R-W Service System, Inc.

National Labor Relations Board - Board Decisions

Aug 8, 1979

243 N.L.R.B. 1202 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
R-W Service System, Inc. and Hiram S. Grossman,
Esq. Case 7-CA 14483
August 8, 1979
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS PENEI..O, MURPHY. AND TRUESDAI.
On October 24, 1978, Administrative Law Judge
Lowell Goerlich issued the attached Supplemental
Decision in this proceeding.' Thereafter, the General
Counsel filed exceptions and a supporting brief, and
Respondent filed an answering 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 briefs
and has decided to affirm the rulings, findings.2 and
conclusions of the Administrative Law Judge only to
the extent consistent herewith and to adopt his rec-
ommended Order.
The General Counsel contends that Respondent
violated Section 8(a)(l ) of the Act by discharging An-
thony Williams on July 22, 1977. 3 It is the General
Counsel's position that Respondent hired Williams
with the knowledge that he had participated in an
unprotected strike while working for his previous em-
ployer, thus condoning that action, but nevertheless
subsequently terminated him for having engaged in
such activity. We agree with the Administrative Law
Judge that Respondent did not violate the law by dis-
charging Williams but only for the reasons stated
herein.
Williams was employed as a truckdriver by Auto-
mobile Carriers, Inc., until July 25, 1976, when he
was discharged for participating in a strike in breach
of the governing collective-bargaining agreement.
Donald Sears and George Schweigert, also truckdriv-
I On June I. 1978 the Administrative Law Judge issued his original Deci-
sion and Order recommending that the complaint be dismissed. Thereafter.
finding ment in exceptions filed by tile General Counsel. on September 29,
1978, the Board issued a Decision and Order remanding proceeding to the
Administrative Law Judge in which the Board directed the Administrative
Law Judge to prepare and issue a Supplemental Decision "setting forth the
resolution of material credibility issues, and findings and conclusions with
respect to the unfair labor practices alleged in the complaint."
2 The General Counsel has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard DrY Wall Products, nc.. 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings.
All dates hereinafter are in 1977 unless otherwise indicated.
ers, were likewise dismissed for engaging in the same
unauthorized strike.4
According to his testimony, Sears had an employ-
ment interview for a job as a truckdriver with Rich-
ard Davis, Respondent's Saginaw, Michigan, termi-
nal manager, in May or June. Concerning the work
stoppage which had caused his discharge, Sears in-
formed Davis that the strikers contended that the
strike was protected, but that the struck employers
took the position that t was unprotected. He also said
that he told Davis that the strike was "against the
union and not against the company." Davis. however,
stated at the hearing that Sears told him only that he
had been terminated for "union activities" by Auto-
mobile Carriers, and did not say that he had lost his
job of taking part in an unprotected strike of any
sort.5
Shortly thereafter, having learned from Sears of the
opportunity, Schweigert also interviewed with Davis
for a job. Schweigert testified that he told Davisthat
the strike which cost him his job grew out of em-
ployee dissatisfaction with the union rather than with
the employers. Specifically, Schweigert said that he
told Davis "we was unhappy with the new contract
and it had been voted down by the employees with a
large percentage but higher officials in the union still
put it into effect." Finally, Schweigert said that Davis
stated that his participation in the strike would not
make any difference in considering his employment
application.6 Davis, however, stated that he did not
discuss Schweigert's participation in the work stop-
page with him.7
Having been referred by Schweigert, Williams also
had an interview with Davis for a job as a truckdriver
on June 29. Williams' testimony was that he told Da-
vis the strike at Automobile Carriers stemmed from
employee unhappiness with the terms of a contract
negotiated by the union, and that the employers had
sought to force the men back to work by attempting
to secure a court injunction. Williams added that Da-
vis told him that participation in the strike would not
affect his employment with Respondent as long as he
kept his driving record clean and obeyed its rules and
regulations. On his written application for employ-
ment Williams entered "union activity" as the reason
for his discharge from his previous job, and Davis
made the notation "OK ROD" (the last three letters
are his initials) next to this answer. In response to a
4Sears was also discharged by Automobile Carriers, but Schweigert was
fired from his job at F. J. Boutell Driveway Company, another of the three
employers whose employees participated in the wildcat work stoppage
I Sears was hired, but Respondent discharged him a few months later for
mechanical abuse of company equipment.
ISchweigert stated on his application that he had been discharged for
"union activit\"
'Schweigert was not employed by Respondent
243 NLRB No. 171
1202
R-W SERVICE SYSI M, INC('
question on the application regarding whether he had
ever been arrested, Williams wrote "carrying a fire-
arm while intoxicated." Davis marked "7 or 8 yrs ago
ROD" next to this statement. Davis denied discussing
with Williams the reason for his discharge from Auto-
mobile Carriers.
As terminal manager Davis did not have the au-
thority to hire Williams. It was therefore arranged for
Williams to have an interview that next day with Jose
Richard Coppens, Respondent's personnel manager.
in Taylor, Michigan. According to Williams, Coppens
inquired about his statement on the application that
he had been discharged for "union activity." Wil-
liams said that he told Coppens that the strike was
directed against the union specifically "because of the
contract that was up for negotiation" rather than
against the company, that he was looked upon as a
leader in the strike, and that there were pending Fed-
eral court suits concerning the strike. Williams con-
ceded, both at the hearing and in an affidavit given to
a Board agent before the hearing, that he did not tell
either Davis or Coppens that he had been discharged
for engaging in wildcat or unprotected activity. Wil-
liams stated that Coppens assured him that his having
engaged in the strike at Automobile Carriers would
not affect his employment with Respondent. Coppens
testified that he did not ask Williams about the indi-
cation on his application that he had been terminated
for "union activity" but questioned him only about
his statement that he had been arrested for carrying a
firearm while intoxicated.
Williams began work for Respondent on July 1.
According to Coppens, Respondent hires employees
for a 30-day probationary period, as prescribed in the
applicable collective-bargaining agreement, pending
investigation of their driving and past employment
records. On July I Respondent mailed a routine ques-
tionnaire to Automobile Carriers seeking information
concerning Williams' employment with that com-
pany. One question asked why the applicant had left
the company's employ, and Automobile Carriers
noted in response that Williams had been discharged
"for his particpation in wildcat strike." The employ-
ment reference from Automobile Carriers regarding
Williams was brought to the attention of Joseph Far-
hat, Respondent's vice president and general man-
ager. Farhat testified that he had been concerned
about Williams' statements on his application that he
had been discharged for "union activity" and arrested
for carrying a firearm while intoxicated, but that he
decided "not to pursue anything until we further in-
vestigated." Upon receiving information that Wil-
liams had been discharged for wildcat activity by his
previous employer, Farhat consulted his attorney and
decided to ask Automobile Carriers for confirmation
of that statement. Consequently. on July 14. Respon-
dent wrote a followup letter to that company. refer-
ring to the reason it had given tbr Williams' discharge
on the employment questionnaire and inquiring
whether Williams had been discharged for union ac-
tivities as he had indicated on his application. Auto-
mobile Carriers replied on Jul 16 that Williams had
been dismissed for engaging in a wildcat strike. Far-
hat said that he decided that Williams should be ter-
minated because of his involvement in wildcat ac-
tivity and because of his "propensity toward carrying
a firearm." Williams was discharged on July 22. 8
das beftore the end of his probationary period.
It is not disputed that Williams engaged in a strike
in violation of the governing collective-bargaining
agreement while employed at Automobile Carriers,
that such strike was unprotected. and that Williams
was lawfully discharged bh that company for his par-
ticipation in the strike. Yet our dissenting colleague
challenges the equally self-evident corollary of this
conclusion-that Respondent was entitled to refuse
to hire Williams for having engaged in an unprotect-
ed strike. Her position represents a major departure
from traditional labor law principles and thus must
not be allowed to pass without reply.
It has long been settled that. "The Act does not
interfere with the normal exercise of the right of the
employer to select its employees or to discharge
them." Of course, "[t]he employer may not, under
cover of that right, intimidate or coerce its employees
with respect to their self-organization and representa-
tion, and, on the other hand, the Board is not entitled
to make its authority a pretext for interference with
the right of discharge when that right is exercised for
other reasons than such intimidation and coercion. "'
A few years later this precept was reaffirmed in
Phelps Dodge Corporation v. i.L. R.B. , where, al-
though deciding that it was an unfair labor practice
to decline to hire an individual because of his union
activity, the Court pointedly declared that an em-
ployer "is as free to hire as he is to discharge employ-
ees." and that the statute "is directed solely against
the abuse of that right by interfering with the coun-
tervailing right of self-organization." More recently it
has commonly been said in words which apply as well
to hiring decisions that "a company may discharge an
employee for a good reason, a bad reason or indeed
for no reason at all" unless union or protected con-
certed activity motivates the discharge.'0
N.L.R.B. v Jones & Laughlin Steel Corp., 301 lS I. 45-46 (1937)
Accord: Associated Press v. N.L.R 8. 301 U.S. 103, 132 (1937) ("The act
does not compel the petitioner to emplo) anyone . .
9
313 U.S. 177. 186- 187 (1941).
1 . L R B . UL'ted Parcel Seri-c., Inc. 317 F.2d 912.914 Ist (Cr. 1965)
Accord: NL R B v. T A4 McGahev. S,. e al. 233 F2d 406. 413 (5th Cir
1956)
1203
I)E( ISIONS ()F NA IONAL ABOR RE.AI()ONS BOARI)
These cases remind us that the Board was not char-
tered by Congress to right every perceived industrial
wrong or to sit in judgment upon an employer's usual
exercise of basic management perogatives to hire and
fire. Rather, only where a company trenches upon
rights safeguarded by Section 7 of the Act is the
Board empowered to reverse an employer's personnel
actions. Thus, we need not address our dissenting col-
leagues' accusation that we "see nothing unjust" in
the failure of many employers to hire Williams be-
cause of his background as a wildcat striker. The is-
sue is not whether a refusal to hire is equitable but
whether it is lawful. We turn to that.
Anthony Williams and his coworkers at Automo-
bile Carriers struck Automobile Carriers in 1976 in
defiance of their contractual agreement not to do so.
The dissent admits that Williams was discharged for
cause and that Automobile Carriers did not have any
legal obligation to rehire Williams yet concludes that
the statute compels a subsequent employer to hire an
employee who has been discharged by another com-
pany for good cause and who is ineligible for future
service with that company.
Our dissenting colleague asserts that Respondent
must "view" Williams' participation in a wildcat
strike as protected and may not "use the unautho-
rized character of the strike" to refuse to hire Wil-
liams. But this reasoning rests on the incorrect as-
sumption that there is general right to strike which
exists independently of, and is separable from, the
circumstances in which it is exercised: no strike is
automatically protected or unprotected apart from
the context in which it occurs. Some strikes are pro-
tected by the Act, others are not. The strike engaged
in by Williams was unprotected ab initio, because it
was in breach of contract. It is not germane to say, as
our dissenting colleagues does, that "in other circum-
stances" it would have been protected. The point is
that Williams and his fellow wildcatters had abso-
lutely no right to strike at the time yet they did so.
Contrary to the dissent, Respondent did not seek to
avail itself of the no-strike clause negotiated by Auto-
mobile Carriers in its contract. Respondent had a no-
strike provision in its own collective-bargaining
agreement. Respondent simply decided that it did not
want to employ an individual who had shown no re-
spect for the obligations imposed by such a clause in
the past. As Joseph Farhat, Respondent's vice pres-
ident and general manager, explained:
A trucking company is a very service oriented
operation. If we do not provide service we have a
good chance of losing an account .... We are
very concerned about the employee that might
disrupt this service because it could involve our
losing accounts ....
If I think that a person's application indicates
that he would cause a disruption in our company
I don't want to hire him. I would not sa that he
is qualified to be employed by us.
We have a very well defined grievance proce-
dure and the only way we can operate the com-
pany [ - j we have over five hundred drivers [ ]
... is for an orderly disciplined group of people
to follow the union contract. If a man decides to
take matters into his own hands and go off in
every direction it could cause a real problem. It
is very difficult to control five hundred men. So
you obviously put in rules and expect the men to
obey the rules and the union contract just like
any other organization . .. there has to be a cer-
tain amount of' discipline. Where that breaks
down we have a definite problem.
. . I just thought Mr. Williams might be the
type that might make a problem for us.
In Bechtel Corporation" the employer refused to
hire an applicant, Ojala, because he had incited a
wildcat strike among its employees when he had been
turned down for a job there a few weeks earlier. The
Board ruled that, "Respondent had the right to refuse
employment to Ojala if he had instigated a strike in
violation of a no-strike clause: such conduct is not
protected concerted activity. As the Respondent's as-
serted reason for refusing to hire Ojala was this un-
protected concerted activity. it was the General
Counsel's burden to establish either that the activity
was protected or that Ojala did not in fact engage
therein."' 2 As the General Counsel had not met this
burden, the Board dismissed the complaint alleging
that the refusal to hire violated the Act. The Bechtel
holding directly controls the instant facts on this
point: there is nothing in Bechtel to suggest a different
result should be reached where the unprotected con-
certed activity took place at another employer. Re-
spondent thus had the right not to hire Williams be-
cause of his involvement in a wildcat strike.
However, the General Counsel asserts, as indicated
at the outset, that Respondent hired Williams with
full knowledge that Williams had been terminated by
Automobile Carriers for engaging in unprotected ac-
tivity, had thereby condoned it, and thus violated the
11 170 NLRB 1128 (1968).
12 Id. at 1129. Behlel also answers our dissenting colleague's inapposite
citation of The .4. S Abell Company. 234 NLRB 802 (1978). enforcement
denied 598 F.2d 876 (4th Cir. 1979). The Board there decided that an em-
ployer could not lawfully refuse to hire individuals who had participated in a
strike marked bh violence where there was no evidence hat the applicants
themselves had engaged in such unprotected conduct during the course ot
the strike.
1204
R W S RVICE SYSTEM. IN('
Act by discharging him later for that reason. The
Board, in cases in which an employer permits em-
ployees to return to work after they have engaged in
unprotected activity, has found subsequent discipline
or discharge of those employers for their unprotected
conduct to be unlawful on the ground that the em-
ployer "condoned" their participation in the activit'
by reinstating them." The General Counsel argues
here that this theory of condonation should he ap-
plied to situations in which an employer knowingly
hires an individual who has taken part in unprotected
conduct while employed at a previous employer but
nonetheless later fires the employees for having en-
gaged in the unprotected activity. However, we are
not called on to decide that question in the instant
case because the record shows clearly that Respon-
dent was not apprised of Williams' participation in an
unprotected strike at Automobile Carriers at the time
it hired him on a probationary basis. Respondent
therefore did not commit an unfair labor practice b
discharging Williams upon learning of his past unpro-
tected conduct. In other words, the General ('ounsel's
legal theory need not be considered inasmuch as it
lacks the proper factual predicate.
To begin with, Respondent hired Williams only as
a 30-day probationary employee, pending further in-
vestigation of his employment application, and he
therefore never attained regular employee status at
the Company. In any event, Williams admitted at the
hearing as well as in a prehearing affidavit that he did
not disclose to either Davis or Coppens that he had
been dismissed by Automobile Carriers for engaging
in a wildcat or unprotected strike. On his employment
application Williams stated only that he had been dis-
charged for "union activity." By his account, Wil-
liams told Davis that the strike at Automobile Carri-
ers resulted from employee dissatisfaction with the
terms of a contract negotiated by the union, and that
the employers had sought a court injunction to get
the strikers back to work. Williams said that he told
Coppens the strike was against the union, not the
company, and resulted from the contract being "up
for negotiations." None of these statements indicates
that the strikes was in breach of a no-strike clause
which the employees were bound to observe. Specifi-
cally, the fact that the strike was against the union
and stemmed from employee unhappiness with con-
tract negotiations and the company sought an inJunc-
tion to force the strikers back to work does not neces-
sarily mean that the strike was, or had been found to
be, unprotected, as a violation of a governing collec-
tive-bargaining agreement.
' Se, e.g., Alabaima Marble Compan, 83 NlRB 1047 (1949). enfd. 185
F.2d 1022 (Sth Cir. 1951): Branth, Helicopter Corporation. 135 NLRB 1412
(1962): Poloron Products of Indianau. Inc, 177 NI.RB 435 11969)
Neither do the statements concerning the strike
made to Davis hb Sears and Sch. cligcrt rescal that it
was unprotected. The most Sears testified to as that
he informed Davis that the strikers took the position
that the strike was protected. hile the struck em-
ployers contended that i; was not protected. Neither
this remark nor Sears' alleged statement to I )ax is that
the strike Uwas against the union rather than the cm-
palny is eidence that the strike ,bas. or had heen
found to be. unprote.:ed as being in hbreach of con-
tract. Schweigert testified similarly. cexept that he
said he told Davis that the strike was caused b'x ultionm
officials putting into effect a contract ,which did not
please the rank and tile. Even this. hoAcxeli doe. not
mean that at the time of the strike a coiltract contain-
ing a clause prohibiting the strike usas in force.
Furthermore, Respondent's conduct ollowing the
hiring oft Williams as a temporar, emplo, ee is consis-
tent with lack of awareness that Williams had en-
gaged in unprotected activit\y hile eplo\cl at Au-
tomobile Carriers. Respondent matile its r umtinte
employment questionnaire to Automobile ('arricr-e on
July I the same day Williams started ork. When
Respondent received the completed form conitUiiing
the intformation that Williams had been discharged
for engaging in wildcat activit, it did not accept it at
face value. Instead. Respondent wrote Automobile
Carriers immediately and sought confir;mation that
Williams had actually been discharged tr uil ldcat as
opposed to "union activity." Onl wshen Respondent
was assured bh Automobile Carriers of the reason for
Williams' discharge did it terminate Williams. In this
regard Respondent separated Williams from its ser-
vice well within his probationar\ period and did so
promptly upon receiving the second commutnication
from his previous employer.
To sum up, it is not too much to sas that the record
contains not a shred of evidence to support the (jen-
eral Counsel's contention that Respondent was tfulls
aware of Williams' participation in unprotected ac-
tivitv at Automobile Carriers when it hired him on a
tentative basis. Indeed. the record quite conclusivel
demonstrates that Respondent had no knou ledge
that Williams had engaged in an unprotected strike
when it employed him pending further investigation
of his employment application. he complaint must
therefore be dismissed.
ORDER
Pursuant to Section 10(c) of the National I ahor
Relations Act, as amended. the National l.abor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereb or-
ders that the complaint be, and it herebh is. dismissed
in its entiret!.
1 20S
CI).(ISIONS ()F NAIIONAI. L.ABOR REI.ATIONS B()OAR)
M I t111 R MURI'IiY, concurring in part, dissenting in
part:
I strongly disagree with my colleagues' assertion
that Respondent was lawfully entitled to refuse to
hire Williams for having taken part in a wildcat
strike, and had the case been litigated on the theory
that Respondent was not so entitled I would have
found Respondent's termination of Williams violative
of Section 8(a)( I ) of the Act.
However, I concur with my colleagues' conclusion
that Respondent did not violate Section 8(a)( I) of the
Act by discharging Anthony Williams upon learning
of his participation in an unauthorized strike against
his previous employer but only because the case was
litigated solely on the theory that Respondent con-
doned Williams' conduct, and no such condonation
was proven.
On June 8, 1976, Williams participated in a strike
in violation of the no-strike clause in the agreement
between Williams' collective-bargaining representa-
tive and his employer. Williams was lawfully dis-
charged for this activity. Respondent is the 13th em-
ployer in the course of I year to refuse Williams
employment upon learning that he had engaged in a
wildcat strike. My colleagues see nothing unjust in
this chain of refusals. In their view, employers now
and in the future may eternally deny Williams em-
ployment because he once participated in a strike in
violation of a no-strike cause. This result is com-
pelled, they say, because Williams' activity was un-
protected, and thus employers' refusals to hire him do
not interfere with the exercise of a protected right.
This position contravenes the fundamental policies of
the Act by allowing an employee to be forever barred
from employment on the basis of' an act which, al-
though normally protected by statute, was unprotect-
ed in the instant case solely because of a no-strike
clause. Indeed, my colleagues grant more to the single
act of participation in a wildcat strike than the law
grants to the past crimes of a convicted felon. 4 I can-
not share their narrow and mechanical view of the
Act.
The right to strike has long been included among
the rights guaranteed by Section 7 of the Act.' 5 This
right is specifically acknowledged in Section 13 of the
Act which states:
" Thus, the Federal Rules of Evidence allow. for the purpose of impeach-
ment, admission of evidence that the witness has been convicted of a crime
only if the cnme is punishable by death or imprisonment in excess of I year
or involves dishonesty or a false statement regardless of the punishment. See
Federal Rules of Evidence 609(a). Further, such evidence is not normally
admissible if a period of more than 10 years has elapsed since the date of
conviction or the release of the witness from confinement imposed for the
conviction whichever date is later. See Fed. R. Evid. Rule 609(b).
"'See. for example, N.L.RB. v. Erie Resistor Corp.. et al., 373 U.S. 221
(1963).
Nothing in this Act, except as specificall y pro-
vided for herein, shall be construed so as either
to interfere with or impede or diminish in any
way the right to strike, or to affect limitations or
qualifications on that right.
Thus, in other circumstances the activity engaged in
by Williams would clearly have been protected.16
Here, however, the union and Williams' former em-
ployer entered into an agreement containing a no-
strike clause which constituted a contractual waiver
of the statutory right to strike. It is undisputed that
this waiver took Williams' participation in the strike
outside of the protection of the Act. Further, it is
undisputed that the struck employer had the right to
terminate and to refuse to rehire Williams for the rea-
sons set forth below. The issue in dispute is whether a
nonstruck employer. not a party to the contract con-
taining the no-strike clause, may use the employees'
violation of the clause as a lawful ground for refusing
to hire the employee. I find that the Act prohibits a
nonstruck employer from so doing.
It is well settled that the statutory right to strike
may be waived by contractual agreement.'7 However,
it is equally well settled that such waivers are not be
readily inferred and must be shown by "clear and
unmistakable language."' 8 In applying these princi-
ples the Board has repeatedly construed no-strike
clauses very narrowly.
In Keller-Crescent Cornmpan, a Division of Moler,19
the Board was presented with the issue of whether a
sympathy strike was prohibited by the no-strike
clause in the contract between the International Ty-
pographical Union (ITU), and Keller-Cresent. While
the contract contained a general no-strike clause, it
also contained a provision in section 12 that no em-
ployee covered by the contract would be required to
cross a picket line established by any other subordi-
nate union of ITU. The strike at issue in the case was
in sympathy with a union which was not a subordi-
nate of ITU. The Administrative Law Judge found
that section 12 implied a waiver of the right to honor
a picket line established by any union other than the
ITU, and that the strike was, therefore, in violation of
the contract. The Board rejected this analysis on the
ground that section 12 contained no express waiver of
the right to honor other unions' picket lines, and that
if any inference were to be drawn from the section it
"
5
Cf. Suburban Transit Corp, 218 NLRB 1228 (1975).
m Mastro Plastics Corp, et al. and French-American Reeds Mfg. Co., Inc.]
v. N. LR.B., 350 U.S. 270 (1956):; NL.R B. v. Rockasuy News Supply Com-
pany, Inc., 345 U.S. 71 (1953).
18 Gary-Hobart Water Corporation. 210 NLRB 742 (1974), enfd. 511 F.2d
284 (71h Cir. 1975). Montana-Dakota Utilities Co., 189 NLRB 879. (1971)
enforcement denied 455 F.2d 1088 (8th Cir 1972)., Kellogg Company. 189
NLRB 948 (11971), enfd. 457 F.2d 519 (6th Cir. 1972).
'9217 NLRB 685 (1975).
1206
R-W SERVICE SYSTEM, INC.
should be an intent to "memorialize in the contract
the statutory right, not to limit it."20
Similarly, the Board has narrowed the application
of no-strike contract provisions to only those disputes
concerning subjects covered by the grievance-arbitra-
tion procedure.2 In Garn-Hobart, supra, the Board
found that a sympathy strike was not prohibited by
the no-strike clause in the contract between Gary-
Hobart and the union because the strike was for the
purpose of providing mutual aid and protection to
employees involved in a dispute which was not cov-
ered by the Gary-Hobart contract. In so finding the
Board referred to the following statement by the
United States Supreme Court regarding the scope of
an arbitration provision:22
No obligation to arbitrate a labor dispute
arises solely by operation of law. The law com-
pels a party to submit his grievance to arbitra-
tion only if he has contracted to do so.
Further, the Board and the Court have insisted
upon a narrow construction of a no-strike provision
where the strike in dispute was against the unfair la-
bor practices of the employer. Thus, in Mastro Plas-
tics, supra, the Court refused to find an unfair labor
practice strike to be in violation of a contract provi-
sion which stated: "The Union further agrees to re-
frain from engaging in any strike or work stoppage
during the term of this agreement."23 While the Court
conceded that the clause, standing alone, could be
read to include strikes of all kinds, the Court empha-
sized that the clause must be viewed in the context of
the full contract and the Act's policy of fostering the
collective-bargaining process. The Court determined
that, so viewed, the clause could not be interpreted to
waive the right to strike against unlawful practices
destructive of the collective-bargaining process. In so
holding the Court stated:
We believe that the contract, taken as a whole,
deals solely with the economic relationship be-
tween the employers and their employees.... Its
strike and lockout clauses are natural adjuncts of
an operating policy aimed at avoiding interrup-
tions of production prompted by efforts to
change existing economic relationships. [350
U.S. at 281-282].
As demonstrated by the foregoing, the Board and
the Court's approach to no-strike clauses is the result
of an accommodation of two major policies of the
Id at 688.
I1 Gary-Hobart Water Corporation, supra. Montana-Dakota Utilities Co.
surpa; Kellogg Company, supra
22 Gateway Coal Co v. United Mineworkers ofAmerica, etr al., 410 U.S. 953.
fn. 13 (1973).
D Mastro Plastics Corp., supra, 350 U.S. at 281
Act. i.e., to guarantee the right of employees to take
concerted action and to replace economic wartare
with collective-bargaining. Indeed. tile ('Court has re-
ferred to the no-strike clause itself as an accomoda-
tion of these policies. It has stated that the union mayr
"waive the right to strike during the time of the agree-
ment as the quid pro quo for the employer's accept-
ance of the grievance and arbitration procedure."2 4
Expressed another way, the ability to strike is consid-
ered to be such a fundamental statutorily protected
right that a party will not be found to have waived it
without having extracted a comparable important
waiver from the employer, e.g.. a waiver of the em-
ployer's right to discharge an employee summaril'
without cause.
These principles apply with equal tforce to the in-
stant case. Here Williams engaged in a strike which.
standing alone, in unquestionably protected h the
Act. His activity is not comparable to picket line io-
lence. insubordination, or other types of conduct
which never enjoy statutory protection. Rather. the
original protection afforded Williams' activity was
waived by his collective-bargaining representative as
a quid pro quo for the employer's acceptance of the
grievance-arbitration procedure.25 The activity lost
the benefit of the Act's protection solely because of a
contractual agreement between two parties. Accord-
ingly. the waiver of the statutory right to strike is
effective only between the parties ho struck the
agreement containing the waiver. 2 6 An employer not
a party to such agreement cannot claim the waiver as
24 LR.B. v. tagnavov C'ompan of Tennessee. 415 U.S 322 (I1974
21 Ironically. Williams might have fared better with mv colleagues i he
had participated in a violent strike rather than a peaceful wildcat strike In
A S. Abell Compan,y. supra. a Board panel of Chairman Fanning and Menm-
hers Jenkins and Penello adopted without comment the Administratlie I.sa
Judge's conclusion that respondent violated Sec. 8(a}(3) of the Act hb retuI-
ing to hire members of a striking local union because unidentified meimber,
of the local engaged in violence and property damage at another emplher',
facility. The Administrative Law Judge found that respondent' desire to
avoid possible misconduct at its facility was an insufficient ground lor the
refusal to hire; instead, respondent had the burden of establishing a good-
faith belief that the refused employees had participated in. authorized. or
ratified the misconduct. See also The Newark Morning Ledger (' dha
Newark Star Ledger. 232 NLRB 581 1977). Thus, my colleagues will not
permit an employer to refuse to hire an employee on the ground ithat he
participated in a strike marked hb violence against a different emploser. et
they will permit an employer to refuse an employee because he participated
in a peaceful strike which would hase been lawful but for a no-strike lause
contained In a contract with a different employer.
26 In this regard the Board's decision n Bechtel Corporation, 171 Nl RB
1128 11968). is not controlling. despite the majority's assertin to the con-
trary) There the Board found that the employer lawfulls refused to hire an
employee because the employee had instigated a strike in iolation .. thie n.-
strike clause in the agreement between the emploser and the union In con-
trast to the instant case, the employer in Bechtel relied on the iolation ot its
own no-strike clause rather than that of another employer as the ground lor
its refusal to hire Thus, there is nothing in Bechtel to suggest that . ditterenll
result should not be reached where the unprotected concerted a.llctil took
place at another employer My colleagues on the majorits apparentlI are
unable to comprehend the difference between contralctual henefits to th
contracting parties thenmseles and the attempt hb a third parts t) LwsiLrp sut111
benefits for itself
1207
DECISIONS OF NATIONAL LABOR REL.ATIONS BOARD
a lawful ground for refusing to hire an employee who
participated in a strike. The stanger employer has
given up nothing in exchange for the benefit of being
free from strikes; it has made no bargain which justi-
fies the waiver of a statutory right. Just as a no-strike
clause may not be applied to disputes foreign to the
economic relationship between the contracting par-
ties, so such a clause may not be relied on by an
employer foreign to the relationship from which the
clause arose.
Contrary to the majority's assertion, this conclu-
sion does not rest on an assumption that there is a
general right to strike which exists independently of
the circumstances in which it is exercised. Rather, it
rests on the particular circumstances of this case, i.e..,
the presence of a contractual waiver of the statutory
right to strike which is relied on by an employer not a
party to the agreement containing the waiver. The
majority simply fails altogether to address this point
and instead falls back on broad statements regarding
the general rights of employers.
Further, my position in this case, far from being a
"major departure from traditional labor law princi-
ples" as the majority contends, is clearly supported by
the policies embodied in the Act. As discussed above,
the employees' right to engage in concerted activity is
fundamental to the Act; any waiver of a right of such
magnitude must be unmistakably expressed and nar-
rowly construed. It is therefore unthinkable that the
exercise of a fundamental statutory right in violation
of a limited contractual waiver of the right may for-
ever bar an employee from employment.
Nor can such a bar from employment be justified
as furthering the Act's policy of deterring economic
warfare through collective bargaining. The stranger
employer is always free to bargain for its own waiver
of the right to strike and thereby gain the ability to
lawfully discharge any employee who acts contrary to
the waiver. Indeed, as the majority points out, Re-
spondent has its own no-strike clause and could easily
have discharged Williams if he had participated in a
strike in violation of Respondent's clause.
For these reasons I would find that the contractual
waiver of the right to strike is operative only within
the economic relationship which gave rise to the con-
tract containing the waiver. Thus, only the contract-
ing employer may view the employee's activity as un-
protected. Noncontracting employers, not enjoying
the benefits of a no-strike clause, must view the em-
ployee's action merely as an exercise of the right to
strike and may not use the unauthorized character of
the strike as a ground for refusal to hire the employee.
In addition, I am constrained to note that as a re-
sult of the majority holding in this case employers will
be free to interrogate applicants for employment
about whether they ever participated in an unprotect-
ed strike at any time in the past, and blacklisting of
persons who ever did engage in such unprotected ac-
tivity will be legalized.
SUPPLEMENTAL DECISION
Lowll GoaRI i(t. Administrative Law Judge: The
within case was remanded to me by the National Labor
Relations Board (238 NLRB 1016). In the remand it was
related that I had not complied with either Section
102.45(a) of the Board's Rules and Regulations. Series 8. as
amended, or Section 557(c) of the Administrative Proce-
dure Act. As noted in my Decision, the General C('ounsel
conceded that Anthony M. Williams' participation in a
"wildcat" strike' against a former employer would have
been a lawful excuse for Respondent's refusal to hire him
and also a circumstance upon which Respondent could
have legally relied as a basis for his discharge. While I do
not necessarily agree with the General Counsel's concept of
the law in this respect, since the General Counsel seemingly
has established a list somewhat in the nature of a "black
list," which can bar an employee from future employment
firever with any employer who does not want to employ an
employee who has engaged in a "wildcat" strike, neverthe-
less, I considered myself bound by the General Counsel's
concession and his interpretation of the scope of his com-
plaint.2
Thus Respondent, having hired a person it could have
legally refused to hire and having discharged a person it
could have legally discharged for the reason assigned. the
General Counsel sought to save the employee's job by
claiming that the Employer had condoned the offense by
hiring the person with knowledge of his "wildcat" unpro-
tected activity. Hence, the issue is one principally of knowl-
edge. On this issue the burden was with the General Coun-
sel to prove a condonation by a preponderance of the
evidence and a wrongful discharge by a preponderance of
all the evidence. As the trier of fact. it devolved upon me to
weigh the General Counsel's material evidence against the
material evidence offered by Respondent. This I did, and I
found that the General Counsel had not sustained the bur-
den cast upon him, which meant, of course, that he had not
proved knowledge. Because of such finding of fact I dis-
missed the complaint, all of which seems to satisfy the stat-
ute's directive: "If upon the preponderance of the testi-
mony taken the Board shall not be of the opinion that the
person named in the complaint has engaged in or is engag-
ing in any such unfair labor practice, then the Board shall
state its findings of fact and shall issue an order dismissing
the said complaint" (Sec. 10(c) of the Act).
The Board has ordered me to "prepare and serve on the
parties a Supplemental Decision, setting forth the resolu-
I On June 25. 1976, Williams' employment with Automobile Carriers. Inc..
was terminated because of his participation in an unauthorized work stop-
page In all. 21 men were fired by three companies as a result of a strike
against the union. Unfair labor practice charges filed were dismissed with the
finding that the concerted activity was unauthorized and, thus, unprotected
by the National Labor Relations Act.
2 In Pseeki ir,-rafi Corporation, 123 NLRB 348. 366 (1959). it was slated
"It is the G(eneral Counsel who determines the scope of the complaint . . .
1208
R-W SERVICE SYSTEM. INC.
tion of material credibility issues, and findings and conclu-
sions with respect to the unfair labor practices alleged in the
complaint."
Resolution of Material Credibility Issues and Findings
and Conclusions With Respect to Unfair Labor Practices
Alleged in the Complaint
On Anthony M. Williams' original application for em-
ployment with Respondent. dated June 29, 1977. appear
the words "Union Activity" followed by "OK R O D." The
words "Union Activity" were in explanation as to whN Wil-
liams had been discharged by a former employer. The ini-
tials "R O D" again appeared under "reason for leaving"
where Williams had recorded the name of Automobile Car-
riers. Inc., on the application under the section captioned
"Work Record."3
The initials "R O D" stand for and were placed on the
application by Richard O. Davis, the Employer's terminal
manager at Saginaw, Michigan. Davis, prior to the hiring of
Williams. had been in search of truckdrivers to staff the
Saginaw terminal.
In this pursuit, he had given Donald Sears several applica-
tions. Sears was I of the 21 strikers mentioned in the above
footnote. At the time Sears was driving a truck for T. R.
Moen, in which truck Davis had an interest. Sears had told
Davis that he had been fired by Auto Carriers for strike
activity. He said. "We was on strike against the union and
not against the company but the only way we could make
our presence known is to withhold our services from the
company. I told him that we was contending that it was a
protected activity, and the company and the union was con-
tending that it was unprotected activity." Sears also men-
tioned that the matter was pending before the Board and
the courts.'
Upon the suggestion of Davis. Sears gave the job applica-
tions mentioned above to some of the 21 strikers whom
Davis seemed anxious to solicit. Among those solicited by
Sears was George Schweigert, whom Sears brought to Da-
vis and introduced as one of the strikers. Schweigert told
Davis that he was "discharged in a labor dispute," that the
"strike was not against the employer but it was against the
union." He asked Davis whether the discharge would
"make any difference" and Davis answered "it wouldn't
make any difference." Schweigert lodged an application
with the information on it that he had been discharged in
connection with union activity. Schweigert also informed
Davis that the employees were "unhappy with the new con-
tract and it had been voted down by the employees with a
large percentage but higher officials in the union still put it
into effect." Thereafter. Davis called Schweigert for em-
ployment. However. Schweigert suggested that he send Wil-
3 Williams and 20 other employees had been discharged h their arious
employers for engaging in a stnke which was aimed at dissatisfaction with
the union but which was allegedl in violation of the contract. About 600
strikers were involved. The General Counsel concedes that Williams by
striking against his employer. Automobile Carriers. Inc. engaged In unpro-
tected action.
'Davis testified that Sears said that "'hey had been discharged for union
activity and they had gotten the shaft from the union. Theo were er? very
bitter toward the union."
liams to him instead. Williams appeared for employment
on June 29. 1977. Davis furnished him with an application
for employment which he completed. While filling out the
application. Williams related to Davis what his participa-
tion was in the strike and the facts surrounding his dis-
charge from Automobile Carriers. Inc., which information
was substantially the saem as had been related hb Sears and
Schweigert. Davis placed his initials on the application in
the space provided for stating the reason for leas ing Auto-
mobile Carriers. Inc.. explaining to Williams, "leave that
portion blank because he fully understood what had tran-
spired and there was no need for IWilliams] to put dis-
charge there. He would take care of it." In addition. Davis
entered on the application "OK R O D" after "union ac-
tivit," 7 or 8 years ago R O D" after the reason br an
arrest "carrying a firearm while intoxicated." and "[)river
thinks both has been over 5 years. R O D" after certain
entries under motor vehicle violations. Charles Thomas
l.ampley. who owned the tractor to which Williams was
later assigned, was present.' Both [.ample and Davis ap-
peared anxious to process Williams' application. In any
event, it was arranged for Williams and Lampley to appear
the next morning at the Talor terminal with the applica-
tion.
On the morning of June 30. 1977. Williams went to Tay-
lor and asked for Jose Richard Coppens. Respondent's per-
sonnel manager. Williams was handed certain tests which
he completed and returned to the "girl in the window."
After attending an orientation meeting Williams was inter-
viewed by Coppens. Coppens asked him why he had put
union activity on his application. Williams explained what
had occurred: that the strike was directed against the
union, rather than the compan., and that the company
looked upon him as a leader in the strike. Williams also
explained his arrest for carry ing a weapon while intoxi-
cated. which Coppens considered a satisfactory explana-
tion. The next da! Williams was given a physical examina-
tion and on Jul I was put to work b Coppens.
In the meantime, according to Coppens, he carried Wil-
liams' application together with eight others to Joseph Far-
Lampleys, affida it reseals that he overheard Wiliams sa! "a group of
them had gone out on strike against the Utnion and the ssouldn't be going
back to work until thev went (to court to decide who was right and who v as
wrong."
The following appears in Williams' affidas it
He asked me what had happened. wh I was discharged and I said that
there was a demonstration against the tnion. that eversone particl-
pated in it, and that out of all the employees they selected 21 to) dis-
charge and I was one of them.
I did not tell anyone at R-W that the strike at Auto Carriers was a
violation of the contract because I didn't think it had been I did not tell
anyone that it had been an unprotected strike or had found to be such
and no one gave [me anal ndication that thes understood that that was
the case.
Coppens testified that he noted the words "t nlon acti' i in the applica-
iion but avoided the subject. "He?. I don't want to) knots nothing a.i,ut it
because it doesn't affect us" he allegedls said I[ \ iliams (oppen, was oI
the opinion that an applicant's "union activitl" could n he considered n
hiring Presliousl,. Respondent, Coppens in particular. hd been charged
with refusing to hire an ind, idual because a,1 his prior union actit its
The testimonles of hboth Williams and (Coppens seem, reasonable to me
under the circumstances However. having weighed the matter caretlull I
am unable to resolse ans difference, in tesllmlniles based upon demeanor
1209
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hat, vice president and general manager, and mentioned the
"union activity" and "intoxication with firearms." He re-
ported to Farhat that he was "satisfied with the firearms
bit," and that he had put Williams "on temporary basis."
Farhat said that when he reviewed the application that he
was concerned about Williams' carrying a firearm while in-
toxicated and about his union activities, but he "chose at
that time not to pursue anything until we further investi-
gated."
About 8 or 10 days after Williams' employment, Coppens
received a reference check from Automobile Carriers, Inc.,
which noted that Williams had been "discharged for his]
participation in a wildcat strike." Coppens carried the refer-
ence check to Farhat observing that this was not "the type
of individual we wanted within the company." Upon the
advice of an attorney, Farhat wrote to Automobile Carri-
ers, Inc., for additional information. The reply, dated July
16, 1977, indicated that Williams "was discharged for his
participation in a Wildcat Strike at Automobile Carriers,
Inc." On July 22, 1977, Farhat sent a memorandum to Cop-
pens directing him to discharge Williams for "falsification
of application" in that Williams had not revealed on the
application that he was discharged for participating in a
wildcat strike. Carrying firearms while intoxicated was re-
considered "in a new light."
Williams was discharged.
My conclusion is that the General Counsel has not
proved condonation by a preponderance of the evidence
and has not proved Williams' discharge to have been un-
lawful by a preponderance of all the evidence in that the
General Counsel has not proved by preponderance of the
evidence that, at the time of Williams' hiring, Respondent
had knowledge of Williams' conceded unprotected "wild-
cat" activities. 7
Accordingly, it is recommended that the Board issue the
following:
ORDERs
It is hereby ordered that the complaint be, and it hereby
is, dismissed in its entirety.
I Had the General Counsel not made the concession above noted, I would
have found for the General Counsel since it is my opinion that it is "discrimi-
nation in regard to hire or tenure of employment" and inherently discour-
ages and chills membership in a labor organization (see Sec. 8(aX3) of the
Act) for a stranger employer to refuse to hire (blacklist) a wildcat striker who
participated in a strike against the union rather than the employer. While
"wildcatting" between an employer and his employees may partake of spe-
cial significance since the Act seeks to "eliminate the causes of certain ob-
structions to free flow of commerce," and preserve industrial peace, it is of
less concern to a stranger employer. This "less concern" or "business justifi-
cation" does not outweigh the right of employees to work free of the coercive
effect on their participation in union activities by the refusal to hire or the
discharge of a "wildcat" striker by a stranger employer. In fact, many em-
ployers return their own wildcat strikers to employment. Indeed, this was
done at Automobile Carriers, Inc., for only 21 out of around 600 strikers
were dismissed. As to these 21, they well could have been the beneficiaries of
the Board's decision in Precision Castings Company, Division of Aurora Cor-
poration, a wholly owned subsidiary of Allied Products Corporation, 233 NLRB
183 (1977).
s In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
1210