the Grievance
Procedure, article V, section 1, step 4, make it clear that
article VII does not create a limitation on the Employer's
otherwise unqualified, unconditioned right to discharge for
participation in a strike of less than 24 hours in violation of
the no-strike commitment. Article V, section 1, step 4
provides in relevant part:
If the Joint National Committee decides the griev-
ance referred to it by a majority agreement of the
Committee, the decision shall be final and binding on
all parties. In the event the Joint National Committee
cannot reach a majority agreement, the dispute shall be
submitted to arbitration, subject, however, to. the
following:
Disputes concerning . . . discharge, except
discharge . . . under the terms of Article VII,
shall be submitted to arbitration by a majority
agreement of the . . . Committee. In the event
the . . . Committee cannot reach a majority
agreement on disputes involving . . . discharge,
except discharge . . . under . . . Article VII, then
either party shall be permitted all legal or lawful
economic recourse ... .
Article VII indisputably bars recourse to the grievance
procedure by an employee discharged for participation in a
strike of more than 24 hours: "[I ]f such stoppage continues
(beyond 24 hours) . . . , the Employer shall have the sole
and complete right to discharge any employee participating
... and such employee shall not be entitled to or have any
recourse to any other provisions of this Agreement. Yet
6 Article XIII-Management Rights
The management of the business and the direction of the working
forces, including the right to plan , direct and control operations, hire,
suspend or discharge for proper cause, transfer or relieve employees
from duty because of lack of work or for other legitimate reasons, the
right to study or introduce new or improved production methods or
facilities , are vested in the Employer provided , however, that this right
shall be exercised with due regard for the rights of the employees and
provided further, that it will not be used for the purpose of
Article V, Section 1, Step 4 provides that "[d]isputes
concerning . . . discharge, except discharge . . . under the
terms of Article VII, shall be submitted to arbitration by a
majority agreement of the Joint National Committee."
This is an unmistakable recognition that grievances
respecting discharge under article VII may be processed
through the grievance procedure to the Committee,
although not beyond. Since article VII clearly and
unequivocally bars grievance procedure review of dis-
charge for strike participation exceeding 24 hours, the
language of step 4 perforce refers to discharge for strike
participation of less than 24 hours. And, it is an express
acknowledgment that Respondent may discharge for
strikes of such duration "under the terms of Article VII."
This provision cannot merely be a restatement of the
article VII ban on grievance procedure review of discharge
for strike participation exceeding 24 hours. For article VII
bars "recourse to any other provisions of this Agreem-
ent"-the entire Grievance Procedure, not merely arbitra-
tion, as the step 4 language provides.
The clear meaning of these article V provisions cannot
be squared with the General Counsel's interpretation of
article VII. In contrast, the article V provisions harmonize
with the interpretation of article VII suggested by
Respondent. Like article VII, they contemplate that
Respondent may discharge for the offense, subject to
grievance procedure review.
Finally, this intent to permit discharges of strikers of less
than 24 hours subject to grievance procedures is evidenced
by the decision of the negotiators of the clause denying the
Hamilton and Romans grievances and rejecting the
contention advanced by the General Counsel.
The protected status of the strike under the Agreement
turns upon the meaning of article VII, that is, whether
Respondent and the Union contracted that strikers should
be immune from discharge for a no-strike engagement
violation of less than 24 hours. This, like all matters of
contract interpretation, is a question of the intent of the
parties to the Agreement. On this, there can be no surer
guide than expressions of intent by the negotiators
themselves during their negotiations of the Agreement or
in their subsequent interpretation of it.
The intent of the negotiators in their subsequent
interpretation of the contract is evidenced in the decision
of two of them denying the Romans and Hamilton
grievances and rejecting the contention upon which they
turned, here urged by the General Counsel. The Joint
National Comnuttee panel which heard and decided
Romans' and Hamilton's grievances was composed of
Riordan and Winters who had represented Respondent
and the Union, respectively, in the negotiations of article
VII in 1964.7 The Union's position at the local level
through the Joint National Committee hearing was that the
discrimination against any employee, or for the purpose of invalidating
any contract provisions.
r The General Counsel contended that the Joint National Committee's
decision is not entitled to recognition , presumably for any purpose, since the
panel which decided the grievances was composed of only two members
and thus allegedly improperly constituted . Article III, section I of the
Agreement provides that the Joint National Committee shall consist of "not
less than two" representatives from each the Employer and the Union, but
the Agreement does not require that all committee members sit on or hear
(Continued)
NATIONAL TEA COMPANY 621
discharges violated article VII since the strike lasted less
than 24 hours. The case was argued by the Union's
business agent to the Committee on this theory. Riordan
and Winters were both aware that this issue was before
them for decision. They had peculiar and unquestionable
knowledge of the intent of Respondent and the Union
during their negotiation of the clause, for they had
negotiated it. And they denied the grievances. In doing so,
they necessarily decided that Respondent had not violated
article VII. Their decision comported with the apparent
intent of the language itself, supported by the evident
meaning of the provisions of article V. It cannot be
questioned or disputed that the Committee members were
the primary and best source of peculiar knowledge of the
intent of the very clause they negotiated and that they
rejected the express contention that the discharges violated
article VII.
The intent of article VII manifested in their decision
cements the conclusion, based upon the terms of article
VII and buttressed by the clear meaning of article V, that
article VII did not prohibit the discharge of Romans and
Hamilton for their activities.
It startles the conscience to say that a clause relating to
the filing of grievances in a collective-bargaining agree-
ment, in and of itself, is of such importance in the contract
that it reinstates the protection of the Act to employees
who are outlaws tearing at the fabric of the Act itself.
I conclude and find that the argument of Respondent
has merit and that article VII of the agreement permitted
discharges of strikers of less than 24 hours' duration
subject only to grievance procedures. Therefore I conclude
that the discharges of Hamilton and Romans were for
cause , and no violation of Section 8(a)(3) of the Act has
been established by the General Counsel. Accordingly, I
will recommend the complaint be dismissed in its entirety.8
D. The Arbitration
Although it is unnecessary to reach this point in view of
the above decision that a violation of the Act was not
established by a preponderance of the evidence, it does
seem that the case can be dismissed also because the
parties had voluntarily submitted the problem to a neutral
tribunal where it was fully litigated, the proceedings were
fair and regular, and the decision was not repugnant to the
purposes and policies of the Act. Spielberg Manufacturing
Company, 112 NLRB 1083. The parties to collective-
bargaining agreements must be charged with responsibility,
and the Board need not reconsider cases merely because
one of the parties does not like the decision of the
arbitrators .9
IV. THE REMEDY
Having found that the General Counsel has not
sustained the burden of proof that Hamilton and Romans
were discharged in order to discourage union activity but
rather that they were discharged for cause, I shall
recommend that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2) of the Act and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The General Counsel has not established by a
preponderance of the evidence that Respondent has
violated the Act as set out in the complaint.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER
The complaint is dismissed in its entirety.
all grievances referred to it under article V, section I, step 4 Accordingly,
the General Counsel's contention is without merit
8 General Counsel relies on Wagoner Transportation Co., 177 NLRB No
22, enfd 424 F 2d 628 (C.A. 6, 1970), but this case is distinguishable.
The Wagoner bargaining agreement counterpart to article VII was
substantively the same. However , Wagoner discharged the two discnmina-
tees, to the extent relevant here , for participation in work stoppage allegedly
exceeding 24 hours, and accordingly did not assert or argue its right to
discharge for strike participation of less than 24 hours Judge Bush found
that the strike did not last 24 hours and, lacking the benefit of adversary
argument and without analysis or discussion , concluded "that the parties
agreed that the extreme penalty of discharge would not be applicable to
employees who participate in unauthorized stokes of less than 24 hours
No basis for this "agreed" upon conclusion appears in the decision.
The qualifying language was not set out in his decision nor was there an
analysis made of the language "without recourse etc " discussed above
Also two critical elements in the instant case are not found in Wagoner
Bush 's decision makes no reference to language like article V's recognition
that Respondent may discharge for strikes of less than 24 hours ' duration
"under the terms of Article VII" or to any evidence , like that here, of the
unmistakable intent of the negotiators of the clause that it did not prohibit
discharge for such unprotected activity
9 At the trial, the General Counsel attempted to establish that Hamilton
and Romans did not receive what he considered to be a fair trial before the
Joint National Committee in that, e.g, no opportunity was afforded them to
confront and cross -examine witnesses against them . However, even
assuming this to be true, there is no prejudice shown Hamilton and Romans
as the General Counsel and Charging Party both admit the facts and hence
cross-examination would be unnecessary . The evidence concerning the case
before the Joint National Committee is that all parties were given full
opportunity to present their case Evidence as to the intent of the parties to
the interpretation of section VII of the contract was unnecessary as the
members had knowledge of this already
APPENDIX
Article VII-Unauthorized Activity
It is further mutually agreed that the Local Union will,
within two (2) weeks of the date of the signing of this
Agreement serve upon the Employer a written notice,
which notice will list the Union's authorized representa-
tives who will deal with the Employer, make commitments
for the Union generally, and in particular have the sole
authority to act for the Union and the Union shall not be
liable for any activities unless so authorized.
It is further agreed that in all cases an unauthorized
strike, slowdown, walkout, 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 such 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 Employer during the first twenty-four (24)
hour period of such unauthorized work stoppage shall have
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the sole and complete right of reasonable discipline short
of discharge, and such employee 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 stoppage continues, however,
the Employer shall have the sole and complete right to
immediately discharge any employee participating in any
unauthorized strike, slowdown, walkout, or any other
cessation of work, and such employees shall not be entitled
to or have any recourse to any other provisions of this
Agreement.
It is further agreed and understood that the National
Warehouse Division of the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, shall not be liable for any strike, breach or
default in violation of this Agreement unless the Act is
expressly authorized by its Executive Board. The Executive
Board shall notify the Company in writing of any such
action they have authorized.
Article VIII-Protection of Rights 30
Section 1: No Strike, No Lockout
To the extent that the Union is not otherwise entitled to
exercise its right to strike under the provisions of this
Contract, the Union agrees that there shall be no strikes or
other interferences with or interruption of the normal
operation of the Company' s business by the Union during
the term of this Agreement. The Company agrees that
there shall be no lockout.
Section 2 : Picket Line
It shall not be a violation of this Agreement, and shall
not be cause for discharge or disciplinary action, in the
event an employee (a) refuses to enter upon any property
of his Employer involved in a lawful primary labor dispute
or refuses to go through or work behind any lawful
primary picket lines at his Employer's places of business;
including picket lines of unions parties to this Agreement;
or (b) refuses to go through or work behind any picket line,
including picket lines of Unions parties to this Agreement,
at the places of business of any other Employer where the
employees of such Employer are engaged in a strike
ratified or approved by the Union of such employees
whom such Employer is legally required to recognize.
Section 3: Struck Goods
It shall not be a violation of this Agreement and it shall
not be cause for discharge or disciplinary action if any
employee refuses to perform any service which his
Employer performs by arrangement with an Employer or
person whose employees are on strike, and which service,
but for such strike, would be performed by the employees
of the Employer or persons on strike.
Section 4: Grievances
Within five (5) working days of filing of grievance
claiming violation of this Article, the parties to this
Agreement shall proceed to the final step (Article V, Step 4
of Section 1) of the grievance procedure, without taking
any intermediate steps, any other provisions of this
Agreement to the contrary notwithstanding.