Dubo Manufacturing Corp.

National Labor Relations Board - Board Decisions

Sep 16, 1964

148 N.L.R.B. 1114 (N.L.R.B. 1964)

1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten, coerce, or restrain Diffine's Quality Dairy, Wendt's
Cream Top Dairy , Inc., Arcade Farms Co-operative Incorporated , or any other
person engaged in commerce or in an industry affecting commerce , where an ob-
ject is to force or require any of said Employers , or any other employer or per-
son, to cease doing business with Great Northern Juice Corporation or its affili-
ate Mesmer and Sons Dairy, Inc.
WE WILL NOT engage in or induce or encourage individuals employed by any
of the above-named Employers , or any other person engaged in commerce or in
an industry affecting commerce , to engage in strikes or refusals in the course of
their employment to process, transport , handle or otherwise work on products
or perform services , where an object is to force or require , any. of said Em-
ployers, or any other employer or person , to cease doing business with Great
Northern Juice Corporation or its affiliate Mesmer and Sons Dairy, Inc.
LOCAL 39, MILK, ICE CREAM DRIVERS AND DAIRY EMPLOYEES
UNION, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 120 Dela-
ware Avenue, Fourth Floor , The 120 Building , Buffalo, New York , Telephone No.
TL 6-1782, if they have any question concerning this notice or compliance with its
provisions.
Dubo Manufacturing Corporation and United Steelworkers of
America, AFL-CIO. Cases Nos. 8-CA-2700 and 8-CA-2820.
September 16, 1964
SUPPLEMENTAL DECISION AND ORDER
The consolidated complaint in the above-entitled proceeding alleged
that the Respondent had violated Section 8 (a) (5) and (1) of the Act
by refusing to bargain with the Union as the representative of its em-
ployees; had violated Section 8(a) (3) of t'he Act by discharging and
refusing to reinstate 16 employees to their former or substantially
equivalent positions because they had engaged in concerted, protected
activities; and had violated Section 8(a) (1) of the Act by threatening
its employees with reprisals because they had engaged in concerted,
protected activities. On August 28, 1962, Trial Examiner Sidney
Sherman issued his Intermediate Report in the above-entitled pro-
ceeding, finding that the Respondent had engaged in the unfair labor
practices as alleged and recommending certain remedial action.
On May 1, 1963, the Board issued a notice in the above-entitled pro-
ceeding, notifying the parties herein that the Board would defer its
ruling in the case with regard to the Section 8(a) (3) allegations in
the complaint.' The notice further advised the parties that the Board
2142 NLRB 431.
148 NLRB No. 95.
DUBO MANUFACTURING CORPORATION 1115
would not, however, defer consideration of the 8(a) (5) and (1) alle-
gations of the complaint, but would instead review the Trial Exam-
iner's findings thereon. Subsequently, on May 27, 1963, the Board
issued a Decision and Order 2 in these cases finding that Respondent
had engaged in and was engaging in certain unfair labor practices in
violation of Section 8 (a) (5) and (1) of the Act and ordered it to cease
and desist therefrom and take certain affirmative action, as set forth
in its Decision and Order. In conformity with the Board's notice of
May 1, 1963, we 3 will now proceed to a determination of the deferred
8 (a) (3) and 8 (a) (1) allegations of the complaint.
Briefly, the facts, which are more fully set forth in the Intermediate
Report, are as follows: The Respondent and the Union were parties
to a collective-bargaining agreement which had grievance and arbitra-
tion clauses. The agreement, however, did not contain a no-strike
clause.
On December 29, 1961, employee William Nesit asked to be excused
from work due to illness. His superintendent, Wise, told Nesit that
he would have to obtain a medical certificate before returning to work.
When Nesit returned to work on January 2, 1962, without a medical
certificate, Wise did not permit him to punch in. Nesit then con-
ferred with the president of the Local who told him to report to the
union hall. Thereafter, the Local president and 14 others left their
work stations and eventually left the company premises. Although
no employees conferred with Wise as to their reason for leaving, it is
clear that Wise knew it was in relation to his order to Nesit. As some
of the employees were leaving, Superintendent Wise told them that
the Company considered their action a "voluntary quit." Later that
morning, the Company's labor relations consultant, Rector, advised
Taggart, the union representative, to "get those men back to work."
However, in later conversations with Taggart, Rector stated that the
Company had taken the position that the men had quit. The men did
not return to work that day, but did return the following day and--
were advised that the Company considered that they had "quit" their
employment.
Subsequently, on January 8, 1962, four employees were reinstated
without seniority. The others were never recalled. The next day the
Union -presented 3 grievances to, the Company : (1) the 12 employees
not reinstated alleged that "we have been unjustly discharged and not
been permitted to work"; (2) Nesit claimed that he had not been given
0
2 142 NLRB 812.
3 Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with these cases to a three-member panel [Chairman McCulloch
and Members Leedom and Jenkins].
1116 DECISIONS OF NATIONAL11ABOR-RELATIONS BOARD
the opportunity to present his medical certificate; and (3) Hollie
Lansberry alleged a violation of his seniority rights. On January 17;
1962, the Union requested arbitration of the grievances. The Com-
pany refused on the theory that the walkout breached the contract
leaving no contract provisions on which to arbitrate grievances.
Thereafter, the Union filed the charges involved herein.
Prior to the issuance of the complaint, the Union, upon Respond-
ent's refusal to arbitrate the grievances, petitioned the United States
District Court for the Northern District of Ohio, Eastern Division,
for an order compelling Respondent to arbitrate. Subsequently, the
district court issued an order directing the arbitration of the several
grievances filed with respect to the employee discharges and alleged
violation of seniority rights. As noted, the Board then deferred
action on the 8(a) (3) and derivative 8(a) (1) allegations of the
complaint pending completion of the arbitration directed by the dis-
trict court, and notification thereof to the Board.
Pursuant to the district court's order and the Board's notice, the
Respondent and the Union proceeded with the arbitration. On Sep-
tember 26, 1963, the three-member arbitration panel issued its award.
In each grievance, except the third, which does not appear to be one
of the issues before the Board, the chairman supported the award,
but the other two panel members dissented on different grounds.
Subsequent to the arbitration award, the Charging Union moved that
the Board consider the 8(a) (3) aspects of these cases claiming that
the arbitration award was inconclusive and undeterminative in that
a majority of the panel did not agree on any decision. The Respond-
ent requested that the Board dismiss the 8(a) (3) allegations of the
complaint.
Although the intent of Congress is that the final adjustment of
grievance disputes be settled by a method agreed upon by the parties,4
Board policy cannot effectuate that congressional intent by recogniz-
ing as a fulfillment of the parties' contractual obligations an award
which does not contain a majority consensus. An award such as in-
volved herein, where no two panel members agree on any issue perti-
nent to our concern, appears to be too ambiguous to be recognized as
a definitive disposition of the grievance dispute, which is also alleged
to be an unfair labor practice. , Moreover, in view of the fact that
the arbitration panel considered only the validity of the discharges
as they related to the contract, the award could not in any event pre
elude the Board from considering the allegation of unfair labor prat=
tices. In view of the foregoing, even though the district court
'Labor Management Relations Act of 1947 , Section 203 ( d), 61 Stat. 154, 29 U.S.C.
173(d).
DUBO MANUFACTURING' CORPORATION 1117
specifically retained jurisdiction of the 'arbitration proceedings for
the purposes of enforcement, it does not appear to be an effective award
as to the issues before us. Thus, we do not regard the award of the
arbitration panel as controlling and find that the policies of the Act
require that the Board should now consider the alleged 8(a) (3)
aspects of the complaint in these consolidated cases.
The Trial Examiner found that Respondent discharged all 16 day-
shift employees because of their participation in the walkout of Jan-
uary 2, 1962, and that such walkout was concerted activity for mutual
aid and protection. In rejecting Respondent's contention that the
walkout violated a contractual agreement not to strike, the Trial Ex-
aminer found that the contract contained no express undertaking not
to strike. He further found that the doctrine in the Lucas Flour
case-under which the Supreme Court stated that it would imply the
existence of a no-strike clause where there appears a binding and
mandatory arbitration process in the contract-was distinguishable
from the instant case 5 The controlling distinction, as the Trial
Examiner saw it, was that in Lucas Flour the contract required sub-
mission of the dispute to arbitration, whereas here he found that
arbitration was not mandatory. In addition the Trial Examiner
found that even if the walkout be deemed unprotected, the Respond-
ent condoned any breach of contract involved in the walkout.
Accordingly, the Trial Examiner concluded that Respondent violated
Section 8(a) (3) and (1) of the Act by discharging its employees be-
cause of their participation in the walkout.
The Respondent filed exceptions to the foregoing findings and con-
clusions, contending, inter alia, that the evidence showed that the dis-
charges resulted because of the employees' insubordination and other
concerted activities for the purpose of forcing the dismissal of Super-
intendent Wise. Although we do not agree with this contention of
the Respondent, we otherwise find merit in its exceptions and -dis-
miss the complaint for the following reasons.
The issue in this case is whether the walkout was protected activity.'
If the walkout were protected activity, Respondent would be in viola-
tion of Section 8(a) (3) in discharging its employees for participating
therein. If, however, the walkout' were in violation of an agreement
not to strike, then it would be unprotected, and Respondent would be
within its rights in discharging the strikers. It appears that the walk-
out herein would be protected activity unless it is shown that it was in
violation of the collective-bargaining agreement.
c Local 174, Teamsters, Chauffeurs, Warehousemen k Helpers of America v. Lucas Flour
Co , 369 U S. 95.
s It was stipulated that the walkout was concerted activity.
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As noted, the contract here contains no express no-strike clause. It
did, however, contain a grievance and arbitration procedure clause.'
Article IX of the contract entitled "Adjudication of Disputes," re-
quires that both parties in settling disputes follow the grievance and
arbitration procedure set out in the contract. The phrase "negotia-
tions for settlement . . . shall be conducted in the following manner"
[emphasis supplied] suggests that the grievance and arbitration pro-
cedure is mandatory upon the parties, rather than permissive. Fur-
thermore, in ordering the Respondent to arbitrate the grievances filed
herein; the district court, which is a more appropriate forum in which
to adjudicate contractual arbitrability, impliedly determined that the
arbitration provisions are mandatory upon the parties. Moreover, the
Union, in filing suit to enforce, arbitration,•and the Respondent, in its
answer to such suit, nowhere disputed the enforceability of arbitra-
tion on the grounds that it was not mandatory. Not only does the
contract impose upon the parties the duty of submitting the dispute to
the grievance procedures and ultimate arbitration, it also states that
such resulting arbitration shall be "final and binding on both parties."
Under such circumstances, particularly the literal language of article
IX of the contract, we do not see how it can seriously be contended
that the arbitration process was other than mandatory.
The Supreme Court held in Lhccas Flour, supra, that if the griev-
ance and arbitration procedure in a collective-bargaining contract ex-
pressly imposes upon both parties the duty of submitting a dispute to
final and binding arbitration, then a strike to settle such dispute is a
violation of that contract. Finding as we do that the contract between
the Respondent and the Union 'contained a mandatory grievance and
arbitration procedure, it is clear that the Supreme Court doctrine in
Lucas Flour becomes applicable.' Therefore, in conformity with that
opinion and the facts in the instant case, we find that the walkout
7Article IX of the contract entitled "Adjudication of Disputes " provides:
Should differences arise between the Company and the Union , or any employee as to
the meaning or interpretation of any provision in this Agreement , or should a
grievance pertaining to hours , wage rates, or working conditions arise under the
terms of this contract , negotiations for settlement thereof shall be conducted in the
following manner . The Company shall have equal rights with the Union or em-
ployees to present grievances or disputes concerning any of the foregoing , and such
grievances shall be presented to the Union Grievance Committee
The contract then sets out a four -step grievance procedure The fifth step, which in-
volves arbitration , provides:
If settlement fails by the foregoing process the parties , by mutual agreement in
writing, may consent to hold the grievance for further consideration , but in the ab-
sence of such an agreement , in writing, the grievance of either the Company or the
Union will be considered as concluded , ended and terminated unless within five (5)
days the case is submitted by the parties to a Board of Arbitration
. . . The Arbitration Board so selected shall fix a hearing date , meet and consider
the complaint and render its decision which shall be final and binding on both parties,
and from which neither party shall have any right of appeal
8 Publishers ' A88ociation of New York City, et al ., 139 NLRB 1092.
WOOD, WIRE & METAL LATHERS, ETC., LOCAL 238 1119
herein was unprotected activity because it was in violation of the
collective-bargaining agreement providing for the settlement of dis-
putes exclusively and finally by compulsory arbitration. A decision
to the contrary would frustrate the basic policy of national labor legis-
lation which is to promote a peaceful arbitral process as a substitute
for an older regime of industrial conflict."
The Trial Examiner concluded, however, that Respondent condoned
any breach of contract involved in the walkout. Accepting the Trial
Examiner's finding of facts in this regard, we must disagree with his
conclusion that such conduct on the part of Respondent's labor rela-
tions consultant in demanding that the Union "get those men back to
work" warrants a finding of condonation. Condonation necessarily
contains the elements of foregiveness and an intention of treating the
employees as if their misconduct had not occurred. We find, contrary
to the Trial Examiner, no substantial evidence to support a finding of
employer condonation here.
In sum, we conclude that Respondent discharged the 16 employees
because they engaged in a walkout which was not protected by the
Act.10 Accordingly, we find that Respondent did not thereby violate
Section 8 (a) (3) and (1) of the Act.
[The Board dismissed the deferred Section 8 (a) (3) and 8 (a) (1)
allegations of the complaint.]
0 See United Steelworkers v. Warrior .& Gulf Nay . Co., 363 U . S. 574.
10 In view of our conclusion that Respondent did not violate the Act in discharging its
employees for engaging in an unprotected walkout, it follows that the threat to discharge
them for participating in such activity did not violate Section 8(a) (1) of the Act.
Accordingly , we dismiss the remaining Section 8(a)(1) allegations in the complaint.
See Dubo Manufacturing Corporation , 142 NLRB 812 , footnote 3.
On February 25, 1963, the Respondent filed a motion to consolidate the instant cases
with Case No. 8-CA-2882 , and that the Board consider the records of the three cases as
a whole and render its decision accordingly . Subsequent to the issuance of the Decision
and Order of May 17, 1963 , disposing of the 8 ( a) (5) and ( 1) allegations in this proceed-
ing, the Respondent renewed its motion to consolidate , and requested that the complaints
be dismissed in their entirety . As it appears that the complaint in Case No . 18-CA-2882
alleges new unfair labor practices which may properly be litigated in that case , the mo-
tions to consolidate are hereby denied. See General Tire and Rubber Company, 135
NLRB 269.
Wood, Wire, and Metal Lathers International Union , Local No.
238, AFL-CIO and Fiberglas Engineering & Supply Division,
Owens-Corning Fiberglas Corporation . Case No. 28-CD-54.
September 16, 1964
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10(k) of the Act follow-
ing charges under Section 8(b) (4) (D) of the Act filed by Fiberglas
148 NLRB No. 110.