Pacemaker Yacht, Co.

National Labor Relations Board - Board Decisions

Dec 18, 1980

253 N.L.R.B. 828 (N.L.R.B. 1980)

DEFCISIONS OF NATIONAL LABOR RELATIONS BOARD
Pacemaker Yacht, Co., a Division of Mission
Marine, Inc. and Teamsters Union 158, affili-
ated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America. Cases 4-CA-9580 and 4-CA-9713
December 18, 1980
DECISION AND ORDER
BY CHIAIRMAN FANNING AND MFMBERS
JENKINS AND PNEI1L.O
On February 11, 1980, Administrative Law
Judge Joel A. Harmatz issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief,
and the Respondent filed cross-exceptions with a
supporting brief, and a brief in support of the Ad-
ministrative Law Judge's Decision.
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
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
We disagree with the Administrative l.aw
Judge's conclusion that the Respondent acted law-
fully in discharging, pursuant to a broad no-strike
clause in its collective-bargaining agreement with
the Union, some 126 employees who engaged in a
work stoppage to protest the failure of the Union's
health and welfare fund to fulfill its obligations
under the contractual medical insurance program.'
On the contrary, we find that the no-strike
pledge relied on by the Respondent did not consti-
tute a clear and unequivocal wvaiver of the employ-
ees' protected right to strike against the actions of
third parties which affect the terms and conditions
of employment. Accordingly, we find that the Re-
spondent violated Section 8(a)(l) of the Act by ter-
minating the 126 striking employees, and thereafter
by failing to reinstate 41 of them.
I Although the Rcspondent grees ith Ihe i decisiont of the Admuili, r;l-
t,e I au Judge onl the merits. it contends ill its brief, 1to the Adilllnitra
tive I.[la Judge and the Board that, Iiil Ziy cv:ell. this c;ts. ii, ne i
which the IHoard should defer to the arbitralion aard lirnitlilril o he
criteria enunciated ill Spielberg AttlnuJacturing (compunv. 112 NI.RI; I 11X
(1955s \e, howecer, find that the Admilistralive I.la Judgc - pl\ll
rcfu',ed to defer to tile arhbitration aard Ihe ,u irk ttoppage ill qt'lcstlill
which w'as the suhlect if Iihc rbitr;llionl here, ,.as a prolerst ticl sqlAtiltre-
ly at the Unllion and thus it i highly likely that here s, a1 di'ecli ' le
interests between the Ullioll a11d the terminated ernployec diring the r-
hitral proceedings It is well established that defrrl is rtt ',arliantl,
',hire the ilterests of the tliiin arc ni)t it ubh',:itilial Litili.ll? '&lli
thie of the employee-grievlatits N.tiona Radio (omnp i, II , 19 8
NI. Ri 527. 532 (1072); Jo-JiA Mlnagenen (oepr., 225 NIRB I 1t33 (1 9t,)
253 NLRB No. 95
This case involves employees represented by the
Union at the Respondent's plants in Egg Harbor
and Lower Bank, New Jersey. The parties' collec-
tive-bargaining agreement in effect at the time of
the events in question provided for an employee
health and welfare benefit program under which
the Respondent was required to pay 40 cents per
hour to the Teamsters Health and Welfare Fund of
Philadelphia and Vicinity-Local 158, herein called
the Fund, a joint employer-union venture. The
Fund, in turn, retained an independent insurance
carrier to underwrite the health and welfare pro-
gram. The Respondent had no contractual obliga-
tion with respect to benefit payment, nor was it
obliged to guarantee that the Fund fulfilled its
commitments to the insurance carrier.
In early 1978, the Fund ceased paying premiums
to the insurance carrier, whereupon the carrier
stopped honoring medical benefit claims submitted
by and on behalf of covered employees of the Re-
spondent. The Respondent, however, continued at
all times material herein to comply with its con-
tractual duty to make contributions to the Fund.
As medical creditors began to press some of the
Respondent's employees for payment of bills not
paid by the insurance carrier, the employees grew
increasingly dissatisfied with the Fund's failure to
make the necessary premiunm payments. Thus, after
work on June 19), 19)78, 2 a large group of employ-
ees assembled on the parking lot of the Lower
Bank facility to protest the Fund's inaction on the
outstanding bills. The protest resumed on June 20,
when, at the 8 am. scheduled starting time for
work, only a few employees entered the plant,
while approximately 200 employees remained on
the parking lot. Following urging by officials of
the Respondent and union representatives to report
for work, about three-fourths of the employees re-
ported to their jobs before 9 a.m.
Those remaining employees who refused to enter
the plant soon moved their demonstration to the
Union's headquarters in nearby McKee City, New
Jersey, stopping on the way at the Respondent's
Egg Harbor plant to urge employees there to leave
their jobs. The work stoppages at Lower Bank and
Egg Harbor expanded after the lunch break that
day and, when only a handful of employees re-
turned to work in the afternoon, the Respondent
closed both plants. For the balance of June 20, the
president, the business agent, and various stewards
of the Union repeatedly advised the striking work-
ers that their walkout was in violation of the col-
lective-bargaining agreement, and the union offi-
lle',' olherteise irldicled all date, reler Ito 1978
X28
PACEMAKER YACHT CO.
cers unsuccessfully appealed to the employees to
return to work.
During the afternoon of June 20, the Respondent
mailed a notice concerning the work stoppage to
all of its employees and, on the following morning,
June 21, foremen and other officials of the Re-
spondent distributed the notice to employees out-
side both plants. The notice stated that on June 20
a majority of bargaining unit employees violated
article X of the collective-bargaining agreement,
the no-strike provision, by staying out or walking
out of the two plants and by picketing and turning
away delivery trucks. The notice then declared
that: "Each employee is hereby notified to report
to work no later than the start of his next regularly
scheduled shift. Anyone who fails to do so will be
considered to have quit his job and the Company
will hire permanent replacements."
On the morning of June 21, about half of the 250
employees at the Lower Bank facility failed to
report for work, and more than half of the 38 Egg
Harbor plant employees also stayed out. Around
noon on that day, the Union's secretary-treasurer
(who was also a trustee of the Fund) explained the
nature of the Fund's problems regarding the insur-
ance carrier to Lower Bank employees, and re-
quested that they return to work. They, however,
refused. Later that same day, the Union's secretary-
treasurer learned that the obstacle to payment of
employee medical claims had been removed, and
that, in the interim, the Fund would pay the out-
standing claims from its general funds. He then in-
formed employees both inside and outside the plant
of these developments.
On Thursday, June 22, the Respondent notified
the Union that the 126 employees who failed to
report to work on the previous morning would not
be reinstated, but only would be considered for
employment as new applicants. The Union urged
their reinstatement and, upon the Respondent's re-
fusal, submitted a grievance on behalf of the em-
ployees who had struck. The grievance was proc-
essed to arbitration. Throughout that proceeding,
the Respondent maintained that the discharge of
the 126 employees was justified by article X of the
collective-bargaining agreement which. in material
part, provides as follows:
No Strikes or Lockout
10.1 So long as this Agreement is in effect, the
Company agrees that there shall be no lock-
outs and the Union agrees that there will be
no strikes, picketing, slow downs, deliberate
curtailment of production, work stoppages of
any kind or other interruption of the Compa-
ny's operations. In the event one or more em-
ployees fail to abide by the provisions of this
Article, the Company retains full right to take
any disciplinary action it deems necessary, in-
cluding discharge.
The Union's position before the arbitrator was
that, while it did not condone the employees' ac-
tions, the discharge penalty was too severe in light
of the Respondent's past practice regarding unau-
thorized work stoppages and the peculiar circum-
stances of this case.
On July 28, the arbitrator issued his award,
which held that the strikers had not voluntarily
quit their jobs, and that they properly were termi-
nated for violating article X of the contract, the
no-strike clause. Nonetheless, the award provided
for preferential recall of the striking employees in
accordance with, and without prejudice to, their
seniority. The award, however, permitted the Re-
spondent to deny recall to any employee whom it,
in a subsequent grievance procedure, could identify
as instigators of the work stoppage.
Pursuant to this award, between August though
October, the Respondent rehired approximately 85
of the 126 employees initially discharged. Of the 41
not reinstated, 15 had not reapplied for employ-
ment, and 26 were alleged by the Respondent to be
instigators of the strike, and therefore not entitled
to reinstatement under the terms of the arbitration
award. 3
The Board and the courts have, on numerous oc-
casions, reiterated the longstanding principle that a
waiver of the basic statutory right to strike over a
particular subject matter will not be readily in-
ferred merely from a broad, general no-strike
clause in a collective-bagaining agreement, but that
such a waiver must be shown to be clear and un-
mistakable. 4 The intent to effect a waiver of the
right to strike may be found in the express lan-
guage of the no-strike provision, or by examining
the bargaining history of the provision, or any
other relevant conduct of the parties. In the ab-
sence of explicit waiver language in the contract,
the Board requires probative extrinsic evidence
that the parties intended a waiver. As the Board
A further arbitration proceeding as held with respect o the Re-
spondent's claim that 2 of the strikers could be denited recall because
Ihes ,. re instigators A May I, 197Q. arhitrator's award conclided that.
of the 2 employees at issue, 6 were entitled to recall and 20 were not
he Respondent apparently has complied uith all terms of xth arhitra-
tlon awards pertinent to this case.
Internautional Union of Operating Enginerr, Il.cal .'non 18. 4FI-('IO
(Dauvi-MrKee, Inc.), 23 NRB h,52 (197) Suburhban lransit Corp, 218
NLRB 1228 (1975): Gary ohbart UWater (orporatron, 210 NI R 742
11974), nfd 511 F2d 284 7th Cr 1975). cert denied 423 US. 25:
Dela.are (Coca-Cola Bltting Company. Inc General Ijamitr lo.-al
Unon t26. 624 F2d 182 (3d (Or 19801) \I. R C K. Smith i1 (C,,
Inc.. 54 F2d Ih2 (st Cir 19771 Ilh. li,skcn Roller Bearin (
\ .RB. 325 2d 746 6h (htl ir lG3)
829
DECISIONS OF NATIONAL LABOR RELATIONS BO)ARD
held in International Union of Operating Engineers,
Local Union 18, AFL-CIO (Davis-Mckee, Inc.), 238
NLRB 652, to effect a waiver the parties must
have discussed the question and such discussion
must amount to "unequivocal bargaining history
evidencing an intent to waive the right."
In this case, the Respondent urges and the Ad-
ministrative Law Judge determined that the strike
in question, related as it was to a third party's fail-
ure to maintain commitments to an insurance carri-
er, was so beyond the contemplation of the Re-
spondent and the Union that the Board's conven-
tional waiver test was inapplicable. 5 In accord with
the Respondent's position, however, the Adminis-
trative Law Judge reasoned that, because the par-
ties reasonably could not have anticipated a strike
over the Fund's failure to make the necessary in-
surance premium payments, the Respondent should
not be held to the strict requirement of proving
that there had been an explicit waiver of the right
to strike over terms and conditions of employment
under the control of a third party.
We find that the Administrative Law Judge has
fundamentally misconstrued the Board's waiver test
regarding the right to strike. The absence of evi-
dence that the parties either considered or dis-
cussed whether the no-strike clause would cover
the situation which arose here indicates that no
clear and unmistakable waiver of the right to strike
over the Fund's inaction occurred. The Adminis-
trative Law Judge, in agreement with Respondent's
position, asserted that he failed "to see how there
could be a 'conscious yielding' during negotiations
with respect to a precise dispute which was beyond
the realm of reasonable anticipation." This observa-
tion only lends support to our conclusion that there
was no waiver of the right to strike over the
matter involved in this case. It stands to reason
that the Union could not have made a clear and
unmistakable waiver of the employees' right to
strike to put pressure on the Fund since the parties
never foresaw the possibility of such a situation.
The mere fact that the parties may not be in a posi-
tion to foresee that the situation may arise is cer-
5 As mentioned above, at the time of the strike and at the subsequent
arbitration proceedings, union officers stated that the strike was in viola-
tion of the no-strike provision The Respondent contends that these state-
ments constitute extrinsic evidence which establishes the intent of' the
parties he Administrative Law Judge found that, while these statements
are entitled to some weight, standing alone they are not sufficientli "un-
equivocal" to evince a waiver We find that little or no weight should be
given to these statements here, since the strike resulted from dissatisfac-
tion and anger on the part of the Respondent's employees toward the
Union's Fund In view of the essentially conflicting interests of the Union
and the employees regarding the Fund. the Union cannot waive the enm-
ployees' right to strike over this issue by ad hoe statements of the pur-
ported intent of the collective- bargaining agreement, See, for example
Keller-Crevceni Company. 217 NLRB 685, 9(0 (1975); Kellogg Company.
189 NLRB 948 (1971)
tainly no reason to find, as the Administrative Law
Judge seems to be doing, that if they had been able
to envision the type of strike involved herein they
would have included it as a situation as to which
the right to strike is waived.
In support of its contention that article X is
broad enough to encompass even such unforesee-
able occurrences as the June 21 walkout, the Re-
spondent points to the other no-strike pledge in the
collective-bargaining agreement, which is con-
tained in the grievance and arbitration provision,
article IX. That article defines the breadth of a po-
tential grievance to include differences regarding
the interpretation or application of the contract,
and states that there should be no work stoppages
associated with grievances. 6 Thus, the Respondent
argues, the contract contains a blanket no-strike
pledge in article X, and a separate, independent,
and limited pledge when the underlying dispute is
otherwise grievable under article IX.
While we agree that the no-strike clause em-
bodied in article X is more comprehensive in scope
than that in article IX, and was not given as a quid
pro quo for the grievance and arbitration proce-
dure, we are not persuaded that article X applies to
the walkout in question here. As noted above,
there is no indication that the parties intended arti-
cle X to cover a situation in which employees
sought to put pressure on the Respondent and the
Union to remedy a problem created by a third
party. 7 In the absence of probative extrinsic evi-
dence of the parties' intent, we decline to find that
article X constituted a waiver of the employees'
right to strike over the Fund's inaction.
Both the Respondent and the Administrative
Law Judge attempt to distinguish this case on the
ground that the decisions in which broad no-strike
clauses, without more, have been found insufficient
to establish waiver of the right to strike have in-
volved sympathy strikers. In our view, the eviden-
tiary standards set forth in those sympathy strike
cases are equally applicable to the walkout in ques-
tion here. In fact, in many respects, the situation
before us now is a far more compelling case than
that presented in the sympathy strike context for
O ()f course. here. since the Respondent was mplying with the col-
lectise-hargaining agreelielnt, there is no cia onttion the dispite ould
have been resolved under the contractual grievance and arbitratiin
clauses
We find the istant case to be distinlguishahle in several iniportant
ways from 4American Cyanaumd Co.. 246 NRH 87 (1979). relied on by
the Administrative Law Judge Unlike the situation presented here, the
subject of the strike in Amerwtan Cyanamid was within reasonable antici-
pation of the contracting parties Further. in that case. the parties' actual
Intent regarding the coverage of the rio-strike clause could be gleaned
from the well-established bargaining history of the clause. Finally the
colntractual grie ance-arhitation provision and the no-strike provision in-
vllvred i .4merican Cleanamid were rlot contiguous those two provisionll
are contiguous in the contract being considered in this case
830
PACEMAKER YACHT CO.
requiring explicit evidence that a waiver of the
right to strike occurred. The cause of the June 21
strike by the Respondent's employees was a break-
down of one of the major components of the col-
lective-bargaining agreement, namely, the suspen-
sion of employees' medical benefits. Unlike the
sympathy strike, the walkout here was over a
matter which intimately related to the terms and
conditions of employment of the striking employ-
ees.
As the Board stated in Keller-Crescent Company,
217 NLRB 685, 687 (1975), the right to strike
"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 consideration
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 ex-
press language in the contract." We conclude that
the evidence in this case falls short of this requisite
standard of proof. Accordingly, we find that the
Respondent's termination of the 126 employees
who struck on June 21 and its refusal to reinstate
26 of them on the ground they were instigators,
was not protected by the no-strike clause embodied
in article X of the collective-bargaining agreement,
and thus the Respondent violated Section 8(a)(1) of
the Act by these aforesaid actions.8
THE REMEDY
Having found that the Respondent has engaged
in unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act, we shall order that it cease
and desist therefrom, and take certain affirmative
action designed to effectuate the policies of the
Act.
Accordingly, we shall order the Respondent to
reinstate and make the 126 employees who were
terminated for striking on June 21 whole for any
loss of earnings or employment benefits that they
may have suffered as a result of the discrimination
practiced against them, from the date of their dis-
charge to the date of their reinstatement or an un-
n In its brief to the Board, the Respondent contends that the June 21
strike was unprotected under Sec. 7 iof the Act because the work stop-
page was unauthorized by the Union and was engaged in by a minority
of the bargaining unit, citing as authorit) the Supreme Court's decision in
Emporium Cap.ell Co v Western Addition Community Organization., 420
U.S. 50 (1975). We find the Respondent's reliance on Emporium Capwell
to be misplaced. Unlike in that case, here the strike was not in derogation
of the employees' bargaining representative The Respondent's employees
were not seeking to supplant the Union as their bargaining agent, but
rather were attempting to spur the Respoldent and the Union into action
with respect to the Fund's failure to make the necessary insurance premi-
umn payments
conditional offer of reinstatement. 9 See Southern
Greyhound Lines. Division of Greyhound Lines, Inc.,
169 NLRB 627 (1968). Backpay shall be computed
with interest thereon in the manner prescribed in F.
W. Woolworth Company, 90 NLRB 289 (1950), and
Florida Steel Corporation, 231 NLRB 651 (1977).' °
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Pacemaker Yacht Co., a division of Mission
Marine, Inc., Egg Harbor and Lower Bank, New
Jersey, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging, or refusing to reinstate, any em-
ployee because he has engaged in a work stoppage
protected by Section 7 of the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action which is
designed to effectuate the policies of the Act:
(a) To the extent the Respondent has not already
done so, offer to the 126 employees who were ter-
minated for engaging in the June 21, 1978, work
stoppage immediate and full reinstatement to their
former or substantially equivalent jobs, without
prejudice to their seniority or any other rights and
privileges previously enjoyed, and make whole
those employees for any loss of earnings or em-
ployment benefits which they may have suffered as
a result of the discrimination practiced against
them, in the manner prescribed in the section of
this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Post at its facilities in Egg Harbor and Lower
Bank, New Jersey, copies of the attached notice
marked "Appendix."'" Copies of said notice, on
9 As mentioned above, the Respondent apparently has reinstated 91 of
the 12h employees pursuant to the arbitration awards of July 28. 1978,
and May 16, 1979
"' See, generally, Isis Plumbing d Heating Co.. 138 NLRB 716 (1962).
Member Jenkins would compute interest in accordance with his dissent-
ing opinion in Olympic Medical Corporation. 250 NLRB 146 (1980)
" 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 Laxbor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
831
DECISIONS OF NATIONAL LABOR RELATIONS ()OARD
forms provided by the Regional Director for
Region 4, after being duly signed by the Respond-
ent's authorized representative, shall be posted by
the Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
MF.MBER PENEI.LO, dissenting:
I do not agree with my colleagues that the Re-
spondent unlawfully discharged those employees
who engaged in a strike in violation of the no-
strike clause of the collective-bargaining agreement
between the Respondent and the Union. In doing
so, I rely on my separate position in International
Union of Operating Engineers, Local Union 18,
AFL-CIO (Davis-McKee, Inc.),'2 in which I stated
that unrestricted no-strike clauses such as that in-
volved here should be read to forbid sympathy
strikes as well as direct strikes, unless extrinsic evi-
dence indicated that the parties to the contract in-
tended otherwise.
As noted in the majority opinion, the Respond-
ent and the Union are parties to a contract pursu-
ant to which the Respondent is obligated to make
contributions on behalf of its employees into the
Teamsters Health and Welfare Fund of Philadel-
phia and Vicinity-Local 158. The Fund contracts
with an independent insurance carrier to pay em-
ployee medical benefits.
Sometime in early 1978,'3 the Fund, for some
unknown reason, stopped paying premiums to the
insurance underwriter which thereupon suspended
benefit payments to covered employees. Employee
dissatisfaction over this matter reached a peak on
June 19, despite efforts by the Respondent and the
Union to resolve the problem, when employees
met as a group to protest the Fund's failure to meet
its obligation. On June 20, the vast majority of em-
ployees declined to report to work although offi-
cials of the Respondent and the Union urged them
to do so. The Respondent was forced to close its
facilities and, on June 21, distributed a notice to the
striking employees that they were in violation of
the no-strike clause of the contract and that those
employees who continued to fail to report to work
would be replaced. Eventually, 126 employees
12 238 NLRB 357 (1978)
I All dates are in 1978, unless indicated otherwise.
were terminated. The Union filed a grievance on
their behalf which was taken to arbitration. The ar-
bitrator determined that the employees had in fact
engaged in a work stoppage in violation of the no-
strike clause of the contract and that the Respond-
ent had the right to terminate them. However, the
arbitrator provided for preferential recall of the
strikers.
The no-strike clause of the Respondent's con-
tract with the Union is a broad and unrestricted
no-strike clause, providing, in pertinent part, as fol-
lows:
So long as this agreement is in effect . . . the
Union agrees that there will be no strike, pick-
eting, slowdowns, deliberate curtailment of
production, work stoppages of any kind or
other interruption of the Company's oper-
ations. In the event one or more employees fail
to abide by the provisions of this Article, the
Company retains full right to take any disci-
plinary action it deems necessary, including
discharge.
Applying the principles set forth in my separate
position in Davis-McKee, supra, I find that this
clause should be read to prohibit the strike engaged
in by the Respondent's employees. Moreover, there
is no extrinsic evidence to show that the parties in-
tended the no-strike clause to mean anything other
that what it says; there is no claim that there is any
relevant bargaining history as to the meaning of
the clause, and opinions expressed by union offi-
cials as to the invalidity of the strike are insuffi-
cient to show the intent of the parties.
I recognized in Davis-McKee that there are ex-
ceptions to the rule which I there proposed, one of
them being the continued right of employees to
strike in protest of serious unfair labor practices
committed against them by their employer. 14 In
the instant case, there is no allegation that the Re-
spondent engaged in any unfair labor practices, let
alone any which would have permitted its employ-
ees to strike against it. In fact, the Respondent did
everything it could to resolve the dispute between
its employees and the Fund. At the outset, the Re-
spondent met its contractual obligation to make
contributions on behalf of its employees into the
Fund. Thus, there is no claim that any act of the
Respondent precipitated the failure of the insurance
carrier retained by the Fund to pay employee
claims. Aware of the dissatisfaction caused by this
failure among its employees, the Respondent con-
tacted the Union by letter, expressed its concern
1' See my separate position in The Dow Chemical Company, 244 NLRB
106) (1979)
832
PACEMAKER YACHT CO)
over the matter, and offered to keep its employees
informed of any action being taken to resolve the
problem. When the employees first declined to
report to work on June 19, the Respondent's offi-
cials successfully urged a number of employees to
abandon the strike. Only when confronted with the
continued failure of 126 employees to abandon
their work stoppage did the Respondent lawfully
invoke the no-strike clause of the contract and ter-
minate those employees who did not return to
work. Finally, although the Respondent maintained
throughout the arbitration proceeding that the ter-
minations were contractually justified, it has com-
plied with the terms of the arbitration awards pro-
viding for preferential recall of the strikers. Thus,
there can be no argument that the Respondent was
responsible for or in any manner contributed to the
discontent which led its employees to go out on
strike.
Accordingly, those employees who went on
strike did so in direct contravention of the no-strike
clause of their contract. Thus, the Respondent was
privileged, in accordance with the express terms of
the no-strike clause, to discharge those employ-
ees. 5
15 With regard to the arbitration award, I am, unlike my colleagues,
unwilling to infer that "it is highly likely that there was a divergence (of
interests" between the Union and the discharged employees during the
arbitration proceedings. There is no claim, and thus no evidence, that the
Union unfairly represented the employees during its handling of their
grievance. In any event, I find it unnecessary to determine whether there
should have been deferral to the arbitration award inasmuch as no specif
ic exceptions have been filed in this regard
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WI.L NOT discharge or refuse to rein-
state any employee because he has engaged in
a work stoppage protected by Section 7 of the
Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the Act.
WE WILL, to the extent we have not already
done so, offer to the 126 employees who were
terminated for engaging in a work stoppage on
June 21, 1978, immediate and full reinstate-
ment to their former or substantially equiva-
lent jobs, without prejudice to their seniority
or any other rights and privileges previously
enjoyed.
WE WILL, to the extent we have not already
done so, make whoie the above-mentioned 126
employees for any loss of earnings or employ-
ment benefits which they may have suffered as
a result of the discrimination practiced against
them, from the date of their discharge to the
date of our valid offer of reinstatement to their
former jobs, together with interest.
PACEMAKER YACHT Co., A DIVISION
OF MISSION MARINE, INC.
DECISION
STATIF:MENI OF IHIF CASE
JOEI. A. HARMATZ, Administrative Law Judge: This
proceeding was heard in Philadelphia, Pennsylvania, on
December 12, 1979, upon an initial unfair labor practice
charge filed on August 18, 1978, and a consolidated com-
plaint issued on January 31, 1979, alleging that Respond-
ent violated Section 8(a)(l) of the Act by terminating
some 126 of its employees because they engaged in a
work stoppage protected by Section 7 of the Act, and
by, thereafter, failing to reinstate approximately 41 of
said employees. In its duly filed answer, Respondent
denied that any unfair labor practices were committed
and set forth certain affirmative defenses. After close of
the hearing, briefs were filed on behalf of the General
Counsel and Respondent.
Upon the entire record in this proceeding, and after
consideration of the post-hearing briefs, I hereby make
the following:
FIN)IN;S O FAC1
I. JURISDICTrlON
Respondent is a California corporation engaged in the
manufacture of fiberglass pleasure boats at its Egg
Harbor and Lower Bank, New Jersey, facilities. During
the year preceding issuance of the complaint, a repre-
sentative period, Respondent sold and delivered goods
exceeding $50,000 in value to customers located outside
the State of New Jersey.
The complaint alleges, the answer admits, and I find
that Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOL.VED
The complaint alleges, the answer admits, and I find
that the Charging Party is, and has been at all times ma-
terial herein, a labor organization within the meaning of
Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
This proceeding falls within a series of Board cases
giving rise to vital questions as to the degree to which
employers may point to duly negotiated contractual re-
833
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strictions on strike action as a means of maintaining disci-
pline in the context of an unauthorized work stoppage
during the term of a collective-bargaining agreement.
There is no serious factual controversy, the parties
having spurned parole testimony, instead choosing to
proceed on stipulations and a number of documents.
It appears that over the years Respondent's employees
at the two plants involved herein have been represented
by the Union, and that at the time of the events in issue,
a collective-bargaining agreement was in effect, with a
scheduled term of May 31, 1977, to May 30, 1980. In-
cluded therein was a health and welfare benefit program.
By virtue thereof, the Employer assumed the obligation
to pay 30-cents per hour to an outside entity, the Team-
sters Health and Welfare Fund of Philadelphia and Vi-
cinity, herein called the Fund, a joint employer-union
venture. Pursuant to the contract, Respondent's obliga-
tion concerning such benefits was confined to said con-
tribution, and when benefit eligibility is established, the
employee is to receive payment from the Fund. Thus,
Respondent incurred no obligation with respect to bene-
fit payment, nor was it obliged to guarantee that the
Fund fulfilled its obligations to employees.
The Fund did not, itself, underwrite the health and
welfare program. An independent insurance carrier was
retained by the Fund for that purpose. During the first
half of 1978, the Fund stopped paying premiums to the
insurance carrier, whereupon the carrier suspended bene-
fit payments to and on behalf of covered employees.
Although the Employer, at all times material, stood in
compliance with its contractual duty to remit financial
contributions to the Fund, the inability of its employees
to realize benefits produced dissatisfaction within the
work force. While efforts by the Union to resolve the
problem began in April 1978, on May 30, 1978, David
W. Schoemaker, Respondent's vice president, wrote the
Union, pointing out that the Company had been con-
fronted by employees raising questions as to the payment
of claims by the Fund. That letter expressed manage-
ment's concern with "the intense and growing dissatis-
faction within the plant and specifically the remaining
unpaid claims," and concluded with the following para-
graph:
If there is any reassurance that our Personnel De-
partment can give these employees as to the action
being taken, we would be pleased to know and ac-
cordingly communicate it to the employees. Please
let us know how we can advise these people. I
Apparently, there being no visible solution, on June
19, 1978,2 after work, Respondent's employees met on a
parking lot at the Company's Lower Bank facility to
protest the Fund's failure to meet its obligations under
the medical insurance plan. This protest continued on
July 20, when at 8 a.m., the scheduled starting time, only
a small number of employees entered the plant, with
about 200 of their coworkers remaining on the parking
lot, declining to report for work. Respondent's officials
and union representatives confronted those involved, and
1 See J Eh 7.
'Unless otherwise indicated, all dates refer to 1978.
on their urging, most entered the plant, and reported to
their jobs. Those who refused, first continued to demon-
strate on the parking lot at the Lower Bank plant and
then, carrying the quarrel to union headquarters, stopped
at Respondent's Egg Harbor facility, verbally urging em-
ployees at that site to leave their jobs. In the meantime,
at Lower Bank, the stoppage expanded following the
lunch-break, when only a few employees returned to
work. In consequence, the Company closed that plant,
and, later, closed the Egg Harbor facility when employ-
ees assigned there did not return from lunch. For the
balance of that day, the Union's president, its business
agent, and stewards appealed to the strikers explaining
that their action was in violation of labor agreement and
urged them to return to work. Their efforts proved fruit-
less.
Faced with these circumstances, the Company on the
afternoon of June 20, prepared the following notice to
employees:
IMPORTANT NOTICE
TO: ALL EMPLOYEES OF PACEMAKER
YACHT CO.
On Tuesday, June 20, 1978, a majority of bar-
gaining unit employees violated Article X of the
Union contract, the "No Strike" provision. In addi-
tion to staying out or walking out of our plants, em-
ployees participated in demonstration picketing and
turned delivery trucks away.
Many employees said the reason for the unau-
thorized walkout was to protest the failure of the
Teamsters Union 158 Health & Welfare Fund to
pay certain claims felt to be due a number of Pace-
maker bargaining unit employees.
Each employee is hereby notified to report to
work no later than the start of his next regularly
scheduled shift. Anyone who fails to do so will be
considered to have quit his job and the Company
will hire permanent replacements.
David W. Shoemaker
Vice President
The next day, July 21, the above was distributed to each
employee, but approximately 146 defied the warning by
refusing to return to work. When a union representative
arrived at the Lower Bank plant, he was informed of the
Company's action, prompting a further appeal that the
strikers return to work. They adamantly refused. That
representative then entered the plant, and after confer-
ring with company officials, communicated with the
Fund and received information that the impediment to
payment of employee claims had been removed, and that
in the interim, an arrangement would be made whereby
the Fund would pay the outstanding claims from its gen-
eral funds. The union representative then informed non-
strikers and strikers of this development.
On Thursday, June 22, 1978, Respondent informed the
Union that the employee who failed to report for work,
as instructed on the previous morning, would be denied
834
PACEMAKER YACHT CO.
reinstatement, but would be considered for employment
as new applicants. The Union urged their reinstatement
and on the Company's refusal, a grievance was submitted
on behalf of the strikers. That grievance was processed
to arbitrate pursuant to article IX of the governing col-
lective- bargaining agreement. Throughout that proceed-
ing, Respondent maintained that the terminations were
justified by article X of the contract which, in material
part, provides as follows:
NO STRIKES OR LOCKOUTS
10.1. So long as this agreement is in effect, the
Company agrees that there shall be no lockouts and
the Union agrees that there will be no strikes, pick-
eting, slowdowns, deliberate curtailment of produc-
tion, work stoppages of any kind or other interrup-
tion of the Company's operations. In the event one
or more employees fail to abide by the provisions of
this Article, the Company retains full right to take
any disciplinary action it deems necessary, including
discharge.
On July 28, 1978, Arbitrator S. Herbert Unterberger
issued his award,3 through which he concluded, inter
alia, that the strikers had "engaged in a work stoppage in
direct violation of . . . of Section 10.1 of the labor
agreement and against the specific direction of their
union leadership." The award continues, "Under those
circumstances, that provision gives the Company the 'full
right to take any disciplinary action, it deems necessary,
including discharge.' The Company is found to have had
the right to do that." Nonetheless, the award provided
for preferential recall in accordance with seniority of the
strikers, without prejudice to their seniority, while allow-
ing the Employer to deny recall to strikers whom it, in a
subsequent grievance procedure, could identify as insti-
gators of the strike.4
B. Analysis
Through his claim that the strikers were terminated in
violation of Section 8(a)(l) of the Act, the General
Counsel seeks to nullify the arbitration awards and to
reduce to the inapposite, the no-work stoppage clause of
the contract invoked by Respondent with respect to the
strikers." Thus, full reinstatement and backpay is sought
on behalf of all who disregarded the Employer's ultima-
tum of July 20 and the Union's counsel that they aban-
don the stoppage and return to work.
Upon analysis, firstly and contrary to Respondent, no
serious challenge is laid to the General Counsel's premise
that, but for the constraints of the no-strike clause, Sec-
3 See J. Exh I
A further arbitration proceeding was held pertaining to the Employ-
er's claim that certain strikers should be denied recall under the terms of
the Unterberger award. since alleged instigators. On May 16. 1979, Arbi-
trator J. Charles Short issued an award in this regard, concluding that of
some 26 strikers, whose status was in issue. six were entitled to recall and
20 were not. It appears that the Employer complied with all terms of the
foregoing Short and Unterberger awards
There is neither claim nor evidence in this proceeding that Respond-
ent effected the discharges for reasons other than its desire to enforce
contractually specified restraints or work stoppages.
tion 7 would protect the beneficiaries of the instant com-
plaint. Viewed in the abstract, the concerted effort to
protest a default with respect to specific benefits they
were to enjoy by operation of a contractual arrangement
to which their employer, during negotiations, had con-
sented, is well within the ambit of concerted employee
action protected by the Statute.
This brings to the question of whether the stoppage re-
mains protected in the face of a no-strike clause. Con-
tractual regulation of the right to strike is in consonance
with the Congressional design to protect channels of
commerce from industrial strife. Section I of the Act
outlines this objective in the following terms:
Experience has proved that protection by law of
the right of employees to organize and bargain col-
lectively safeguards commerce from injury, impair-
ment, or interruption, and promotes the flow of
commerce by removing certain recognized sources
of industrial strife and unrest, by encouraging prac-
tices fundamental to the friendly adjustment of in-
dustrial disputes arising out of differences as to
wages, hours, or other working conditions, and by
restoring equality of bargaining power between em-
ployers and employees.
The desirable impact on commerce realized through pro-
tection of collective bargaining is aided measurably by
maintaining the integrity of negotiated contracts, a fact
which tends to produce tension between statutory guar-
antees to employees and these other broader objectives.
Accordingly, in N.L.R.B. v. Sands Manufacturing Co.,
306 U.S. 332, 344 (1939), the Supreme Court observed
that employees are not free to disregard the obligations
imposed on them through the bargaining process, by
stating as follows:
The Act does not prohibit an effective discharge for
repudiation by the employee of his agreement, any
more than it prohibits such discharge for a tort
committed against the employer. 6
Along that same line, in Mastro Plastics Corp., and
French-American Reeds Mfg. Co., Inc. v. N.L.R.B., 350
U.S. 270 (1956), the Supreme Court observed (at 280)
that:
. .collective bargaining contracts frequently have
included certain waivers of the employees' right to
strike and of the employers' right to lockout to en-
force their respective economic demands during the
term of those contracts . .. such waivers contribute
to the normal flow of commerce and to the mainte-
nance of regular production schedules. Individuals
violating such clauses appropriately lose their status
as employees.
The General Counsel manifests no quarrel with the
above principles, but argues instead that article X of the
subsisting agreement failed to embody a "waiver" meet-
ing evidentiary standards laid down by the Board, and
hence contends that the work stoppage in issue was inof-
6 3(06 li S at 344
835
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fensive to the contract. 7 His position in this regard is not
lacking in support. Thus, in 1972 the right of employers
to invoke contractual restrictions to justify discipline
against sympathy strikers was diminished measurably. At
that time, in Gary-Hobart Water Corporation, 210 NLRB
742 (1974), a sharply divided board s held that acontrac-
tual no-strike pledge furnished no defense to the termina-
tion of employee-participants in a sympathy strike.9 That
case involved employees of a single employer represent-
ed separately in production and maintenance (herein
called p & m) and clerical units. A contract covering p &
m workers had expired and the latter engaged in an eco-
nomic strike in support of their demands. The clerical
employees, who at the time remained covered by a sub-
sisting collective-bargaining agreement, with a no-strike
clause,' ° elected to honor the p & m picket line. Follow-
ing an unheeded warning, the employer notified each of
the clerical employees that they had been terminated be-
cause they violated the no-strike clause. In rejecting the
employer's contractual defense, the majority rested on
two fundamental predicates. First, it was concluded that
the scope of the no-strike clause and its viability as a de-
fense to the discharge of the strikers was to be measured
in the light of the Board's established waiver test. In this
regard, the Board stated (at 744):
While statutory rights may be waived . . . the
Board and the Courts have repeatedly emphasized
that such waiver will not be readily inferred, and
This view would not have been maintainable under precedent f the
Board prior to 1972, when contractual no-strike provisions of the type
involved here were viewed as a defense to the discharge of employees
who honored picket lines in sympathy with employees party to a dispute
not affecting the unit of the former. See, e g.. L.ocal 12419. International
Union of District 50, United Mine Workers of America (National Grinding
Wheel Company. Incl) 176 NLRB 628 (1969): and cf. N.L.R.. r
Rockawao NewsVs Supply Company, Inc.. 345 ULS. 71. 80 (1953).
a Members Fanning, Jenkins, and Penello for the majority; with Chair-
man Miller and Member Kennedy dissenting.
The decision of the majority was enforced at 511 F 2d 284 (7th Cir
1975), cert denied 423 UtS. 925 (1975).
io The contract applicable to the clerical unit in Gary-Hobart included
two provisions bearing upon strike action they are set forth below
Article V
It is expressly understood and agreed that the services to be and
being performed by the employees covered by this agreement per-
tain to and are essential to the operation of a public utility and to the
welfare of the public dependent thereon. and ill consideration there
of, and of the agreement and conditions herein hby and between the
Company and the Union be kept and performed, the Company and
the Union mutually agree that during the term of this agreement
there shall be no lockouts by the Company and there shall be no
strike, stoppages of work or any other form of interference with any
of the production or other operations of the Company by the Union
or its members, and any and all disputes and controversies arising
under or in connection with the terms or provisions hereof shall be
subject to the grievance procedure hereinafter set forth if the griev-
ance is filed within ninety (90) days of the occurrence .
Article XVIII
(2) The Union agrees that there shall be no strikes, slowdowns, or
other interruption of work by any of its members during the term of
this agreement, and the Company agrees that there shall be no lock-
out during the term of this agreement, and both parties agree that
any disputes or ditfferences shall be taken up under the Grievance
and Arbitration procedures of this agreement
there must be a clear and unmistakable showing that
a waiver occurred. And the principle that the
waiver of statutory rights must be clear and un-
equivocal applies to the right to strike, including the
right to engage in a sympathy strike or to honor the
picket line of another union ....
Secondly, the Board, in applying that standard, conclud-
ed that notwithstanding the breadth of the no-strike
clause, its scope was no broader than the contractual dis-
putes settlement machinery. In this regard, the majority
stated at 745:
With the foregoing in mind we turn to a consid-
eration of the no-strike clause in this case. The Gen-
eral Counsel and Charging Party contend that the
waiver of the right to strike is only as extensive as
the scope of the grievance and arbitration proce-
dure of the contract in question. They argue that
when the subject of the dispute is not cognizable
under the grievance arbitration procedure the quid
pro quo for the no-strike clause is no longer present
and the no-strike clause does not apply. We agree.
The Board and the courts, including the Supreme
Court, have indicated no-strike provisions will not
be enforced where the subject of the dispute is not
covered by the grievance-arbitration procedure.
The Supreme Court has spoken to the issue primar-
ily in suits under Section 301 of the Act. In Local
174, Teamsters, Chauffeurs, Warehousemen & Helpers
of America v. Lucas Flour Co., 369 U.S. 95, 105
(1962), the Court said that "a strike to settle a dis-
pute which a collective bargaining agreement pro-
vides shall be settled exclusively and finally by
compulsory arbitration constitutes a violation of the
agreement." However, it added that such a no-
strike agreement is not to be implied "beyond the
area which has been agreed will be exclusively cov-
ered by compulsory arbitration." Likewise, in Boys
Market, Inc. v. Retail Clerks Union, Local 770, 398
U.S. 235, also a Section 301 injunction suit, Justice
Brennan, for the majority, in discussing when a
strike should be enjoined by a district court, stated
that a strike would be enjoined (unprotected) only if
"over a grievance which both parties are contrac-
tually bound to arbitrate."And in the Supreme
Court's most recent pronouncement on the scope of
an arbitration provision, again in a Section 301 con-
text (Gateway Coal Co. v. United Mineworkers of
America, et al., 410 U.S. 953 (1973)), the Court
stated, "No obligation to arbitrate a labor dispute
arises solely by operation of law. The law compels
a party to submit his grievance to arbitration only if
he has contracted to do so."
* * * * *
Nowhere in the contract does the Union specifi-
cally waive the right to honor another union's
picket line. The waiver, if any, must be implied;
however, the waiver of statutory rights is not light-
ly to be inferred. The strike by the clerical unit was
836
I'ACEMAKItR YACHI C().
not over a grievance which the parties were con-
tractually bound to arbitrate. Rather, the strike itself
precipitated the dispute-the validity under the
Union's no-strike obligation of the emnployce-mncm-
hers honoring the p & m unit's picket line. Put lif-
ferently, the dispute was between the p & m unit
and the Respondent and therefore ot resolvable
under the clerical unit's grievance procedure.
It is our opinion that the no-strike, no-lockout
promise was intended to be in effect only when the
dispute between the parties is covered by and an
be resolved by the grievance machinery. Here the
no-strike, no-lockout provisions are inot only includ-
ed in the opening paragraph of the grievance provi-
sioi but are part of the same sentence v hich sets up
the grievance machinery and limits it to "all dis-
putes and controversies arising under or i colnecc-
tion with the terms ... hereof." Indeed, it is diffi-
cult to imagine a placement of the no-slrike provi-
sion which would delineate more clearly or em-
phatically that the no-strike promise does not stand
alone but is part of, and only as extensive as the
scope of, the grievance machinery. Both times that
the no-strike language appears the grievance lan-
guage immediately follows. It is our opinion that
the Union pledged no-strike only over matters
which Respondent agreed to arbitrate.
The reasoning of the Board in Gary-Hobart was ex-
tended beyond the sympathy strike area in Suburban
Transit Corp., 218 NL11B 1228 (1975), on remand from
499 F.2d 78 (3d Cir. 1974). In the latter, employees en-
gaged in a work stoppage during the term of a collec-
tive-bargaining agreement to express their dissatisfaction
with their incumbent bargaining representative. IHowev-
er, in that case, unlike the instant case or Gary-Hobart.
the restriction on strike action was narrow, and expressly
tied to the grievance procedure.
Further impetus was afforded Gary-Hobart. supra, in
International Union of Operating Engineers. Local Union
18, AFL-CIO (Davis-McKee. Inc.), 238 NLRB 652 (1978).
In that case Member Penello, a participant on the major-
ity in Gary-Hobart departed from the Majority's ap-
proach to the waiver doctrine, expressing a preference to
determine such waivers in accordance with the pre-1972
decision in National Grinding Wheel, supra. However, the
Gary-Hobart majority was joined by Members Murphy
and Truesdale and reaffirmed the principle that "broad
no-strike clauses, without more, are insufficient to estab-
lish waiver of the right to engage in sympathy strikes,
. ." and reiterated the waiver standard, as follows:
'A The Board. in Suburban transit at 1229, described the applicable
no-strike clause as fllows.
The "no strike" proision is the last clause in Article 13, ntitled
"Discipline and Invesligation," which describes the grievance proce-
dure. The clause reads:
F. Recourse to outside trihunals will not be made by either
party until the Grand Lodge of the Union has been advised and
given a reasonable opportuniy to intervene aid dispose of ir
adjust the situation as the case mat be This, ith the understand-
ing that there shall he no alhil ciid strike during such period the
dispute is pending under Ihe dlscussion with either the local lodge
or the Grand Lodge
In assessing an allegation that a party had contrac-
tually waived rights granted by the Act, traditiottal-
ly the Board and the Courts have declined to infer
readily such relinquishment, requiring instead a
showing of "clear and utnmistakable" waiver ....
Waiver may he found in express contractual lan-
guage or in unequivocal extrinsic evidence bearing
upon ambiguous contractual language . . . . [W]e
believe that the Board has applied and should con-
tinue to apply this strict standard to assess the al-
leged aivers of the fundamental right to strike in
genceral 12
We will not infer a waiver of the protected
right to engage in sympathy strikes solely from an
agreement to refrain from all "stoppages of work."
Rather, we shall require that the parties, at the very
least, have discussed the question and, preferably,
have expressly embodied in their agreement their
intlent t() extend a strike ban to sympathy strikers.` t
While the foregoing principles tend at least superficial-
ly to enforce the General Counsel's cause, and although
I am bound to follow Board precedent, fundamental dis-
tinctions are present here. Unlike Gar-Hobhart and Davs-
McKee, the instant case does not raise questions as to the
protection afforded employer's under a broad no-strike
clause is-a-vis sympathy strikers. '4 The importance of
this difference lies in the fact that parties to collective
bargaining are rightfully charged with anticipation of
picket line problems and indeed the right to cross such
lines and to engage in sympathy action is often subject to
express regulation by collective-bargaining agreements.
In short, sympathy strikes are a phenomenon familiar to
the industrial experience and possess a degree of notori-
ety sufficient to place the parties to negotiations on
notice that regulation thereof is highly relevant to con-
tract deliberations.
But what of this case'? Here, the Employer negotiated
a broad, comprehensive no-strike clause and one could
hardly assume that employees were unmindful of its
scope. Yet, they struck in connection with a dispute
which did not lie against the contracting employer, but
related to an outside entity's failure to maintain commit-
ments to an insurance carrier, and the resulting failure of
the latter, to pay accrued benefits.
Viewed against the foregoing, serious doubt exists as
to whether the strict evidentiary burden imposed upon
parties invoking contractual defenses serves statutory ob-
jectives in a case such as this. In Mastro Plastics Corp. v.
N.L.R.B., supra at 279, the Supreme Court observed:
We have two declared congressional policies which
it is our responsibility to try to reconcile. The one
seeks to preserve a competitive business economy;
i2 231 NI RB h52
l 23. NRB 52.
IUnlike Suhurbhial rc!:nit. uirp . this case des ii a iclude a strike
h;ln sli. h, by its cipr-s tcrins. is limited ,, disputes pending under the
grievance liai h l ltn r
X37
DECISIONS ()1 NA'IONAL LA13)R REL.AIIONS BOARD
the other to preserve the rights of labor . . . to
better its conditions . ... We must determine here
how far C,,nrcs., itclded activities under one of
these policies to neutralize the results envisioned by
the other.
The waiver test evolved as a means of accommodating
these competing interests. Its application with an eye on
realities is essential to the balance. To apply the eviden-
tiary test blindly might well entail a mechanistic prefer-
enLc for industrial anarchy at the expense of collective
catig:ining and the stabilizing influence of resulting
Jai,.ements That which ultimately appears in collective-
a:3gaining agreements or in the exchange of proposals
and counterproposals leading thereto does not arise in a
vacuum but from that which experience contributes to
the parties anticipation and concern. Hence caution
should be exercised where the terms of a no-strike clause
lack absolute specificity, but have a broad and compre-
hensive scope and are cast in understandable language
representing the only conceivable means by which the
parties to negotiation could have anticipated and regulat-
ed the subject matter.
This is just such a case. The stoppage in question
could hardly be forecast to allow development of a bar-
gairing history or contract language sufficiently specific
to satisfy conventional application of the Board's waiver
test.15 Yet, it is not unusual for the parties to collective-
bargaining to preserve their respective interests through
broad comprchensiv;c language. This is what occurred
here. Art;-!c X of the governing collective bargaining
agreement wa a eparate provision which in unqualified
language placed under interdict every form of work
stoppage. It constituted an independent contractual re-
straint so broad as to make its reach clear to all covered
thereby.
This construction is not altered by article IX, which
repeats a no-strike pledge as part of the preamble to the
grievance arrangement. Contrary to the General Coun-
sel, this language does not control. To so hold would
reduce article X to the redundant, and ignore the obvi-
ous assumption that the inclusion of article X was inten-
tional and to accomplish more far reaching objectives. A
similar conclusion was reached in American Cyanamid
Co., 246 NLRB 87 (1979),16 where the lawfulness of the
discharge of sympathy strikers was upheld, with the
Board stating (at 8-9):
Turning to tne provisions themselves, they do not
fall neatly within the pattern presented in recent
cases. For the Board's decisions have usually been
s The Respondent contends that voluminous and unequivocal evi-
dence of an extrinsic nature establishes that the intent embodied in article
X of the contract was to interdict stoppages of the type involved here.
That evidence, however, is confined to union expressions during and
after the work stoppage. While this evidence is entitled to some weight,
in and of itself, it is not sufficiently "unequivocal" to constitute a waiver.
Furthermore, I fail to see how there could be a "conscious yielding"
during negotiations with respect to a precise dispute, which was beyond
the realm of reasonable anticipation
t" Chairman Fanning and Member Jenkins, with Member Penello con-
curring.
premised on a finding that the no-strike provision
was linked to the grievance-arbitration provisions
and therefor covered only strikes over disputes sub-
ject to the grievance arbitration machinery. See In-
ternational Union of Operating Engineers, Local 18,
AFL-CIO (David-McKee, Inc.). .. Gary-Hobart
Water Corporation . . .. Here such a finding is not
easily made. The grievance procedure, set forth in
one article of the agreement, contains its own prohi-
bition of work stoppages over "any differences or
local trouble of any kind aris[ing] in the plant," in
favor of use of the grievance-arbitration procedure.
A separate article of the agreement, entitled
"Strikes and Lockouts," contains its own, even
broader, no-strike provisions. The two articles are
not contiguous. Following the second set of no-
strike provisions is the representation that: "the
Company on its part agrees that there shall be no
lockout of the Union or its members during the life
of this Agreement." The structure of the contract
therefor suggests that, unlike the usual case, here
the broad no-strike provisions in the "Strikes and
Lockouts" article were not the quid pro quo for Re-
spondent's agreement to arbitrate disputes, but were
an independent undertaking by the Union in return
for Respondent's no-lockout pledge.
Although in American Cyanamid, the Board's dismissal
was also predicated on other extrinsic evidence which it
deemed substantial to support a waiver, the sum of the
factors on which it relied were no more specific than in-
volved here. Indeed, dismissal of the complaint was in
the context of a dispute within reasonable anticipation of
the contracting parties. In any event, it is my conclusion,
herein, that where the (I) no-strike clause is broad and
unrestrictive and appears in a contractual setting which
suggests an intention on the part of the parties not to
reduce its scope to matters covered by the grievance-ar-
bitration provisions, and (2) where the stoppage in ques-
tion occurs in connection with a dispute, the specific
nature of which is beyond anticipation of the parties to
negotiations, the burden carried by the party urging a
contractual defense ought not be imposed with rigidity.
Instead, viewing the realities as dispositive, I find that
Respondent did not violate Section 8(a)(l) of the Act by
said terminations, and it shall be recommended that the
complaint herein be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing or Section 2(5) of the Act.
3. Respondent did not violate Section 8(a)(1) of the
Act by discharging employees who engaged in a work
stoppage in violation of a subsisting no-strike clause in
the governing collective-bargaining agreement.
[Recommended Order for dismissal omitted from pub-
lication.]
838