Pilot Freight Carriers, Inc.

National Labor Relations Board - Board Decisions

Jun 2, 1976

224 N.L.R.B. 341 (N.L.R.B. 1976)

PILOT FREIGHT CARRIERS, INC 341
Pilot Freight Carriers , Inc. and Theresa Gallitzin.
Case 8-CA-8648
June 2, 1976
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND WALTHER
On February 28, 1975, Administrative Law Judge
James V Constantine issued the attached Decision
in this proceeding Thereafter, the Respondent and
the General Counsel filed exceptions The General
Counsel filed a supporting brief
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith
Respondent is charged with violating Section
8(a)(3) and (1) of the Act by discharging Theresa
Gallitzin because she refused to cross a picket line
Respondent claims that her discharge was justified
under the provisions of the collective-bargaining
agreement it has with Teamsters Local 497, of which
Gallitzin is a member The Administrative Law
Judge agreed with Respondent and dismissed the
complaint in its entirety We disagree with the Ad-
ministrative Law Judge
Respondent operates terminals providing inter-
state transportation throughout the United States
The two terminals pertinent to the instant proceeding
are located in West Richfield, Ohio, the site of the
present dispute, and Jacksonville, Florida In Febru-
ary 1974,1 Local 512 which represents employees at
the Jacksonville terminal, commenced a strike
against Respondent there The Board subsequently
found that the strike by Local 512 against
Respondent's Jacksonville operations was an unfair
labor practice strike That strike was initiated as a
result of Respondent's unlawful discharge of an em-
ployee in violation of Section 8(a)(3), and by
Respondent's refusal to bargain with Local 512 in
violation of Section 8(a)(5) 2
In early March, Local 512 set up a picket line at
the West Richfield terminal All the office clericals,
including Gallitzin, and the majority of drivers and
dockmen honored the Local 512 picket line It was
1 All dates are 1974 unless specifically stated otherwise
2 Pilot Freight Carriers, Inc, 223 NLRB 286 (1976)
stipulated at the hearing that Gallitzin refused to
cross the picket line and engaged in such picketing
on behalf of Local 512 On June 14, Gallitzin and
another office clerical 3 were terminated by Respon-
dent The notice of termination stated that she had
been discharged in accordance with article 9, section
10, of Local 497's agreement with Respondent
Article 9 contains provisions governing the griev-
ance procedure Sections 9 and 10 provide that there
shall be no strikes or any other cessation of work
during the processing of a grievance, except that the
Union has the right to authorize a work stoppage if it
notifies the Employer 24 hours before the com-
mencement thereof Failure to so notify results in the
work stoppage being unauthorized The employer
has the right to discharge an employee 24 hours after
the beginning of any unauthorized work stoppage
A further provision of the contract pertinent to the
proceeding herein is article 20, entitled "Protection
of Rights"
It shall not be a violation of this Agreement and
shall not be cause for discharge if any employee
refuses to go through a primary picket line rec-
ognized by Teamsters Joint Council No 41
In dismissing the complaint, the Administrative
Law Judge found that Gallitzin's refusal to work
constituted an unauthorized cessation of work pro-
hibited by article 9, section 10 The Administrative
Law Judge therefore concluded that her discharge
was lawful under the contract He noted in particular
that there was no evidence that Local 497 authorized
the work stoppage, or that Respondent received any
notice of the stoppage as required by article 9, sec-
tion 10 °
In his exceptions, the General Counsel claims that
article 9, section 10, is not the applicable contract
provision, because that section pertains to strikes
during the pendency of grievances between the Re-
spondent and Local 497, and there was no such
grievance herein The General Counsel contends that
article 20, which deals with sympathy strikes, is the
pertinent contract provision The General Counsel
argues that sympathy strikes are outside the scope of
the no-strike clause in article 9, so that Gallitziri
could not be discharged under that section for engag-
ing in a sympathy strike According to the General
Counsel, the conduct engaged in by Gallitzin on be-
half of Local 512 was protected by article 20
We agree with the General Counsel that Gallitzin
3 The other clerical is not a party to this proceeding
° The Boards decision in the Local 512 case, supra, In 2, issued after the
Administrative Law Judge's Decision in the present case At the hearing the
Administrative Law Judge rejected the General Counsels contention that
he should receive evidence as to the nature of the Local 512 strike or take
judicial notice of the Administrative Law Judge's findings in that case with
respect to the strike
224 NLRB No 46
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was unlawfully discharged, and that article 20 of the
contract relates to her situation However, in reach-
ing our decision, we are of the opinion that, as a
practical matter, the application of either article 9 or
article 20 would not alter the final results herein As
a striker in sympathy for Local 512 's cause, Gallitzin
assumed the status of the Local 512 unfair labor
practice strikers 5 In view of her protected status as
an unfair labor practice striker, and considering the
seriousness of the unfair labor practices which
prompted the underlying strike by Local 512, we find
that, even assuming that evidence of notice to Re-
spondent by Local 497 as required by article 9 and
evidence of recognition by the Joint Council as re-
quired by article 20 are lacking, Gallitzin's activity
remains protected under both the majority and mi-
nority views expressed in Arlan's Department Store of
Michigan Inc,' and that her discharge was therefore
in violation of Section 8(a)(3) and (1) of the Act
THE REMEDY
We have found, contrary to the Administrative
Law Judge, that Respondent engaged in certain un-
fair labor practices in violation of Section 8(a)(3) and
(1) of the Act by discharging Theresa Gallitzin on
June 14, 1974, for engaging in protected activities In
our opinion, it is necessary in order to effectuate the
purposes of the Act that Respondent be ordered to
cease and desist from engaging in such unfair labor
practices and to reinstate Theresa Gallitzin to her
former job, or, if such job no longer exists, to a sub-
stantially equivalent position, with backpay We shall
order Respondent to make her whole for any loss of
earnings she may have earned absent the discrimina-
tion against her by payment of a sum equal to that
she normally would have earned, from the date of
the discrimination to the date Respondent offers her
reinstatement, less her net earnings for that period
Backpay shall be computed in the manner set forth
in F W Woolworth Company, 90 NLRB 289 (1950),
5 See Hoffman Beverage Company, 163 NLRB 981 (1967)
6 133 NLRB 802 (1961) The view of the majority in Arlan s was that only
strikes in protest against serious unfair labor practices should be held im-
mune from a general no -strike clause "Serious" was read to mean destruc-
tive of the foundation on which collective bargaining must rest which were
the words used by the Supreme Court in Mastro Plastics Corp, and French
American Reeds Mfg Co, Inc v N L R B 350 U S 270 281 (1956) Surely
it cannot be denied that an unlawful discharge and an unlawful refusal to
bargain are such serious matters that a strike in protest of or in support
against such practices should be, and is, protected, even in the face of any
injunction against primary or sympathy strikes contained in articles 9 and
20, respectively Member Fanning, in expressing the minority viewpoint in
Arlan 's, placed emphasis on the scope and coverage of the no-strike clause
not on the degree and kind of unfair labor practices which may be involved
In his view, such a clause would not bar a strike if the subject matter of the
strike was outside the scope of the contract The issue over which Gallitzin
ceased work was unfair labor practices directed at employees represented by
Local 512, and such issue was not cognizable under Local 497's contract
with interest added thereto as set forth in Isis Plumb-
ing & Heating Co, 138 NLRB 716 (1962)
CONCLUSIONS OF LAW
1 Pilot Freight Carriers, Inc, is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act
2 Teamsters Local Union 497 and Teamsters Lo-
cal Union 512, both affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, are labor organizations
within the meaning of Section 2(5) of the Act
3 By discharging Theresa Gallitzin for engaging
in protected concerted activities, Respondent has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act
4 The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of
the Act
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, Pi-
lot Freight Carriers, Inc, West Richfield, Ohio, its
officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed in Section
7 of the Act, and discriminating in regard to hire,
tenure, and other conditions of employment by dis-
charging employees because they engaged in protect-
ed concerted activities
(b) In any other manner interfering with, restrain-
ing, and coercing its employees in the exercise of
their rights guaranteed by Section 7 of the Act
2 Take the following affirmative action
(a) Offer to Theresa Gallitzin immediate and full
reinstatement to her former job, or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or other rights and
privileges, and make her whole for any loss of pay
which she may have incurred by reason of
Respondent's discrimination against her in the man-
ner described in "The Remedy" section of this Deci-
sion
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
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 place of business in West Richfield,
PILOT FREIGHT CARRIERS, INC 343
Ohio, copies of the attached notice marked "Appen-
dix " I Copies of said notice, on forms provided by
the Regional Director for Region 8, after being duly
signed by Respondent's representative, shall be post-
ed by 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 Respondent to
insure that said notices are not altered, defaced, or
covered by any other material
(d) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with
MEMBER WALTHER, concurring
I agree with my colleagues that Respondent violat-
ed Section 8(a)(3) and (1) of the Act by discharging
Theresa Gallitzin because she refused to cross a pick-
et line However, my reasons for reaching this result
are somewhat different than those advanced by my
colleagues
As I read the collective-bargaming agreement, arti-
cle 9, including the no-strike provision, does not ap-
ply to this case The no-strike clause is clearly limited
to situations in which a grievance is pending Since
no grievance has been filed with respect to
Respondent's activities in Florida, it is evident that
the no-strike prohibition does not encompass
Gallitzin's activities
Since article 9 does not apply to this proceeding, it
is unnecessary for me to reach-and I do not rely
on-my colleagues' apparent extension of the
Arlan's I and Mastro Plastics Corp 9 principles To my
knowledge, this is the first time that an employer's
unfair labor practices at one location have been
deemed to abrogate a no-strike provision in a collec-
tive-bargaining agreement with another labor organi-
zation at another location
I do agree with my colleagues, however, that arti-
cle 20 of the collective-bargaining agreement does
apply to Gallitzin's activities I agree further that
Gallitzin's activities were protected whether or not
the Council approval required by article 20 was giv-
en In the absence of a lawful no-strike provision,
employees enjoy a Section 7 right to engage in sym-
pathy picketing Article 20 provides that such picket-
7 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals the words in the notice reading "Posted by Order
of the National Labor Relations Board shall read `Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board '
8 Arlan's Department Store of Michigan Inc, 133 NLRB 802 (1961)
9 Mastro Plastics Corp and French American Reeds Mfg Co Inc v
NLRB 350 U S 270 (1956)
Ing is permissible under the contract so long as the
requisite Council approval is first acquired
In my judgment, article 20 cannot be considered a
waiver of the employees' right to engage in sympathy
picketing in the absence of the required Council ap-
proval Such waivers must be clear and explicit and
are not lightly to be inferred 10 Since article 20 does
not satisfy the Board's waiver standards, it follows
that Gallitzin's activities were protected irrespective
of whether prior approval was in fact secured
For the foregoing reasons, I agree that Gallitzin's
discharge violated Section 8(a)(3) and (1)
10 Gary-Hobart Water Corporation, 210 NLRB 742 745 (1974)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with, restrain, or
coerce employees in the exercise of rights guar-
anteed by Section 7 of the National Labor Rela-
tions Act or discriminate against them by dis-
charging them for engaging in protected
concerted activities
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of rights guaranteed them by the Act
WE WILL offer Theresa Gallitzin immediate
and full reinstatement to her former job, or, if
such job no longer exists, to a substantially
equivalent position, without prejudice to her se-
niority or other rights and privileges, and make
her whole for any loss of earnings suffered by
reason of her unlawful discharge
PILOT FREIGHT CARRIERS, INC
DECISION
STATEMENT OF THE CASE
JAMES V CONSTANTINE, Administrative Law Judge This
is an unfair labor practice case litigated pursuant to the
provisions of Section 10(b) of the National Labor Rela-
tions Act, as amended, herein called the Act, 29 U S C
160(b) It was commenced by a complaint issued on No-
vember 22, 1974, by the General Counsel of the National
Labor Relations Board, the latter herein called the Board,
through the Regional Director for Region 8 (Cleveland,
Ohio), naming Pilot Freight Carriers, Inc, as the Respon-
dent That complaint is based on a charge and amended
charge filed on October 9 and November 20, 1974, re-
spectively, by the Charging Party, Theresa Gallitzin, an
individual
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In substance the complaint alleges that Respondent vio-
lated Section 8(a)(3) and (1), and that such conduct affects
commerce within the meaning of Section 2(6) and (7), of
the Act Respondent has answered admitting some allega-
tions of the complaint but denying that it committed any
unfair labor practices
Pursuant to due notice this case came to be heard before
me, at Cleveland, Ohio, on January 8, 1975 All parties
were represented at and participated in the hearing, and
had full opportunity to introduce evidence, examine and
cross-examine witnesses, file briefs, and offer oral argu-
ment Counsel for the General Counsel argued orally at the
close of the case A brief has been received from Respon-
dent
This case presents the following issues
1 Whether the Charging Party refused to cross a picket
line, or struck, or both, established by another union than
that representing Respondent's employees at its terminal in
West Richfield, Ohio
2 Whether Respondent discharged the Charging Party
for engaging in the conduct described in the preceding
paragraph and, if so, whether such discharge was unlawful
3 Whether a collective-bargaining contract between the
Charging Party's union and Respondent contained (a) a
no-strike clause, (b) a grievance and arbitration clause, or
both
Upon the entire record in this case, and from my obser-
vation of the demeanor of the witnesses, I make the follow-
ing
FINDINGS OF FACT
I AS TO JURISDICTION
Respondent, a North Carolina corporation, is engaged in
furnishing interstate transportation services Among other
things it operates terminals throughout the United States,
including one in West Richfield, Ohio, and another in
Jacksonville, Florida Annually it receives gross revenue.
in excess of $50,000 for transporting goods and commodi-
ties in interstate commerce The answer admits, and I find,
that Respondent is an employer as defined in Section 2(2),
and is engaged in commerce within the meaning of Section
2(6) and (7), of the Act And I further find that it will
effectuate the purposes of the Act to assert jurisdiction
over Respondent in this proceeding
II THE LABOR ORGANIZATIONS INVOLVED
Teamsters Local Union 497 and Teamsters Local Union
512, both affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen, and Helpers of
America, are labor organizations within the meaning of
Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A General Counsel's Case
It was stipulated at the hearing that (a) General
Counsel's Exhibit 2 at all times material was the collective-
bargaining contract entered into by Respondent and Local
497, (b) Gallitzin, an employee at Respondent's West
Richfield, Ohio, terminal and a member of Teamsters Lo-
cal 497, an Akron, Ohio, Teamsters union, refused to cross
a picket line of Teamsters Local 512 of Jacksonville, Flori-
da, at Respondent's said terminal from on or about March
28 to April 8, 1974, and on or about May I to 29, 1974, (c)
that Gallitzin engaged in such picketing on behalf of said
Local 512 from on or about May 29 to August 16, 1974,
and (d) that Local 512, which represents Respondent's em-
ployees at Jacksonville, Florida, is engaged in a strike of
Respondent at said Jacksonville terminal
It was further stipulated that on June 14Z 1974, Gallitzin
was discharged by Respondent by a writing which reads in
pertinent part "Your employment with Pilot Freight Car-
eers, Inc, is hereby terminated in accordance with Article
9, Section 10 of your collective bargaining Agreement " See
General Counsel's Exhibit 3 for said termination notice
and General Counsel's Exhibit 2 for said collective-bar-
gaining agreement This writing, i e, General Counsel's Ex-
hibit 3, was the only communication, written or oral, which
Gallitzin received informing her that she was terminated
by Respondent
In pertinent part said article 9, section 10, provides that
[As to] any such period of unauthorized stoppages of
work mentioned above, it is specifically understood
and agreed that the Company during the first twenty-
four (24) hour period of such unauthorized work stop-
page shall have the sole and complete right of reason-
able discipline short of discharge and such employee
shall not be entitled to or have any recourse to any
other provision of this Agreement After the first
twenty-four (24) hour period of such stoppage, and if
such stoppage continues the Company 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 employee shall not be entitled to have any
recourse to any other provision of this Agreement In
the event the Union authorizes any work stoppage
or any other cessation of work the Union shall
notify the Company by telegram twenty-four (24)
hours before commencement of such work stoppage,
etc Failure of the Company to receive such notice
prior to the commencement of any work stoppage,
etc, it shall be deemed to be unauthorized for the pur-
pose of this Agreement
In this connection article 20 of said contract states that
It shall not be a violation of this agreement and shall
not be cause for discharge if any employee refuses to
go through a primary picket line recognized by Team-
sters Joint Council No 41 The Union agrees that, in
the event the Company becomes involved in a contro-
versy with any other Union, the Union will do all in its
power to help effect a fair settlement
It was admitted by counsel for the General Counsel that
Local 497 was not on strike against Respondent and "there
was no labor dispute" or grievance involving Local 497
In addition to the foregoing the General Counsel put on
PILOT FREIGHT CARRIERS, INC 345
two witnesses One of them is James F Wykle, secretary-
treasurer and business agent for Local 497 A conspectus
of his testimony follows This Union represented the three
clericals at the West Richfield terminal of Respondent (see
art 1 of G C Exh 2), one of whom is Theresa Gallitzin
Joint Council 41 of the Teamsters and the Teamsters Inter-
national Union has recognized the picket line at said West
Richfield Union within the meaning of article 20 of the
contract between Local 497 and Respondent's terminal at
said West Richfield Said Joint Council 41 sent Local 497 a
telegram that the former was recognizing said picket line
Such telegram is not in evidence
Local 512 of the Teamsters of Jacksonville, Florida, had
a labor dispute with Respondent's terminal at said Jack-
sonville and struck in support of said dispute All the office
clericals and all but three or four of the drivers and dock
men at the West Richfield terminal honored the picket line
of Local 512 at said West Richfield terminal Among the
West Richfield employees who joined the picket line and
also honored said line was Gallitzin
After Gallitzin was terminated Wykle had a "brief hear-
ing" on said action and the discharge of office clerical An-
denero with Mr Wakeman, the terminal's manager Wake-
man then referred Gallitzin's said complaint or grievance
to Respondent's "general office in North Carolina " Said
grievance, dated June 17, 1974, reads as follows "We, the
undersigned, hereby protest our discharge from Pilot
Freight Carriers, Inc, on the basis that we have in no way
violated our contract or agreement, and demand immedi-
ate reinstatement " It was signed by Gallitzin and Andene-
ro (See G C Exh 4) Later said grievance was denied by
Respondent's home office on the ground that it had been
filed late under the terms of the collective-bargaining
agreement Thereafter Wykle briefly discussed said denial
with Wakeman but took no further action Wykle "in-
structed" Gallitzin and Andenero "that it would be legal
for them to honor the strike the picket line" of Local
512 and that they "could join the picket line " At no time
did Local 497 inform Respondent's said terminal that Lo-
cal 497 was respecting or honoring said picket line
Theresa Gallitzin, the Charging Party, also testified for
the General Counsel An adequate abridgment of her testi-
mony is set forth at this point She worked as a clerk-typist
at Respondent's West Richfield terminal beginning No-
vember 2, 1970, and was in the unit covered by the con-
tract between it and Local 497 (See G C Exh 2 for said
contract) On June 14, 1974, she was terminated by a letter
from Respondent (See G C Exh 3 for said letter)
During February 1974, she became aware, "through the
different people in the office" that a "labor dispute in the
nature of a strike [existed] between a Pilot Freight Union
and a Pilot Freight Terminal" in Florida Said "Florida
dispute" affected her West Richfield freight terminal "with
the less and less freight coming in " On March 4, 1974, she
and all the office employees except Joyce Andenero (the
"oldest employee") and all the drivers (except the "oldest
driver") at said West Richfield terminal were laid off Dur-
ing the period of such layoffs and thereafter Teamsters Lo-
cal 512, a Florida union, picketed said West Richfield ter-
minal At first no West Richfield employees took part in
said picketing
About March 28, 1974, General Manager Clifford
Wakeman of said West Richfield terminal told Gallitzin to
return to work as work had become available On April 8
she returned to work As of April 23 there were not, to her
knowledge, "any grievances pending under [the contract]
concerning either Local 512, the 512 strike, or any other
contractual matter " About June 14 she and clerical em-
ployee Joyce Andenero "joined the picket line " It was
stipulated that both Gallitzin and Andenero were terminat-
ed for joining said line This caused both Gallitzin and
Andenero on June 17 to prepare and sign a protest or
grievance over their discharge and submit it to Respon-
dent (See G C Exh 4 for such document)
At this point the General Counsel rested
B Respondent's Case
After the General Counsel rested Respondent also rested
without offering any evidence on the ground that the Gen-
eral Counsel had failed to establish a prima facie case
C Concluding Findings and Discussion
1 Initially, Respondent maintains that the instant case
cannot be heard because the contract with Local 497 con-
tains a clause (Art 9) requiring that all employee griev-
ances must be resolved pursuant to the grievance and arbi-
tration process as provided in the contract See Collyer
Insulated Wire, A Gulf and Western Systems Co 192 NLRB
837 (1971) But assuming that Collyer would apply Respon-
dent may not rely upon it, because although Gallitzin at-
tempted to invoke the contract's grievance machinery Re-
spondent rejected her grievance as untimely Hence I find
that Respondent may not advance its Collyer defense since
Respondent refused to proceed with Gallitzin's grievance
The fact that Gallitzin's grievance was untimely filed is not
fatal since Respondent was in a position to waive the un-
timeliness and proceed with the resolution of the grievance
Cf Gary-Hobart Water Corporation, 210 NLRB 742 (1974)
2 The General Counsel submits that the strike of Local
512 at Jacksonville, Florida, is an unfair labor practice
strike, so that its picketing at West Richfield, Ohio, is in
furtherance of an unfair labor practice strike He also sub-
mits that the contract's clause against an unauthorized
work stoppage does not forbid an employee from engaging
in a strike or work stoppage sympathizing with another
union's unfair labor practice strike See Hoffman Beverage
Co, 163 NLRB 981 (1967) In this connection the General
Counsel requests that I find that the strike of Local 512 is
an unfair labor strike because Administrative Law Judge
Saunders has so found in another case brought against Re-
spondent by Local 512 See consolidated case numbered
12-CA-6267, 6288, and 6384
In my opinion I am not bound by the decision of Ad-
mimstrative Law Judge Saunders in the aforesaid case
And I ruled at the hearing of the instant case that I would
not receive evidence as to the nature of said strike by Local
512 as that issue would be decided by the Board in the case
heard by Administrative Law Judge Saunders Of course
any decision of the Board on such issue will be determina-
tive of the identical issue in the case before me It follows
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that when the case before me reaches the Board the Board
will be able to definitively dispose of this case as said
Board will probably have decided this issue in Administra-
tive Law Judge Saunders' case
3 The General Counsel contends that in any event Gal-
litzin was authorized by article 20 of the contract to refuse
to go through the Local 512 picket line at Respondent's
West Richfield, Ohio, terminal In pertinent part said arti-
cle 20 (see G C Exh 2) declares that "It shall not be a
violation of this Agreement and shall not be cause for dis-
charge if any employee refuses to go through a primary
picket line recognized by Teamsters Joint Council No 41 "
At the hearing the General Counsel offered oral evi-
dence that said Joint Council had sent a telegram to Local
497 to the effect that said Council recognized said picket
line of Local 512 at West Richfield Said evidence was ex-
cluded on the ground that the parol evidence rule prevent-
ed oral evidence as to the contents of a pertinent written
document However, I did grant the General Counsel a
specific time following the close of the instant case to file a
copy of the foregoing telegram with me as an exhibit in this
case Nevertheless no such copy has been received as of the
date of the preparation of this Decision Accordingly, I
find that this contention of the General Counsel has not
been sustained because of a lack of competent proof to
support it
4 Respondent finally contends that Gallitzin's refusal
to work constituted an unauthorized cessation of work pro-
hibited by section 10 of article 9 of the contract between
Respondent and her union, Local 497 (see G C Exh 2), so
that Respondent lawfully discharged her pursuant to said
section 10 I find that this defense is well taken and that
accordingly Gallitzin's termination does not violate the
Act It is undisputed that Gallitzin not only joined the
picket line, but also refused to cross it And I find that such
conduct amounts to a cessation of work by Gallitzin The
question then is whether such refusal to work was unau-
thorized as contemplated by said section 10
Preliminarily I rule that, on this issue, 12th and L Ltd v
Local 99-99A, International Union of Operating Engineers,
396 F Supp 1174 (D C D C, 1976), is not determinative
This is because that case (a) did not contain a contract
clause against a work stoppage similar to that in the instant
case, (b) that case involved a damage suit against a union,
whereas the instant case involves the legality of a dis-
charge, and (c) that case recognizes that some circuit courts
have held contrary to the decision of the D C District
Court See 396 F Supp 1178 Assuming that said 12th And
L case, supra, is applicable, I do not follow it as I believe
the three following cases cited in this paragraph represent a
sounder, but contrary, view Monongahela Power Company
v International Brotherhood of Electrical Workers, AFL-
CIO-CLC, 484 F 2d 1209 (C A 4, 1973), Inland Steel Com-
pany v Local Union No 1545, United Mine Workers of
America, 505 F 2d 293 (C A 7, 1974), and NAPA Pitts-
burgh, Inc v Automotive Chauffeurs, Parts and Garage Em-
ployees Local Union No 926, 502 F 2d 321 (C A 3, 1974),
cert denied 419 U S 1049 (1974)
On the record unfolded before me I am of the opinion,
and find, that Gallitzin's joining the picket line during her
usual working time constituted a work stoppage or a cessa-
tion of work, and that such cessation was unauthorized
Indeed the record is barren of any evidence that (a) Local
Union 497 authorized any work stoppage, or (b) that Re-
spondent received notice of any such stoppage as required
by the last paragraph of Article 9, Section 10 of the con-
tract between Local Union 497 and Respondent It follows,
and I find, that Respondent's discharge of Gallitzin was
sanctioned by the contract and that such termination did
not contravene the Act In my opinion Gary-Hobart Water
Corporation, 210 NLRB 742 (1974), is distinguishable and
does not require an opposite conclusion
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following
CONCLUSIONS OF LAW
1 Local 497 and Local 512 each is a labor organization
within the meaning of Section 2(5) of the Act
2 Respondent is an employer within the meaning of
Section 2(2), and is engaged in commerce as defined in
Section 2(6) and (7), of the Act
3 The General Counsel has failed to establish by the
credited evidence that the Respondent has committed any
of the unfair labor practices averred in the complaint
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed
ORDER1
It is ordered that the complaint be, and it hereby is,
dismissed in its entirety
1 In the event no exceptions are filed as provided by Sec 102 46 of the
Boards Rules and Regulations, the findings, conclusions, recommenda-
tions and recommended Order herein shall, as provided in Sec 102 48 of
said Rules and Regulations, be adopted by the Board and become its find-
ings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes