Strick Corp.

National Labor Relations Board - Board Decisions

Mar 19, 1979

241 N.L.R.B. 210 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Strick Corporation and Gordon Maurer, John Horek,
Walter Anderson, and Louis S. Trapane
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America
and its Local 644 and Gordon Maurer, John Horek,
Walter Anderson, and Louis S. Trapane. Cases 4-
CA-8295-1, 4-CA-8295-2, 4-CA-8295-3, 4-CA-
8295-4, 4-CB-2950-1, 4-CB-2950-2, 4-CB-2950
3, and 4 CB-2950 4
March 19, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENEI.LO
On November 16, 1978, Administrative Law Judge
Joel A. Harmatz issued the attached Decision in this
proceeding. Thereafter, the Charging Parties and the
General Counsel filed exceptions and supporting
briefs, Respondent Employer and Respondent
Unions filed cross-exceptions and supporting briefs,
the Charging Parties filed answering briefs to the
cross-exceptions of Respondent Employer and Re-
spondent Unions, Respondent Employer and Re-
spondent Unions filed answering briefs to the excep-
tions of the Charging Parties and the General
Counsel, and the General Counsel filed an answering
brief to the cross-exceptions of Respondent Employer
and Respondent Unions.
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,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
While we agree with the Administrative Law
Judge's ultimate finding that Respondent Unions did
not violate their duty of fair representation, we regard
as irrelevant the fact that the Unions might have lost
the support of the then-working unit members if the
Unions had failed to accede to the Employer's de-
mand for a contract clause abrogating the arbitrator's
award giving rise to this controversy. The only issue
IThe Charging Parties have requested oral argument. This request is
hereby denied as the record, the exceptions, and the briefs adequately pre-
sent the issues and the positions of the parties.
In agreeing with the Administrative Law Judge that the instant proceed-
ing is not time-barred by Sec. 10(b) of the Act, we rely solely upon estab-
lished Board precedent holding that notice, whether actual or constructive,
must be clear and unequivocal, and that the burden of showing such notice
is on the party raising the affirmative defense of Sec. 10(b). AMCAR Divi-
sion, ACF Industries, Incorporated. 234 NLRB 1063 (1978).
presented herein is whether the Unions acted arbi-
trarily or in bad faith in acquiescing in the Employer's
demand for the clause. Given the particular circum-
stances herein, including the Employer's adamant de-
mand for the clause, the Employer's avowed intention
to "take a strike" if the Unions failed to agree to the
clause, the desire of the working employees and their
shop committee that the clause be included, and the
probable ineffectiveness of a strike in opposition to
the clause and the fact that resistance of the clause
further would delay implementation of the new con-
tract and its improved benefits thus resulting in detri-
ment to working employees, we conclude that the
Union was faced with a "Hobson's choice," and in
making its decision did not act arbitrarily or in bad
faith.
The record reveals that the Unions at all times ac-
tively pursued the rights of the discharged employees.
Thus, the Unions promptly filed and processed the
grievance giving rise to the arbitration award and
provided an attorney to argue before the arbitrator
on behalf of the dischargees. The Unions also paid
the dischargees' expenses related to the State of Penn-
sylvania's denial to them of unemployment compen-
sation, and, on appeal of that denial, provided them
with the services of its attorney.
As the Supreme Court stated in Humphrey v.
Moore, 375 U.S. 335, 349 (1964):
[W]e are not ready to find a breach of the collec-
tive bargaining agent's duty of fair representa-
tion in taking a good faith position contrary to
that of some individuals whom it represents nor
in supporting the position of one group of em-
ployees against that of an other .... "Inevitably
differences arise in the manner and degree to
which the terms of any negotiated agreement af-
fect individual employees and classes of employ-
ees. ... A wide range of reasonableness must be
allowed a statutory bargaining representative in
serving the unit it represents, subject always to
complete good faith and honesty of purpose in
the exercise of its discretion."2
On the basis of the foregoing, we find that, by ac-
quiescing in the Employer's demand, the Unions
"acted upon wholly relevant considerations, not upon
capricious or arbitrary factors,"3 and accordingly
have not breached their duty of fair representation.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
2 Citing Ford Motor Company v. Huffman, 345 U.S. 330, 338 (1953).
Humphrey v. Moore, supra at 340.
241 NLRB No. 27
210
STRICK CORPORATION
ders that the complaint be, and it hereby is, dismissed
in its entirety.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: This con-
solidated proceeding was heard in Wilkes-Barre, Pennsylva-
nia, on May 15, 16, and 17, 1978, upon an unfair labor
practice charge filed on October 29, 1976, and a consoli-
dated complaint issued on December 30, 1977.' The afore-
said consolidated complaint alleges that Respondent
Unions violated Section 8(b)(1)(A) and Section 8(b)(2) of
the Act by alleged restraint and coercion against partici-
pants in an authorized strike by joining with Respondent
Employer in a collective-bargaining agreement which abro-
gated remedies acquired by said strikers through arbitra-
tion. It is further alleged that Respondent Employer vio-
lated Section 8(a)(3) and (1) of the Act by its conduct in this
regard. In their duly filed answers, Respondent Unions and
Respondent Employer denied that any unfair labor prac-
tices were committed, and raised various affirmative de-
fenses. Following close of the hearing, briefs were filed on
behalf of the General Counsel, the Charging Parties, the
Respondent Unions and the Respondent Employer.2
Upon the entire record in this proceeding, including con-
sideration of the briefs filed on behalf of the parties, and
after close observation of the witnesses and their demeanor
while testifying, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent Employer is a Pennsylvania corporation en-
gaged in the manufacture of trailers for use by motor carri-
ers, with a facility located in Berwick, Pennsylvania, the
sole plant involved in this proceeding. During the 12-month
period preceding issuance of the complaint, Respondent
Employer in the course and conduct of its operations
shipped and sold products valued in excess of $50,000 di-
rectly to points located outside the Commonwealth of
Pennsylvania.
The complaint alleges, Respondent Employer's answer
admits, and I find that it is and has been at all times mate-
rial herein an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
1I. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, the answers admit, and I find that
Respondent International Union, United Automobile,
Aerospace and Agricultural Implement Workers of Amer-
ica, and its constituent, Respondent Local 644, are, and
have been at all times material herein, labor organizations
within the meaning of Section 2(5) of the Act.
I In accord with a request by the General Counsel, official notice is taken
that the charges initiating this proceeding were initially dismissed and that
the complaint which ultimately issued was pursuant to an appeal by the
Charging Parties to the General Counsel in Washington, D.C.
2 Following expiration of the date for the submission of briefs, counsel for
the Respondent Employer requested leave to file an answering brief. Said
request is hereby denied; the document has not been considered.
A. The Issues and Positions of the Parties
This proceeding involves a challenge to certain terms in a
collective-bargaining agreement executed by Respondents
in 1976. Prior thereto, Respondent Employer had dis-
charged about 200 employees by reason of their participa-
tion in an unprotected strike. The discharges were grieved
and an arbitration award resulted, authorizing preferential
hiring and retroactive seniority for the strikers. Subse-
quently, negotiations leading to the aforesaid bargaining
agreement opened, with Respondent Employer insisting
throughout upon a provision nullifying the arbitrator's rem-
edy as a condition for any new contract. Late in the nego-
tiations, the Respondent Unions assented to that proposal.
The complaint herein challenges the agreement reached as
an unlawful deprivation of rights acquired in arbitration by
the discharged strikers.
As for the positions of the parties, first with respect to
Respondent Unions the allegations of 8(bXIl)(A) and
8(b)(2) violations are predicated upon an asserted breach of
the duty of fair representation. See Vaca v. Sipes, 386 U.S.
171, 177 (1967); Miranda Fuel Company, Inc., 140 NLRB
181 (1962), enforcement denied 326 F.2d 172 (2d Cir. 1963).
The General Counsel contends that the Unions' assent to
abrogation of the arbitration award sacrificed the rights of
the strikers for the benefit of actively employed replace-
ments and that this was done arbitrarily to avoid a decerti-
fication challenge to the Unions' representative status. It is
asserted that Respondent Unions' acceptance of the Em-
ployer's proposal, so motivated, violated the statutory guar-
antee under Section 7 of the Act that employees be repre-
sented by their exclusive agent without arbitrary, irrelevant,
or invidious discrimination. In addition to the foregoing,
the violations attributed to Respondent Unions are also
predicated upon the General Counsel's claim that the duty
of fair representation was also violated by the failure to
notify the strikers of and their resulting exclusion from the
ratification procedure which ultimately led to adoption of
the new contract. See, e.g., General Truck Drivers, Ware-
housemen, Helpers and Automotive Employees, Local 315,
Teamsters (Rhodes & Jamieson, Ltd), 217 NLRB 616 (1975),
enfd. 545 F.2d 1173 (9th Cir. 1976).
The case against the Respondent Employer stands upon
two alternative, but consistent, grounds. Thus, it is argued
that Respondent's efforts to secure abrogation of the award
violated Section 8(a)(3) and (1) of the Act in a conventional
sense in that the Employer exhibited hostility toward cer-
tain of the strikers and the Unions, and acting upon that
animus, sought their elimination by its adamant insistence
upon contract language denying all meaning to the arbitra-
tor's remedy. Furthermore, it is claimed that, absent spe-
cific evidence of unlawful motivation, Respondent Em-
ployer nevertheless must be held to have violated Section
8(a)(1) and (3) of the Act on a derivative basis, stemming
from Respondent Unions' alleged breach of the duty of fair
representation. See, e.g., Barton Brands, Ltd. 213 NLRB
640, 641 (1974).
By way of defense, Respondents, apart from their denials
of any improper motivation or bad faith, raise a bevy of
procedural grounds in urging that the complaint be dis-
missed. First, it is argued that Section 10(c) of the Act and
its limitation upon Board remedies in the case of any "indi-
211
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vidual ... suspended or discharged for cause" precludes the
Board from ordering reinstatement or backpay to any par-
ticipant in the unprotected strike. In the alternative, it is
argued that the Board should withhold its jurisdiction and
defer to a proceeding under Section 301 of the National
Labor Relations Act initiated by the Charging Parties,
which is presently pending in the United States District
Court for the Middle District of Pennsylvania. In addition,
they affirmatively assert that, pursuant to Section 10(b) of
the Act, the unfair labor practices should be dismissed as
untimely filed. Finally, it is argued that the failure of the
Charging Parties to exhaust internal union remedies pre-
cludes the Board from granting relief in this proceeding.
B. Concluding Findings
The facts
Respondent Employer is a manufacturer of tandem and
flatbed trailers. Its manufacturing activities are conducted
at nine plants, including that located at Berwick, Pennsyl-
vania, the sole facility involved here. At that location, Re-
spondent Unions have historically represented the produc-
tion and maintenance workers.
Local 644 is an amalgamated local which represents em-
ployees of a variety of distinct employers in an area of
Pennsylvania. The officers of Local 644 were not employees
of Strick. However, the president of that Local, Joseph
Connors, serviced the Berwick unit with the aid of Interna-
tional Representative Paul Clouser. Union business on a
day-to-day basis at the plant level was conducted through
shop stewards and an elected shop committee. In July 1974,
Charging Party John Horek was chairman of the shop com-
mittee, and Charging Party Walter Anderson was its vice
chairman.
The instant controversy finds its origin in events which
arose during the term of a collective-bargaining agreement
with a duration running from September 19, 1972, through
September 19, 1975. 4 That agreement included a conven-
tional grievance system, culminating in final and binding
arbitration' and a no-strike clause.6 The contract also con-
tained a clause whereby seniority would be terminated
upon "discharge for cause."'
Notwithstanding contractual provisions calculated to as-
sure stability during the term thereof, there were four work
stoppages in the Berwick unit in 1973 and 1974. The first
involved a walkout of six employees in April 1973, appar-
ently in protest of their having to work on Good Friday.
The second occurred in January 1974 and involved a walk-
At the hearing, viewing this defense as nonmeritorious, I excluded all
evidence pertaining thereto and thereby precluded factual litigation of this
issue. That view is reaffirmed. Cases cited by Respondent to the contrary are
deemed inapposite for all involved private litigants seeking to enforce the
duty of fair representation upon a labor organization in civil suits. The im-
port of this distinction is evident from the Supreme Court's consistent rejec-
tion of the exhaustion doctrine in procedures, where, as here, the moving
parties seek vindication of public rights under a Congressionally sanctioned
remedial scheme. See N.L R.B. v. Industrial Union of Marine & Shipbuilding
Workers of America, AFL-CIO, 391 U.S. 418, 422-424 (1968); Scofield [Wis.-
consin Motor Corp.] v. N.L.R.B., 394 U.S. 423, 430 (1968); McKinney v.
Mlssouri-Kansas-Texas Railroad Co., 357 U.S., 265, 268-270 (1958).
4 G.C. Exh. 2.
See G.C. Exh. 2, art. VI, p. 3.
'See G.C. Exh. 2, art. VI, p. 4.
7See G.C. Exh. 2, art. IX, sec. 9.08(b), p. 5.
out by the entire shop. This strike was prompted by an
injury to an employee and continued for a period of about
2 weeks. A few months later, in the early spring of 1974, 30
to 40 employees walked out in protest of the Company's
hiring two welders-both related to a foreman-without
requiring them to take the usual qualification test for such
positions.
The issues in this proceeding spring from events occur-
ring in July 1974. On Wednesday, July 10, 1974, a union
meeting was held. Twelve employees requested permission
to leave work to attend this meeting, but the request was
denied by their foreman. Nonetheless, the 12 employees,
intent on electing a new shop steward at the union meeting,
left the plant without permission and went to the meeting.
Upon their return to work during the same shift, all 12 were
discharged by their foreman, "Snake" Young. The dis-
chargees immediately returned to the union meeting, in-
forming the membership of their plight.
On July II, members of the shop committee including
Horek and Anderson met with the Employer's plant man-
ager, Ray Choley, and its personnel manager, Michael Mc-
Namara, concerning the discharges. During the course of
their deliberations, Choley offered to reinstate the 12 dis-
chargees, but refused to pay them for the time they lost on
the previous day. When Horek and Anderson carried the
Employer's proposal to the dischargees, it was rejected, the
dischargees being of the view that they should have been
paid.
On Friday, July 12, the dischargees appeared at the en-
trances to and apparently within the premises of the Ber-
wick plant soliciting employees to support them by walking
out. By noon most of the work force had obliged, though
the union officials remained on the job. Apparently only a
handful of night shift employees worked that day.'
On Sunday, July 14, union members convened, and, ac-
cording to the credited testimony of Clouser, the member-
ship's demand for reinstatement of the 12 dischargees
broadened. A list was prepared specifying 18 different
grievances, including demands for more money and re-
moval of the no-strike clause from the contract, and com-
plaints about safety and inadequate manning.9 The mem-
bership affirmed that they would not return to work unless
the entirety of their demands was met.'0
On Monday, July 15, pickets appeared at the plant en-
trances, and apparently all unit employees, with the excep-
tion of probationary workers, who were not then union
members, honored the picket lines.
The work stoppage did not diminish in breadth signifi-
cantly in the days that followed. On July 16, local union
Clouser, the International Representative of the UAW, testified credibly
that Horek telephoned him on Friday, July 12, reporting that the men were
walking out, and that Clouser told him that the walkout was illegal, unlaw-
ful, and in violation of the contract and that Horek should get the men back
to work. Horek, in that phone conversation, was also told that it was his
responsibility to work, and to keep all union unit officers on the job.
' See Resp. Un. Exh. 7(d).
'0 To the extent that the testimony of Clouser is in conflict with that of
Horek and Anderson, I credit Clouser. Horek and Anderson were thor-
oughly untrustworthy witnesses. Their complete lack of recollection that a
list was prepared and presented by them to management was viewed with
considerable circumspection, particularly in view of the radiating effect of
this fact upon their unbelievable testimony that they were unwilling partici-
pants in the strike, joining the walkout only because they were coerced by
other strikers.
212
STRICK CORPORATION
officials and Clouser again met with company representa-
tives. At that meeting, through W. James Walsh, Jr., Re-
spondent's corporate level director of industrial relations,
the Company expressed need for the continuing productiv-
ity of the employees and urged them to return to work and
to grieve the discharge of the 12 employees to arbitration.
The union representatives said that they did not wish to
arbitrate, but would stay out until the 12 men were reinstat-
ed. At that time Horek, with Anderson's tacit support, pre-
sented the list of demands prepared by the membership at
the union meeting of the previous Sunday, and informed
management that if they were not satisfied the strike would
continue." With respect to the list, Walsh, in eventually
cutting off Horek while the latter was itemizing the content
of the list, indicated that Horek was raising matters which
were the subject of collective bargaining or management
rights and that he no longer wished to discuss them. The
meeting apparently closed on that note.
At a further meeting apparently held on July 23, Walsh
informed the union representatives that the Company was
considering discharging the strikers. Nonetheless, the dis-
pute was not resolved.
By individual telegrams, on July 24, 1974, participants in
the strike, a group numbering over 200 employees, were
discharged.
Shortly thereafter, on July 27, 1974, a union membership
meeting was held where a grievance was drafted protesting
the discharges. The grievance was answered on August 23,
1974, with the Company stating that the strikers violated
the contract and company rules by engaging in a wildcat
strike and were terminated for good cause. Some time in
August 1974, the Company did offer to restore the strikers,
but as new employees without seniority.
On November 1, 1974, an arbitration hearing was held
on that grievance. The interest of the strikers was advanced
on that occasion by Respondent Unions through their at-
torney, Richard Markowitz. On November 27, 1974, the
arbitrator issued an award which in material part stated as
follows:
The arbitrator does not doubt the employees who
engaged in this strike, which the Union states was not
authorized, were responding to a strong sense of griev-
ance against the Company. While this explains their
action it does not make it permissible, particularly un-
der a labor agreement which states, unequivocally,
that, during its term, union members are not permitted
to take part in any strike, slow down or any other orga-
nized or concerted interference with work.
In return for giving up the right to strike to settle
grievances, the agreement provides that should differ-
ences arise between the Company and any employee,
group of employees or the Union, the matter will be
settled either in the grievance procedure or, if that
fails, in arbitration according to the rules of the Ameri-
can Arbitration Association.
The employees and the Union were completely
within their rights in rejecting the company's offer for
settlement of grievance number 1078 which involved
the discharge of the 12 employees who left work to
attend the union meeting. The only proper way to have
"i Based on the credited testimony of McNamara, Clouser. and Walsh.
settled that matter was to take it through whatever
steps of the grievance procedure remained, and, if it
was still not settled, to impartial arbitration for a deci-
sion which would be final and binding on both parties.
The completely improper way to try to settle it was for
the employees to have gone on strike. And they were
so advised by their union.
Under this circumstance the company was entirely
within the rights to hire new employees to replace the
strikers who had left their jobs improperly. It had just
cause for the strikers' discharge.
Yet it must be recognized that many of the strikers
were, to some extent, influenced more by the strong
emotions of the moment than by rational consider-
ations, while others may have been prevented from re-
turning to their jobs by the peer pressure of their co-
workers. While their discharge and replacement was
fully warranted, a penalty which denies them, forever.
the right to return to employment with this Compan3
and to again enjoy the benefits of the seniority they
acquired when previously employed by it, this appears
to be more punitive than is necessary. Accordingly, the
award provides them the right to be reemployed to fill
vacancies as they' occur. To qualify for that right, each
employee who has been discharged because of this un-
authorized work stoppage, including those who had
been rehired as new employees, are required to apply,
before January 15, 1975 to be placed on a reemploy-
ment roster ....
. upon such reemployment. they shall have the
seniority that they had when they were discharged.
Subsequently, some 124 of the strikers on a timely basis
signed the reemployment roster authorized by the award.
Not one was ever recalled. In the interim, after the com-
mencement of the strike, Strick had hired replacements. As
of January 14, 1975, there were 130 actively employed pro-
duction and maintenance workers in the Berwick unit. Yet
only one employee was hired after issuance of the arbitra-
tion award and his starting date was December 3, 1974.
Director of Industrial Relations Walsh testified that he
opposed the arbitrator's award on "moral, practical and
past history grounds." He went on to amplify that he felt
that the strikers had engaged in an illegal and unprotected
strike, that they had not followed the dictates of their lead-
ership in doing so, that some of them had engaged in three
prior wildcat strikes, and that they were not the type of
employees the Company wanted or who deserved to be re-
turned to work. As for his practical reasons for opposing
the award, Walsh explained that animosity would be engen-
dered in the event that the wildcat strikers were returned to
work side by side with the replacements.
Walsh was soon to have the opportunity to act upon his
reservations concerning the award. On September 19, 1975,
the then subsisting contract was scheduled to expire. Con-
tract renewal negotiations opened in July 1975. At the very
first session Walsh included in his proposal a revision to
existing clause 21.01, which provided:
This agreement supercedes and cancels all previous
agreements and/or abritration awards, both written
213
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and oral, and constitutes the entire agreement between
the parties.'
Parenthetically, it is noted at this point that the replace-
ments hired in consequence of the strike were subject to the
union-security provisions of the subsisting contract. Al-
though they and other nonstrikers had become dues-paying
members, Clouser credibly testified that he and Connors
deliberately shunned this group and performed no real rep-
resentative functions with respect to the newly constituted
work force until January 1975. After receiving complaints
from this group, including rumored decertification activity,
union officials decided to set up a membership meeting to
elect a new shop committee among the actively employed
nonstrikers and replacements. This occurred in January
1975.13
A wealth of evidence, which need not be labored herein,
was adduced at the hearing as to what transpired in the
course of these negotiations. Consistent with the credited
testimony of Walsh and Clouser, it should suffice to sum up
the developments as follows: The Company introduced its
proposed Clause 21.01 at the initial bargaining session.
Clouser resisted any such modification from the outset.
However, he was repeatedly informed by Walsh that pro-
posal 21.01 was indispensable to a new contract, that it was
very, very important to the Company, and that the Com-
pany would take a strike before entering into an agreement
without such a clause. Because of the foregoing, and since
actively employed members of the unit and their shop com-
mittee could be expected to agree to this language, Clouser
immediately sought advice from attorney Markowitz. By
letter dated July 22, 1975, Markowitz wrote Clouser, stating
in material part as follows:
I recognize the practical situation that you really
cannot expect present employees to agree to perpet-
uate the arbitration award because of its adverse effect
upon them. I would, however, hold out until the last
minute on this issue and then you might agree to a
clause which would provide as follows:
The seniority provisions of this agreement super-
cede and cancel all prior agreements and/or arbitra-
tion awards granting or denying seniority or reem-
ployment rights to individuals. The right of
individuals to recall shall be governed strictly by the
seniority provisions of this agreement and by no
other determination, arbitration award, etc.
After about nine bargaining sessions, though the parties
neared agreement, the status of proposal 21.01 remained
12 The Charging Parties point to an alleged conflict between Walsh's testi-
mony in this respect and a deposition he afforded on December 22, 1976, in
connection with a suit maintained by the Charging Parties under Sec. 301 in
the Federal crts. See G.C. Exh. 2I p. 27. Although the possibility of
unrest is the ony reason cited by Walsh in his testimony on that occasion,
his responses were within the framework of inquiries, narrowed to an exami-
nation of the reasons conveyed by the Company to the Union, as to why it
demanded the sec 2 1.01 revision. The parole testimony afforded by Walsh in
this proceeding struck me as reliable and afforded in a more complete fash-
ion, with candor It is credited.
11 With the exception of employee Andrews, who was elected shop chair
man in January. the shop committee at all times dunng the 1975 negotia-
tions included Charles Stout and David Creasy. In the course of nglla-
tions. Andrews was removed and Henry Marshall Jones replaced him on the
shop committee.
unresolved. Lacking support from among the actively em-
ployed for continued resistance to Respondent Employer's
21.01 proposal, Clouser on behalf of Respondent Union ac-
ceded and agreed to that provision on September 18, 1976.
Clouser, who was the prime spokesman for the Union at the
negotiating sessions, testified that he finally agreed to 21.01
because he had no choice; Respondent Employer insisted
upon it in any agreement reached and the shop committee
and membership wanted it. Clouser went on to explain,
quite plausibly, that he could not conduct a strike without
support of the actively employed membership, and that to
resist 21.01 would result in no contract and ultimately
would in all probability preclude Respondent Union from
continuing to represent that bargaining unit.
The Union's shop committee, and its principal negotia-
tor, Clouser, having agreed to the Respondent Employer's
proposal 21.01 at the last bargaining session on September
18, 1975, conducted a membership ratification meeting. The
discharged strikers were neither notified of nor otherwise
offered an opportunity to participate in the ratification
vote. The settlement achieved in the negotiations was ex-
ecuted by the parties on September 19, 1975. The revision
to article 21.01 appeared, however, on a separate attach-
ment.'4 and included the following language:
The seniority provisions of this agreement supercede
and cancel all prior agreements and/or arbitration
awards granting or denying seniority or reemployment
rights to individuals. The right of individuals to recall
shall be governed strictly by the seniority provisions of
this agreement and by no other determination, arbitra-
tion award, etc.
Following execution of the new contract, Respondent
Employer hired no new employees until January 23, 1976,
at the earliest. It is conceded by Respondent Employer that
had it honored the award and recalled the strikers who
signed the unemployment roster, all Charging Parties
would have been recalled to fill vacancies by January 26,
1977.
C. Analysis
1. The 10(b) issue
Respondent Employer and Respondent Unions join in a
contention that the complaint in this proceeding is time
barred by virtue of Section 10(b) of the Act." In this re-
spect, the facts show that the rights acquired by the strikers
pursuant to the arbitration award were abrogated through a
'4 See G.C. Exh. 3(b). Note that a reprint of the agreement (G.C. Exh.
3(a)) reflects a variation in language from that which was apparently agreed
to in the "attachment." Thus, that document states:
This agreement supersedes and cancels all previous agreements and/or
arbitration awards, both written and oral, and constitutes the entire
agreement between the parties.
Ihe basis lor this nonsubstantive change is not explained.
Sec I((h) of the Act provides in material part:
[Nlo complaint shall issue based upon any unfair labor practice occur-
nng more than 6 months prior to the filing of the charge with the Board
and the service of a copy thereof upon the person against whom such
charge is made ...
214
STRICK CORPORATION
collective-bargaining agreement which became effective on
September 19, 1975. Actual detriment, however, was not
sustained until January 23, 1976, when vacancies first
opened and were filled by new hires, rather than by dis-
charged strikers who had signed the recall roster and were
eligible for preference under the formula set forth in the
arbitration award. The unfair labor practice charge was not
filed until October 27, 1976. There is initial merit in the
observation of the Respondents that the foregoing consti-
tutes prima facie evidence that the complaint is barred by
Section 10(b) of the Act.'6 However, the General Counsel
and the Charging Parties point to other factors which. ac-
cording to their view, require a relaxation of the statutory
limitation under established precedent. In Brvyan, supra, the
Supreme Court, in finding, contrary to the Board, that a
complaint was time barred under Section 10(b), was careful
to point out "we are not dealing with a case of fraudulent
concealment alleged to toll the statute.""
In this spirit, Respondents' contention is countered by
the claim that, since the strikers were not directly or con-
structively notified of the abrogation of the award, the run-
ning of the 6-month limitation period was tolled until such
time as the alleged discriminatees acquired knowledge
thereof. Consistent with this view, Board precedent reflects
that where workingmen are the object of adverse action by
either a labor organization or an employer, which is alleged
to be discriminatory, the victim of alleged discrimination is
"entitled to clear notice of Respondent's adverse action be-
fore the statute of limitations would begin to run."' This
view has received court approval,' and constitutes the focal
point for resolution of the 10(b) defense herein. Sensible
application of precedent requires a conclusion that the
General Counsel met his burden by establishing that nei-
ther Respondent Unions nor Respondent Employer pro-
vided those adversely affected by their action of September
19, 1975, formal or constructive notice of the impairment of
the award. Beyond that, the General Counsel was not im-
pelled to go further and prove that the date on which actual
knowledge was acquired followed the aforesaid cutoff date.
Section 10(b) is a shield to protect charged parties against
the consequences of delay rather than a shield by which
wrongdoers may entwine the 6-month limitation within a
purposeful scheme to effect discrimination in a manner
leaving the victims without statutory remedy. Here the ac-
tion complained of relates to a deliberate repudiation of
rights acquired by the discharged strikers through the arbi-
tral process. It is not unreasonable to assume that Respon-
dents' failure to publicize this action to the strikers was
accompanied by a conscious regard for the high probability
that, had they done so, the bargain struck would meet im-
mediate challenge. In the circumstances, the possibility that
the failure to provide notice involved a deliberate and
fraudulent concealment is sufficiently great to require Re-
spondents to purge themselves of any possible advantage
they might reap from their conduct in this regard. Thus. it
was their burden. and not that of the General Counsel, to
prove that the failure to provide notice did not contribute
fatally to the delayed filing of the unfair labor practice
charges by themselves demonstrating that the individual
dischargees knew, prior to the 10(b) cutoff date, that their
rights had been abrogated through the collective-bargaining
process.
The record in this case does not permit a finding that the
dischargees acquired such knowledge prior to April 29.
1976. In this regard, apart from Anderson, Horek. Maurer,
and Cicini, the four dischargees who testified on this ques-
tion. there is no evidence whatever that the balance of those
signing the reemployment roster were ever made aware that
their reemployment opportunities had been negated. I am
inclined to believe the testimony of Anderson, Horek, and
Maurer'2 that they first learned that the contract had been
renegotiated after retaining Peter Broida as their attorney.
This finding is made despite the fact that on June 2. 1976. a
complaint was filed on their behalf in the United States
District Court for the Middle District of Pennsylvania.
which included the following allegations:
In violation of the collective bargaining agreement,
and in violation of the arbitration award. Strick has
failed and refused to offer employment to plaintiffs
from January 15, 1975, to the present in that the op-
portunity to fill all production and maintenance acan-
cies has not been first offered to plaintiffs, employees
on the reemployment roster, who have at all times
been qualified to fill the employment vacancies.
*
Since January 15. 1975. Strick has hired at least 40
production and maintenance employees at its Berwick
plant, none of whom have appeared on the reemploy-
ment roster.
It is not beyond possibility that based upon rumor rather
than hard fact, the attorney for the strikers instituted the
action in the District Court, hoping that through discovery
procedures the rumor would be substantiated. In an event.
the language in that complaint furnishes no basis for con-
cluding that the requisite knowledge was obtained prior to
the 10(b) cutoff date.
Accordingly. there being no clear evidence that the dis-
charged strikers knew of the alleged violation of their rights
prior to April 29. 1976. 1 find that 10(b) does not constitute
a bar to litigation of the instant complaint.
16 See Local Lodge No. 1424, International Association of Uachinists, A FL
CIO, [Bryan Manufacturing Company] v. N.L.R.B., 362 U.S. 411 (1960).
" 362 U.S. at 429, fn. 19.
I L C. Cassidv & Son, Inc., 185 NLRB 920, 926 (1970); See also Wiscon-
sin River Valley District Council of the United Brotherhood of Carpenters and
Joiners of America, AFL-CIO (Skippy Enterprises, Inc.), 211 NLRB 222. 227
(1974); Alabaster Lime Company, Inc., 194 NLRB 1116. 1118 (1972).
19 See. e.g., N. L.R B v. Shawnee Industries, 333 F 2d. 221, 224 (O0th Cir.
1964).
20 Cicini engaged an attorney, Joseph Torsella, in connection with the ru-
mored hiring by the Respondent Employer. In February 1976. Torsella
wrote Respondent Employer. The latter forwarded a response on Februarv
23, 1976, specifically advising that sec. 21.01 of the newly negotiated collec-
tive-bargaining agreement abrogated the award. Cicini insists that his attor-
ney did not contact him and that he received no information to this effect.
Even were I to disbelieve Cicini's testimony in this regard, the record would
merely permit speculation as to when he received such information.
215
~a
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The merits
a. Specific evidence of motivation
Prior to consideration of the alleged breach of the duty of
fair representation, it is necessary to consider contentions
that Respondent Employer sought abrogation of the arbi-
tration award out of a specific motivation to eliminate ac-
tive supporters who had been engaged in the filing of griev-
ances and other complaints. The evidence does not
substantiate this contention.'
In this connection, the general testimony of Horek and
Anderson that prior to the strike, the bargaining relation-
ship had been marked by an inordinate number of griev-
ances and a general lack of harmony was conclusionary,
opinionated, and nonpersuasive. I have previously ex-
pressed my doubts as to the credibility of Horek and An-
derson, and their testimony in this regard struck me as no
more than unreliable argumentation.
Nonetheless, it is a fact that some time prior to the strike
Ray Choley, the plant manager at Berwick, suggested, in
response to Horek's expression of dissatisfaction with Local
644, that there were methods for getting rid of that Local,
and that he subsequently forwarded to Horek an article
explaining the mechanics of decertification. In a similar
category is testimony by nonstriker Frank Appleby, who
related that during the strike he had a conversation with
McNamara in which the possibility of getting rid of the
UIAW was discussed. However, there is no perceptible nex-
us between animus toward Local 644 and conduct under
scrutiny in this proceeding. To the contrary, the unlawful
conduct attributed to the Employer in this proceeding led
to reinforcement of the Union's representative status for an
additional 3-year period, rather than its demise.
More cogent is the General Counsel's reference to a
meeting in the fall of 1974 between an admitted supervisor,
Joseph Marston, and Horek, Anderson, and another dis-
charged employee. At the time, Marston was disenchanted
with his own conditions of work. Anderson testified that on
that occasion Marston informed him that the relationship
between the Union and the Company was very bad and
that Marston himself had seen a list of workers whom he
was told to get rid of. Horek testified that Marston stated
that the Company was unfair, and that he would quit if he
had another job. torek further related that Marston stated
that Choley and McNamara had made up a list of the strik-
ers that they wanted to get rid of, including Horek, Ander-
son, Cicini, Mike Harrison, Moe Barski, and Augustinelli.
:l With respect to a somewhat collateral matter, I find that under no the-
or) substantiated on this record may a violation be found in the case of
Charging Party Louis S. Trapane. Though Trapane was present at the hear-
ing, he was not called as a witness. Uncontradicted and credited testimony
establishes that at the time of the strike, Trapane, having sustained a com-
pensahle disability under workmen's compensation laws, was not actively
employed Subsequently. in September 1974, Trapane received a release en-
abling him to return to work However, at that time, he informed representa-
tives of the Company that he had no intention of returning because of the
labor dispute. He was not discharged, and hence was neither covered by the
grievance submitted to the arbitrator nor a beneficiary of the final award.
Insofar as this record discloses, Trapane at all times material herein was a
striker who withdrew his services in violation of the no-strike clause in the
governing collectise-bargaining agreement. As such, he was engaged in con-
duct beyond the protective pale of the Act.
Horek went on to testify that Cicini and Augustinelli were
on the list because of their involvement in grievance ac-
tivity.22
Marston credibly testified that he had no first-hand
knowledge that such a list existed, but assumed that it did
because shortly after the commencement of the strike, all
foremen were individually interviewed by the general fore-
man and director of personnel who sought information as
to which of the strikers under their jurisdiction they wanted
back. Marston credibly testified that the names he passed
on to Horek and Anderson at their meeting was based on
information he received from conversations with foremen in
other departments. I credit the testimony of Marston over
that of Horek and Anderson.
While it is a fact that Marston, at the hearing, adhered to
the view that he had heard that the Company had no inten-
tion of reemploying Horek and Anderson and while it also
appears that Choley, after the strike, attempted to secure
the discharge of Horek and Anderson from an interim em-
ployer,2 in the circumstances, it is somewhat difficult to
believe that any special interest on the part of Respondent
Employer in eliminating them from its work force figured to
any extent in Walsh's decision to nullify reemployment
rights of some 124 strikers. I would note, in passing that the
evidence of animus against the named individuals is also
lessened by the failure of the record to unambiguously re-
flect that it was based on anything other than their unpro-
tected activity.
With respect to the General Counsel's contentions in this
regard, and in contrast with the inferences he urges upon
me, I find the testimony of Industrial Relations Director
Walsh as to why the Company sought abrogation of the
award to be entirely credible. I consider it unlikely that the
Company's insistence upon abrogation of the award was
motivated by anything other than its interest in resurrecting
the discipline meted out against the entire group of strikers
for their unprotected conduct. Respondent Employer's hos-
tility to the unlawful strike, to participants therein, and to
the award of the arbitrator was perfectly understandable.
The walkout of June 11 was the fourth in a series of unpro-
tected stoppages within a 16-month period. Nonetheless,
the Employer's position after the walkout of July 11, 1974,
and prior to the discharges reflected a willingness to com-
promise over the strikers' grievances in order to encourage
22 A tape exists which amounts to a partial reproduction of the conversa-
tion in question. Although the tape was not complete, all parties had the
opportunity to introduce whatever segments they wished. Respondent Em-
ployer's Exh. I is a partial transcription thereof. It indicates that Barski's
name was brought up by Horek and not Marston, but more significant is the
fact that the only reasons afforded by Marston appearing on the face of the
exhibit for inclusion of strikers on the alleged list were agitation during the
work stoppage, and theft. Nowhere in the transcript does it appear that
Marston made any reference to grievance activity by the strikers.
After their discharges, Horek and Anderson obtained interim employ-
ment with a security service, called M & T Security, in the fall of 1974.
M & T Security was under contract with an industrial park known as BIDA.
The Employer's plant was located in the BIDA complex. Choley admitted
that he telephoned Warren Haas, a BIDA representative responsible for
security services in the complex, and complained as to Anderson's and
Horek's employment with M & T, a firm whose billings were paid in part by
Strick. Choley requested the discharge of Horek and Anderson from M & T
expressing his doubt as to whether they, as wildcat strikers, could provide
adequate security to incumbent employees attempting to enter and leave the
plant.
216
STRICK CORPORATION
them to abide by their contractual commitment and to re-
turn to work while utilizing agreed-upon dispute settlement
machinery to remedy any adverse conditions. Even after
the discharges, the Employer in August 1974 offered to re-
store all the strikers, albeit as new employees and without
seniority. While I am convinced that the effort to secure
and negotiate repudiation of the remedial aspects of the
arbitrator's award was in its entirety motivated by a desire
to perfect discipline against the strikers as a class, I am
mindful that as an incidental effect of said action, certain
strikers whom the Employer considered undesirable were
eliminated for future employment. Nonetheless, fair consid-
eration, based upon the realities, precludes even faint suspi-
cion that a desire to accomplish any such objective was a
substantial contributing factor herein. Accordingly, a pre-
ponderance of the record does not substantiate the charge
that independent evidence exists showing that Respondent
Employer acted upon any proscribed motivation.
b. The breach of the dut of fair representation
'the credible evidence in this case fails to raise any ques-
tion as to the diligence with which the exclusive representa-
tive sought to vindicate the rights of the discharged strikers
prior to the opening of contract renewal negotiations in
July 1975.14 The International and Local participated in the
preparation and actual prosecution of the grievance chal-
lenging the discharges, and represented individual strikers
seeking unemployment insurance compensation. There is
also evidence that continuing allegiance to the strikers
prompted union officials to ignore the nonstrikers and re-
placements until January 1975. In that month this latter
category of actively employed workers designated their own
shop committee. Subsequently, in July 1975, contract re-
newal negotiations opened, with the Employer stressing
throughout that abrogation of the reemployment provisions
of the arbitrator's award was indispensable to the execution
of a new contract. As negotiations neared the impasse
stage, Respondent Unions were pushed to the dilemma.
Powerless to strike because employees on payroll status and
their shop committee agreed with the Company's position
on clause 21.01, and faced with the Employer's adamant
insistence upon that provision in any new agreement, the
Union was confronted with the very real choice of either
losing the unit or accepting an agreement within the frame-
work of the Employer's demand. Because it took the latter
course, and in doing so did not allow the strikers to partici-
pate in the ratification process, or notify them thereof, it is
claimed that the Union violated its duty to represent fairly
the discharged strikers and thereby violated Section
8(b)(1)(A) and (b)(2) of the Act.
The concept that a labor organization which fails to rep-
resent all employees equally may commit an unfair labor
practice was first enunciated by the Board in Miranda Fuel
Company, Inc., 140 NLRB 181 (1962). The Board adopted
that view against a background of judicial authority ac-
knowledging a legally enforceable duty on the part of labor
organizations toward represented employees. Thus, in
14 Testimony by Horek and Anderson suggesting otherwise was not be-
lieved.
Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192,
202 203 (1944), the Supreme Court stated:
Congress has seen fit to clothe the bargaining repre-
sentative with powers comparable to those possessed
by a legislative body both to create and restrict the
rights of those whom it represents . .., but it has also
imposed on the representative a corresponding duty.
We hold that the language of the Act ... expresses the
aim of Congress to impose on the bargaining represent-
ative of a craft or class of employees the duty to exer-
cise fairly the power conferred upon it in behalf of all
those for whom it acts. without hostile discrimination
against them."
As for the proof responsibilities under that doctrine, it
appears that the party asserting such a breach carries an
initial burden which varies depending upon the circum-
stances. "The test is whether the Union's conduct toward a
unit employee is arbitrary, discriminatory, or in bad faith.
A union has violated its duty of fair representation and
Section 8(b)(1)(A) of the Act only if this question can be
answered in the affirmative."2 " Conduct on the part of a
union which results in a detriment to an individual or class
of represented employees may on its face be arbitrary and
discriminatory. In such circumstances bad faith is not an
indispensable element of a violation and need not be sub-
stantiated by collateral proof."
On the other hand, where, as here, the impropriety stems
from collective-bargaining negotiations, inquiry as to moti-
vation achieves heightened significance. In such circum-
stances, it is necessary to accommodate tension between the
duty of fair representation and the wide area of discretion
afforded the bargaining representative. "The complete sat-
isfaction of all who are represented is hardly to be expected.
A wide range of reasonableness must be allowed a statutory
bargaining representative in serving the unit it represents,
subject always to complete good faith and honesty of pur-
pose in the exercise of its discretion."2 ' The need for judicial
and administrative restraint where intervention might im-
pair the bargaining process was expressed early in the de-
velopment of this concept to assure that the duty of fair
representation not be invoked in the manner which ham-
strings labor organizations in effecting one of their most
critical responsibilities. Thus, in Steele v. Louisville and
Nashville R.R., supra, it was stated at 203:
This does not mean that the statutory representative
of a craft is barred from making contracts which may
have unfavorable effects on some of the members of
the craft represented. Variations in the terms of the
contract based on differences relevant to the autho-
rized purposes of the contract in conditions to which
they are to be applied, such as differences in seniority.
the type of work performed, the competence and skill
with which it is performed, are within the scope of the
25 The statute involved was the Railway Labor Act.
2
6 See King Soopers. Inc. 222 NLRB 1011. 1019 (1976): United Steelwork-
ers of America, AFL-CIO, et al (Duval Corporation), 226 NLRB 772, 784
(1976).
27 See Vaca v. Sipes, 386 U.S. 171 (1967); Ruzica v. General Motors Corpo-
ration, 523 F.2d. 306, 309-310 (6th Cir. 1975). Warehouse Umnion, Local 860,
Teamsters (The Emporium), 236 N'LRB 844 (19781.
"2 Ford Motor Conmpan) . Huffman, 345 U.S. 330, 338 (1953).
217
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining representation of a craft, all of whose mem-
bers are not identical in their interest or merit.
In Ford Motor Company v. Huffman, supra at 338, the Su-
preme Court stated:
Inevitably differences arise in the manner and degree
to which the terms of any negotiated agreement affect
individual employees and classes of employees. The
mere existence of such differences does not make them
invalid ...
And in Simberlund v. Long Island Railroad Company, 421
F.2d. 1219, 1227 (2d Cir. 1970), the Court stated:
To hold otherwise on this record would prevent a
union from ever striking a bargain which benefits some
of its members over others, a situation clearly at odds
with Federal labor policy as enunciated in such cases
as Steele and Ford Motor Co.
The foregoing makes clear that the element of majority
rule embedded in the concept of free collective bargaining
may frequently collide with the duty of fair representation
where the latter is invoked on behalf of those adversely
affected through the give and take of negotiations. Neither
individual rights nor the interest in fostering a free system
of collective bargaining should be preferred at the expense
of the other. Accommodation of these competing interests
may only be realized by imposing an evidentiary burden
upon the party seeking to upset a duly negotiated agree-
ment that the labor organization did in fact act upon arbi-
trary, invidious, or discriminatory grounds.
With these general principles in mind, and taking full
account of the realities, in the light of the credible testi-
mony on this record, I am convinced that the Union har-
bored no animus against the strikers, and that it entered the
1975 negotiations with no interest to be served by curtail-
ment of their rights. Faced with the Employer's adamant
position in negotiations, it ultimately agreed under condi-
tions in which the only employees who could effectively
bring pressure upon the Employer would be asked to strike
in support of a position which threatened their own job
security and with which they disagreed. Furthermore, any
failure to agree on the Unions' part would most certainly
have deferred benefits for the actively employed replace-
ments and nonstrikers. There could be little doubt in Sep-
tember 1975, when negotiations drew to a close, that fore-
stalled negotiations over Article 21.01 would, to put it
mildly, endanger the Unions' representative status at Ber-
wick. While representatives of the Unions waivered in their
testimony in this respect, I am convinced that to avoid the
obvious consequences of provoking an impasse over this
issue and in the interest of self-preservation the Unions ulti-
mately accepted."
w9 G.C. Exh. 9(b) is entitled "ANSWERS OF LOCAL 644 TO PLAIN-
TIFFS' INTERROGATORIES." That document is signed by Robert C.
Cohen as an attorney for Local Union No. 644. The accuracy of the content
thereof is affirmed by sworn affidavit of Joseph R. Connors. The interrogato-
ries were prepared as part of the pretrial discovery procedure in the suit by
the Charging Parties under Section 301 of the Act in the U.S. District Court
for the Middle District of Pennsylvania. Connors testified in the proceeding
that it was Clauser, not himself, who acted as the principal spokesman dur-
ing the negotiations. Item 7 of the G.C. Exh. 9(b) recites as follows:
a. The provision was demanded by Strick which threatened to bargain
to impasse for its inclusion.
Both the General Counsel and the Charging Parties con-
tend that the foregoing afforded no justification for offend-
ing the rights of the strikers, urging that ". . . a political
threat to a union's security does not justify the sacrifice of
the employment interests of a politically weaker group of
employees." The substance of their claim is that labor or-
ganizations generally are enjoined by the duty of fair repre-
sentation from sacrificing individual employment rights to
enhance their own status. For support, the General Counsel
and Charging Parties rely heavily upon Red Ball Motor
Freight, Inc., 157 NLRB 1237, enfd. 379 F.2d 137 (D.C. Cir.
1967); and Barton Brands, Ltd., 213 NLRB 640 (1974).
In Red Ball, the issue arose in the context of a merger of
two distinct working complements, represented by different
labor organizations, into a single integrated operation. It
was agreed that the election process of the NLRB would be
utilized to resolve the competing claims for representation.
During the preelection campaign, the union which formerly
represented the larger group offered assurances to those em-
ployees that, if designated, it would, through the process of
negotiation, provide them with a higher seniority ranking
than would be afforded employees previously represented
by the other union. In finding that this statement consti-
tuted coercion within the meaning of Section 8(b)(l)(A) of
the Act, it was concluded that the duty of fair representa-
tion was violated by such preelection statements since no
reasonable basis for the discrimination proposed against the
smaller group was demonstrated and because the promised
action did ". . . not reflect the kind of compromise between
competing interests which collective bargaining daily re-
quires, but would serve the interest of UTE and the major-
ity of the employees in the unit it [UTE] sought to represent
with hostility to those of the minority." °
In Barton Brands, Ltd., supra, the Board found a breach
of the duty of fair representation growing out of negotia-
tions which took place after the merger of separate bargain-
ing units. Initially seniority of employees in the newly inte-
grated unit was dovetailed. However, during subsequent
contract negotiations, the union proposed and ultimately
obtained the employer's assent to a provision discriminat-
ing, for purposes of seniority, against the employees whose
prior employment was in the smaller unit. The Administra-
tive Law Judge initially dismissed the complaint in its en-
tirety. The Board reversed, finding that the Union violated
Section 8(b)(2) and (b)(l)(A) and that the Employer vio-
b. Existing employees in the plant threatened to initiate decertification
proceedings if individuals not employed who had been discharged as
wildcat strikers were reemployed and given senionty over them.
c. The general give and take of negotiations, together with the above
factors, persuaded Local 644 that the individuals who (1) had partici-
pated in the wildcat stnke; (2) had subjected the Union to possible
damage claims; (3) had properly been discharged by the employer; and
(4) had not paid dues to the Union for over a year, should not be given
preferential seniority treatment.
Fairly construed, against the credible evidence in this record, I do not take
item (c) above as an admission against interest as to the motive of the Union.
In the circumstances, I am convinced that this portion of the interrogatories
consisted of argumentative expression, calculated to arouse sympathy for the
Unions' action as distinguished from accurate revelation as to the consider-
ations which actually prompted the union representatives to accept the Em-
ployer's proposal. 21.01.
0 157 NLRB at 1245.
218
STRICK CORPORATION
lated Section 8(a)(3) and (1) of the Act concluding that the
union breached its duty of fair representation by effecting a
reduction in seniority at the expense of a smaller group of
employees. The Board described the basis for the union's
action as follows: "[T]he motivation for the Union's stand
was to assure the election of Ken Cecil by the numerically
superior Barton employees at the expense of the small mi-
nority of former Glenco employees. 213 NLRB at 641.3'
Barton Brands, supra, and Red Ball, supra, afford no
clear-cut answer to the issue under consideration here. Det-
rimental action against segments of a bargaining unit to
bolster the political stature of a union official or to enable a
labor organization to obtain advantage over a rival union
with respect to a pending question concerning representa-
tion has little resemblance to the motivation on which Re-
spondent Unions acted herein. Here, we have an incumbent
representative, acting out of the institutional consideration
of self-preservation under most extenuating circumstances.
While there can be no question but that, in the process, the
union representatives knowingly disadvantaged one cate-
gory of employees, the inquiry does not end there. Under
the precedent, the action by the Union must be found to
have been an "arbitrary sacrifice of a group of employees'
rights in favor of another stronger or more politically fa-
vored group .... " See A. Gainey v. Brotherhood of Railway
and Steamship Clerks, etc., 313 F.2d 318, 324 (3d Cir. 1963).
Basic statutory policies might well be offended by any
notion that arbitrary conduct is inherent in a labor organi-
zation's effort to preserve its representative status at the
expense of certain employees. To so hold would clash with
the desirability of maintaining the stability of existing col-
lective-bargaining relationships, long recognized as a cen-
tral objective of the Act. Consistent with such objective,
over the years, concepts have been devised by the Board to
implement that policy, which apply often at the expense of
even a majority of employees in a particular bargaining
unit. Included are the Board's contract bar rule, the pre-
sumption of continuing majority, and the principle that an
established relationship is invulnerable to challenge within
1 year after certification or a reasonable period of time if
established pursuant to informal recognition. To serve these
same ends, it would seem that, at the very least, a labor
organization's action in the interest of preserving its repre-
sentative status-an ever-present concern upon those on the
union side of the negotiating table-should only be con-
demned after careful thought as to the standard of respon-
sibility which should rightfully emerge from all surrounding
facts. Consistent therewith, it is concluded that a negotiated
I1 The Circuit Court of the United States for the Seventh Circuit in Barton
Brands, Ld. v. N.L.R.B., 529 F.2d. 793, 797 (7th Cir. 1976), disagreed with
the Board, and concluded that the record did not support a basis for imput-
ing the above-described motivation to the union. The court reasoned that the
union official was not acting within the scope of his authority, and therefore
his motivation was not chargeable to the union as a whole. Nonetheless, the
court remanded the proceeding to the Board for consideration of whether its
decision might be sustained on other grounds. Thereafter, the Board reaf-
firmed its original findings. after concluding, within the framework of the
court's remand, that the union failed to make the required showing necessary
to absolve it of liability; i.e., that the negotiated endtailing of the seniority of
the smaller group was based upon objective justification. As for the em-
ployer, the Board similarly concluded that the employer failed to demon-
strate that its entry into that agreement was based upon legitimate business
considerations. See Barton Brands, Ld, 228 NLRB 889 (197 7).
change to the detriment of a segment of the bargaining unit
in the interest of avoiding decertification lacks the inherent
strain of arbitrariness.
With the foregoing in mind, I find that the discharged
strikers should be relegated to whatever remedies might be
available to them under Section 301 of the Act.32 The fac-
tors set forth below lead to the conclusion that the duty of
fair representation was not violated herein.
Thus, the Unions' necessity to preserve their status as
exclusive representative was occasioned by forces which
were not of their own making. They neither inspired,
abetted, nor condoned the conduct of the dischargees which
robbed all substance from the contractual assurance pro-
vided the Employer that during the years 1972 to 1975,
production would continue unabated by disruptive influ-
ences of work stoppages. Similarly the proposal to abrogate
the arbitration award was contrived, injected into the nego-
tiations, and insisted upon as the price for a new contract,
all solely by the Employer. The Unions were caught up in
that drift of events when on September 18, 1975, they as-
sented to the Employer's proposal 21.01.
True, at that time the discharged strikers, by virtue of the
arbitration award, had a reasonable expectancy of future
unemployment and as such were within the class benefiting
from the duty of fair representation. Any definition of what
that duty entailed, however, must take account of the con-
flicting interest of the other segment in the represented unit,
who also fell within the protective scope of that doctrine.
Thus, nonstrikers and replacements, by virtue of the collec-
tive-bargaining agreement under which they were em-
ployed and the union-security provisions thereof, were re-
quired to become union members. It is not inconceivable
that many of them crossed the picket lines and reported to
work under the assumption that their future job security
would not be threatened by individuals discharged because
of their participation in the unlawful strike." The collective-
bargaining agreement in effect at that time specifically pro-
vided that seniority shall be broken "if an employee is dis-
charged for good cause."" Under such a clause there would
be no reason for them to assume that an arbitrator would
conclude that strikers, though discharged for cause. should
be entitled to seniority superior to theirs. Their support of
the Employer's position on clause 21.01 was predicated
upon more than an outright power grab.
More significant, however, to assessment of the degree of
responsibility to be imposed upon the Unions are the hard
practical considerations, which bore directly upon the
Unions' position in the 1975 negotiations, and the relative
standing of the represented groups with respect to those
conditions. The dischargees had no interest whatever in
timely culmination of the negotiations, for their participa-
12 it is entirely possible that such a contract action on the facts involved
would produce a remedy more compatible with the equities than those which
would be imposed here.
13 Testimony was adduced from Horek and Anderson to the effect that
they were not willing participants in the strike, but did not report to work
during the period prior to their discharges, solely because coerced by the
conduct of other strikers. Both were regarded as unreliable witnesses. The
testimony of Horek and Anderson as to their uncommunicated state of mind
was self-serving. contradictory, and did not have a ring of truth. It impressed
me as afterthought and, like other uncorroborated aspects of their testimony.
was not believed.
'4 See G.C. Exh. 2, sec. 908(b).
219
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion in ultimate benefits was inchoate and perhaps even
conditional. On the other hand, any prolongation of the
negotiations would be at the expense of the actively em-
ployed nonstrikers and replacements. To them, continued
resistance by their representative to proposal 21.01 meant
deferred enjoyment of other agreed-upon benefit gains. Yet,
this was the sole group in a position to impose economic
restraints upon the Employer in the event of impasse. The
Unions were in no position to marshal support from the
latter in furtherance of a bargaining position which, if suc-
cessfully maintained, would weaken the job security of that
group.
Such irreconcilable conflict within a represented unit and
its radiating effects at the negotiating table hardly provide
an ideal format for application of technical legal concep-
tions. No term or condition of employment potentially is
more divisive than seniority. Any negotiated change in an
existing seniority structure doubtless operates to disadvan-
tage certain unit numbers. In such circumstances, the exclu-
sive representative is asked to serve two masters, and
overzealous attentiveness to egality ought not be practiced
by the authorities to the point whereby such considerations
are superficially applied so as to confuse the duties of a
fiduciary with the more stringent standards applicable to
insurers.
Respondent Unions in this case preferred agreement to
inertia, and their having done so, albeit at the expense of
the dischargees, was not in disharmony with the pragmatics
of collective bargaining.
Considering all the foregoing, I find that the record does
not substantiate that the Union, in yielding to the Employ-
er's demand and acting in a fashion consistent with the
interest of all actively employed elements in the bargaining
unit, breached any standard of responsibility owed to the
discharged strikers. It is my further conclusion that there is
no merit in the General Counsel's contention that the
8(b)(2) and 8(b)( )(A) allegations are nonetheless substanti-
ated by reason of the Unions' failure to notify the dis-
charged strikers of the agreement reached and to allow
their participation in the ratification process. Here, the
Unions' contract settlement was based on hard practical
considerations inoffensive to statutory interests. It was at
that juncture that the "die was legitimately cast."35 Any
reversal of that conclusion must rest upon imposition of a
duty of notification, which would have required the Unions
to invite a meaningless yet potentially explosive confronta-
tion between the conflicting groups. Allowing the discharg-
ees to participate in the ratification process could inflame
and obstruct, even though that group could not alleviate
the conditions leading to the Unions' agreement. Having
found that in the particular circumstances of this case, Re-
spondent Unions' deference to the actively employed work
15 Cf. General Truck Drivers, Warehousemen, Helpers and Automotive Em-
ployees, Local 315. Teamsters (Rhodes & Jamieson, Ltd.), 217 NLRB 616, 619
(1975).
force did not entail a breach of any fiduciary obligation, the
notice issue is controlled thereby. That view should not be
altered through indirection by giving overarching weight to
matters which, in the circumstances, would derogate from
rather than facilitate the process of collective bargaining.
Accordingly, it is concluded that the 8(b)(1)(A) and 8(b)(2)
allegations are not substantiated by the Unions' failure to
afford the discharged strikers notice of and an opportunity
to participate in the ratification process.
Based upon the foregoing, and as no independent evi-
dence exists that Respondent Employer pressed for abroga-
tion of the arbitration award for reasons violative of Section
8(a)(3) and (1) of the Act, said allegations have not been
substantiated by a preponderance of the evidence, and dis-
missal thereof shall be recommended.
CONCLUSIONS OF LAW
1. The Respondent Employer is an employer within the
meaning of Section 2(2) of the Act and is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent Unions are labor organizations
within the meaning of Section 2(5) of the Act, and at all
times material herein have been the exclusive representative
of certain employees of the Employer fbr the purposes of
collective bargaining within the meaning of Section 9(a) of
the Act.
3. Respondent Employer did not violate Section 8(a)(3)
and (I) of the Act and Respondent Unions did not violate
Section 8(a)(1)(A) and (b)(2) of the Act by entering an
agreement nullifying seniority and employment opportuni-
ties acquired by certain discharged strikers pursuant to an
arbitration award.
Based on the foregoing findings of fact and conclusions
of law and upon the entire record in this proceeding, and
pursuant to Section 10(c) of the Act." I issue the following
recommended:
ORDER37
It is hereby ordered that the complaint herein be, and it
hereby is, dismissed in its entirety.
c Respondent Unions seek assessment of litigation costs against the
Charging Party and General Counsel in view of alleged bad faith exhibited
by them in litigating this proceeding. Aside from the question as to whether
authority exists for affording such reimbursement, neither the underlying
unfair labor practice charge, the complaint issued thereon, nor the litigation
pursuant thereto, involved frivolous claims or bad faith on the part of either
the Charging Party or the General Counsel. The request of Respondent
Unions is denied.
1" 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.
220