Gary-Hobart Water Corp.

National Labor Relations Board - Board Decisions

May 21, 1974

210 N.L.R.B. 742 (N.L.R.B. 1974)

742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gary-Hobart Water Corporation and International
Union of District 50, Allied and Technical Workers
of the United States and Canada. Cases
13-CA-10699 and 13-CA-11077
briefs, the motion for further consideration, the
Respondent's response to the Board's Notice To
Show Cause, and the Charging Party's reply, and
finds as follows:
May 21, 1974
SUPPLEMENTAL DECISION AND
ORDER
On June 16, 1972, Administrative Law Judge Lloyd
Buchanan issued the attached Decision in this
proceeding in which he recommended the complaint
be dismissed in its entirety. Thereafter, the General
Counsel and the Charging Party filed exceptions and
supporting briefs and the Respondent filed an
answering brief.
On November 30, 1972, the Board1 found that,
since the resolution of the threshold issue (whether
the no-strike clause of the grievance procedure of the
collective-bargaining agreement protected the sym-
pathy strike of the clerical unit) turns on the meaning
and application of the no-strike clause, and the
alleged unfair labor practices are so intimately
intertwined with the interpretation of the contract, it
would best effectuate the policies of the Act to defer
to arbitration. The Board, however, retained jurisdic-
tion for entertaining "an appropriate and timely
motion for further consideration upon a proper
showing that (a) the dispute has not, with reasonable
promptness after issuance of this decision, either
been resolved by amicable settlement in the griev-
ance procedure, or submitted to arbitration...."
Thereafter, the Charging Party filed a motion for
further consideration, alleging Respondent has ref-
used to resolve the issues in dispute by settlement
under the grievance procedure or by submission to
arbitration, and requested that the Board decide the
case on the merits. On June 25, 1973, the Board
issued a Notice To Show Cause why it should not
proceed to consider the case on the merits. Thereaft-
er, the Respondent filed a response to the Board's
Notice To Show Cause, and the Charging Party filed
a reply to Respondent's response.
The Board has considered the record, the Adminis-
trative Law Judge's Decision, the exceptions and
i Gary-Hobart Water Corporation, 200 NLRB No. 98, Member Fanning
dissenting.
2 For the reasons stated in their dissenting opinions in Collyer Insulated
Wire, 192 NLRB 837, and subsequent cases, Members Fanning and Jenkins
would not, in any event, have deferred to arbitration but would have
decided the case on the merits (See Member Fanning's dissent in 200
NLRB No. 98.)
3 See The Detroit Edison Company, 206 NLRB No. 116.
As part of its untimeliness contention , Respondent argues that when the
Respondent ordered the clerical employees to return to work they should
have followed that order and filed a grievance even if they believed the
Respondent 's interpretation of the no-strike clause was erroneous, i.e.,
"grieve and obey " Respondent contends that a logical extension of Collyer
210 NLRB No. 87
1. On deferral
In view of the Respondent's refusal to go to
arbitration to resolve the issues in dispute, the Board
unanimously finds this case should be decided on the
merits.2 In its response to the Board's Notice To
Show Cause, the Respondent, in essence, contends
that the Charging Party's request for arbitration was
untimely under the contract. However, the Board's
deferral in 200 NLRB No. 98, was based on the
assumption that Respondent was willing to take the
dispute through the grievance procedure and ulti-
mately to arbitration if necessary.3 Accordingly, in
view of Respondent's refusal to go to arbitration, we
will decide the issue on the merits.
2. The merits
The Respondent furnishes water to the residents
and business facilities of Gary, Hobart, and the
surrounding areas. Its employees are represented by
two different locals of the Charging Party (or
Union)-the so-called men's, or p & m, unit by Local
12584 and the so-called women's, or clerical, unit by
Local 14321. The clerical unit, with which we are
concerned herein, was certified by the Board on
September 1, 1968. On April 1, 1969, after a strike
which lasted from March 21 to April 1, 1969, the
clerical unit and Respondent entered into a collec-
tive-bargaining agreement for the period April 1,
1969, to December 31, 1971. During that strike, 70 of
the 97 p & in unit employees honored the clerical
unit's picket line. Both units returned to work on
April 1, 1969. Although the Respondent prior to
April 1, 1969, by letters to the p & m unit and the
individual members of the unit, had warned of
possible action against the members of the unit,
citing the no-strike provision of the contract, no
action was taken against the employee-members who
engaged in the sympathy strike. In fact, the same no-
strike provision 4 (the interpretation of which is in
issue herein) of the p & in unit's contract was
dictates that since the Union did not "grieve and obey" the case should not
have been deferred to the gnevance -arbitration procedure but dismissed
without reaching the merits We find no merit in this contention , which, in
our opinion , goes far beyond the principles underlying our deferral policy as
set forth in Collyer
Respondent contends that its position with respect to deferral has been
the same from the beginning of this proceeding , if so, it certainly was not
our understanding of Respondent 's position, nor, we might add, that of the
Administrative Law Judge , the General Counsel, or the Charging Party.
4 That no-strike , no-lockout provision is included in the grievance
provision of the contract and reads in pertinent part as follows-
ARTICLE V
Grievances
GARY-HOBART WATER CORPORATION 743
included in the clerical unit's contract of April 1,
1969.
On June 1, 1971, after its June 18, 1968, to May 31,
1971, contract expired, the p & in unit engaged in an
economic strike, the validity of which is not in
question. The clerical employees (33 of 34) chose to
honor the p & in unit's picket line. On June 3,5 the
Respondent, by letters to the clerical local's officers
and the individual clerical unit employees, indicated
it considered the sympathy strike a violation of the
no-strike clause, directed all clerical employees to
report to work by June 7, and warned of possible
termination for failure to do so.
On June 9, during negotiations with the p & in unit
for a new contract, in addition to an economic
proposal, Respondent submitted for signature by the
Charging Party and both locals a memorandum of
agreement which stated in part:
From and after June 11, 1971, the Union
recognizes that in view of the fact that the
Employer is a public utility, the no-strike clause
affords no protection except the grievance proce-
dure, to employees who fail or refuse to cross
picket lines around the Company premises or
operations, or operations of customers, whether
legal or illegal, or fail or refuse to work for any
other reason; and furthermore, the Union agrees
that it will not intimidate or punish or fine any
member who crosses or desires to cross a picket
line around such company or premises when the
bargaining unit to which the employee belongs is
not subject to strike.
Louis, the Respondent's president, submitted this
proposal because "Respondent had been having
trouble with one local honoring the other's picket
line, that it had the problem now, and expected it
again in the future." Louis said he felt the Respon-
dent had to have this agreement to clear the problem
up; the Union rejected the proposal.
On June 17, the Respondent, by letter, notified
each of the clericals that her employment had been
terminated for breach of the no-strike clause. The
Union filed a charge with the Board on June 21,
1971, alleging the discharges were violative of the
Act. The strike continued with the terminated
clericals joining the p & in unit in active picketing.
On July 20, at a negotiating session with the p & in
unit, Respondent proposed the following provision:
As a part of the settlement of the contract
negotiations between the Company and District
50, Allied and Technical Workers, and its
members, it is agreed that the wording of Article
V of the contract between the parties dated
[6/18/68] (and of the same wording as incorpo-
rated in the new contract now being negotiated)
prohibits any and all work stoppages, strikes,
slowdowns, or observances of picket lines from
and after June, 1971. (The parties remain in
disagreement as to the proper interpretation of
that wording prior to that date.)
The Respondent's counsel, Dougherty, noted again
the problem Respondent had had, and was having,
with one local honoring the other's picket line, and
that it had to be cleared up once and for all. The
proposal was rejected by the Union.
On August 18, the Charging Party sent the
following telegram to the Respondent:
In response to and in compliance with President
Nixon's request for a stoppage to strikes and
lockouts. until Nov. 12, 1971, the members of
Local 13584 and 14321 of District 50, A.T.W., in
this time of national emergency feel it is their
patriotic duty and responsibility to cooperate with
the President for the welfare of our country;
therefore, we will return to work immediately.
Suggest meeting at once to work out details.
Respondent, by telegram, on August 19, replied in
pertinent part to the clerical unit:
... we are unwilling to engage in any simulta-
neous or joint discussions with both locals. Each
represents a wholly separate and distinct bargain-
ing unit, and the locals are in totally different
situations. The operating (p & m) local has been
engaged in a legal strike with us. . . . The
members of the clerical unit have been engaged in
unprotected and illegal activities, have been
It is expressly understood and agreed that the services to be and
being performed by the employees covered by this agreement pertstn to
and are essential to the operation of a public utility and to the welfare
of the public dependent thereon , and in consideration thereof, and of
the agreement and conditions herein by and between the Company and
the Union mutually agree that during the term of this agreement there
shall be no lockouts by the Company and there shall be no strike,
stoppages of work or any other form of interference with any of the
production or other operations of the Company by the Union or its
members, and any and all disputes and controversies arising under or
in connection with the terms of provisions hereof shall be subject to the
grievance procedure hereinafter set forth if the grievance is filed within
ninety (90) days of the occurrence.
Thereafter, the provision provides a three -step grievance -arbitration
procedure resulting in binding arbitration under the third step.
In addition, the contract provides a catch-all "Effectiveness" provision
(art. XVII) which reads in part:
(2) The Union agrees there shall be no strikes , slowdowns or other
interruptions of work by any of its members during the term of the
agreement , and both parties agree that any disputes or differences shall
be taken up under the Grievance and Arbitration procedures of this
agreement.
5 Unless otherwise indicated all dates hereafter are 1971.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged, and are not entitled to return to work.
We are willing to meet with representatives of the
operating local to discuss the details of a return to
work at your earliest convenience. We will be
willing to consider meeting with representatives of
the clerical local if we are informed what topics
are to be discussed... .
Nonetheless, a joint meeting (both locals) was held
with Respondent on August 24. Katz, the union
attorney, opened the meeting by saying he wanted to
work out the details of the clerical unit's returning to
work; the Respondent replied that there was nothing
to talk about as they were fired. Pilzer, Respondent's
vice president, corroborated Katz' testimony. Later
in the meeting (the context of the latter discussion is
not clear on the record), Mandich, the clerical unit's
chief steward, according to her testimony on direct,
told Respondent, "We want to go back to work."
Pilzer testified Mandich said, "We will go back to
work with the men." President Louis testified
Mandich said "that she would like to have the
clerical workers go back with the men." On cross-
examination, Mandich testified she said, "We will go
back to work with the men." The p & m unit
returned to work on August 30.
On September 14, the Union filed a grievance on
behalf of the clerical unit employees who had been
terminated which was signed by all of the terminated
clericals, citing the unjust discharges of June 17 and
requesting immediate reinstatement. This grievance
was denied by President Louis on the grounds that
the clerical employees had engaged in unprotected
activity and had been discharged.
On October 27, the Respondent wrote the Union as
follows:
This is to inform you that this company termi-
nates its labor agreement with . . . [Local 14321 ]
... executed as of [4/1/69], effective .. .
[12/31/71 ], although we believe that the contract
has already been terminated by your organization
and members by operation of law. . . . As
matters now stand, the Company has 30 en-oloy-
ees in the bargaining unit which Local 14321
formerly represented, of whom only one as far as
6 The Charging Party did not claim it represented the terminated
clericals' replacements . In fact it was stipulated that since August 15 very
few of the clericals employed by Respondent have been members of the
Union.
7 N.L.R B. v Erie Resistor Corp., 373 U.S. 221 (1963), N.L.R.B. v.
Southern Greyhound Lines, Division of Greyhound Lines, Inc., 426 F.2d 1299
(C.A. 5, 1970); N L R. B. v Difco Laboratories Inc., 427 F.2d 170 (C.A. 6,
1970); N.LR.B v. Peter Cailler Kohler Swiss Chocolates Company, Inc., 130
F.2d 503 (C.A. 2, 1942). See also Sec 13 of the Act itself which states:
Nothing in this subchapter, except as specifically provided for herein,
shall be construed as either to interfere with or impede or diminish in
any way the right to strike , or to effect limitations or qualifications on
we know is a member of your organization... .
It is readily apparent that you no longer represent
a majority of the employees now working in the
bargaining unit.
On October 29, the Union , pursuant to Section 8(d)
of the LMRA , requested Respondent meet with it to
bargain over modification in the clericals' contract;
on November 10, the Union followed up its October
29 letter to which it had received no reply and again
requested bargaining . The Union also asked if the
Respondent 's October 27 letter meant that it would
not bargain with the Union ; by letter of November
11, Respondent refused to meet with the Union for
the reasons it had set forth in its October 27 letter.
On the merits , the Administrative Law Judge
interpreted the grievance procedure of the contract
which includes the no-strike provision and found
that the clerical unit 's sympathy strike was unpro-
tected, that the discharge of the striking clerical unit
employees was therefore lawful , and that as a result
the terminated clericals were no longer employees.
He dismissed the 8 (a)(3) allegations. Since the
refusal-to-bargain aspect of the case depends on the
validity of the discharges,6 he likewise dismissed the
8(a)(5) allegations. We do not agree.
It is fundamental that the right to strike is
guaranteed by the NLRA .7 This right is protected by
law, whether the strike be for economic reasons, for
the purpose of improving working conditions, or for
mutual aid and protection of employees of members of
another union . Thus, the right to engage in a
sympathy strike or honor another union's picket line
is also protected . However, the right to strike,
including the right to engage in sympathy strikes or
to refuse to cross another union 's picket line, may be
waived by appropriate provisions in a collective-
bargaining agreement.8
While statutory rights may be waived , however, the
Board and the courts have repeatedly emphasized
that such waivers will not be readily inferred, and
there must be a clear and unmistakable showing that
waiver occurred .9 And the principle that the waiver
of statutory rights must be clear and unequivocal
applies to the right to strike, including the right to
that right.
8 Mastro Plastics Corp and French American Reeds Manufacturing
Company v . NL.R.B., 350 U.S. 270 (1956). N.L.R.B. v. Rockaway News
Supply Company, Inc, 345 U S. 71 (1953). In Rockaway News, the Supreme
Court indicated that the Act does not preclude a collective-bargaining
provision which permits employees to refuse to cross a picket line of another
union , nor does it prohibit the parties from agreeing on a provision which
prohibits employees from crossing another union 's picket line.
9 The Timken Roller Bearing Co . v. N.LR . B., 325 F .2d 746 (C.A. 6, 1963),
cert. denied 376 U.S. 971 (1964 ); Rockwell-Standard Corporation, Transmis-
sion and Axle Division, Forge Division , 166 NLRB 124, enfd . 410 F.2d 953
(C.A. 6, 1969); Beacon Piece Dyeing and Finishing Co., Inc., 121 NLRB 953;
The Fafnir Bearing Company, 146 NLRB 1582.
GARY-HOBART WATER CORPORATION 745
engage in a sympathy strike or to honor the picket
line of another union.10 As the Supreme Court in
Mastro Plastics, supra, 283, stated in a slightly
different context.
To adopt petitioners' all-inclusive interpreta-
tion of the clause is quite a different matter. That
interpretation would eliminate, for the whole
year, the employees' right to strike. . . . Whatev-
er may be said of the legality of such a waiver
when explicitly stated, there is no adequate basis
for implying its existence without a more compel-
ling expression of it than appears in . . . this
contract. [Emphasis supplied.]
With the foregoing in mind we turn to a considera-
tion of the no-strike clause in this case. The General
Counsel and Charging Party contend that the waiver
of the right to strike is only as extensive as the scope
of the grievance and arbitration procedure of the
contract in question. They argue that when the
subject of the dispute is not cognizable under the
grievance-arbitration procedure the quid pro quo for
the no-strike clause is no longer present and the no-
strike clause does not apply. We agree. The Board"
and the courts,12 including the Supreme Court, have
indicated no-strike provisions will not be enforced
where the subject of the dispute is not covered by the
grievance-arbitration procedure. The Supreme Court
has spoken to the issue primarily in suits under
Section 301 of the Act. In Local 174, Teamsters,
Chauffeurs, Warehousemen & Helpers of America v.
Lucas Flour Co., 369 U.S. 95, 105 (1962), the Court
said that "a strike to settle a dispute which a
collective bargaining agreement provides shall be
settled exclusively and finally by compulsory arbitra-
tion constitutes a violation of the agreement."
However, it added that such a no-strike agreement is
not to be implied "beyond the area which has been
agreed will be exclusively covered by compulsory
arbitration." Likewise, in Boys Market, Inc. v. Retail
Clerks Union, Local 770, 398 U.S. 235, also a Section
301 injunction suit, Justice Brennan, for the majority,
in discussing when a strike should be enjoined by a
district court, stated that a strike would be enjoined
(unprotected) only if "over a grievance which both
parties are contractually bound to arbitrate." And in
the Supreme Court's most recent pronouncement on
the scope of an arbitration provision, again in a
Section 301 context (Gateway Coal Co. v. United
Mineworkers of America, et al., 410 U.S. 953 (1973),
the Court stated, "No obligation to arbitrate a labor
dispute arises solely by operation of law. The law
compels a party to submit his grievance to arbitra-
tion only if he has contracted to do so." 13
The Administrative Law Judge found the instant
case distinguishable from Montana-Dakota and
Kellogg because in those cases the application of the
no-strike clause was specifically limited to disputes
covered by the grievance procedure,14 whereas here
the no-strike language is not so limited or made
dependent on the grievance provision. He further
indicated that he could not discern how a contract
could be drawn to cover more clearly all employee
concerted activity and to forbid strikes and work
stoppages.15
The Administrative Law Judge further points out
that to accept the Charging Party's contention that
the clericals could not air their grievances since they
were striking because of the p & in unit's activities, a
dispute outside the coverage of their contract, would
permit a strike despite a comprehensive no-strike
provision whenever a dispute related to any point not
covered by their contract. This, in our opinion, is
precisely where the Administrative Law Judge errs,
for the no-strike clause is not comprehensive but
limited to disputes arising under the contract. And at
least where statutory rights are involved, unless they
are specifically waived, the contracting union does
have the right to strike in connection, with a dispute
not subject to grievance-arbitration, for the no-strike
clause is only as extensive as the grievance-arbitra-
tion procedure.
Nowhere in the contract does the Union specifical-
ly waive the right to honor another union's picket
line. The waiver, if any, must be implied; however,
the waiver of statutory rights is not lightly to be
inferred. The strike by the clerical unit was not over a
grievance which the parties were contractually bound
10 Montana-Dakota Utilities Co, 189 NLRB 879 (Member Kennedy
dissenting), enforcement denied 455 F 2d 1088 (C A. 8, 1972); Kellogg
Company, 189 NLRB 948 (Member Kennedy dissenting), enfd. 457 F 2d 519
(C.A. 6, 1972); Hoffman Beverage Company, 163 NLRB 981
ii See Montana-Dakota and Kellogg, supra.
12 See the sixth circuit decision in Kellogg, supra
13 While the Court found the strike in Gateway unprotected it did so on
the basis of the very broad arbitration clause included in the contract which
governed disputes "as to the meaning and application of the provisions of
this agreement," disputes "about matters not specifically mentioned in this
agreement," and "any local trouble of any kind aris[ing] at the mine"
14 In Montana -Dakota, the no-strike provision provided that "there shall
be no collective cessation of work . . . on account of any controversy
respecting the provisions of" the agreement. In Kellogg, the no-stnke
provision prohibited strikes "in connection with disputes arising hereun-
der."
is Nonetheless, the contract is ambiguous and unclear respecting its
application to sympathy strikes. It could have been made clear , unambigu-
ous, and comprehensive with the addition of a provision stating that it
barred sympathy strikes or the honoring of another union's picket line In
this regard , we note that such clauses are common in collective -bargaining
contracts. For example, such "sympathy strike " clauses were included in the
contracts in both Montana-Dakota and Kellogg although they were limited
in nature Likewise, the extended no-strike proposals offered by the
Respondent on June 9 and July 21, 1971, were specifically intended to
clarify the contract so as to bar sympathy strikes or the honoring of another
union's picket line. It is thus obvious, contrary to the Administrative Law
Judge's conclusion, that the no -strike clause could have been both more
clear and comprehensive.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to arbitrate. Rather, the strike itself precipitated the
dispute-the validity under the Union's no-strike
obligation of the employee-members honoring the p
& in unit's picket line. Put differently, the dispute
was between the p & in unit and the Respondent and
therefore not resolvable under the clerical unit's
grievance procedure.
It is our opinion that the no-strike, no-lockout
promise was intended to be in effect only when the
dispute between the parties is covered by and can be
resolved by the grievance machinery. Here the no-
strike, no-lockout provisions are not only included in
the opening paragraph of the grievance provision but
are part of the same sentence which sets up the
grievance machinery and limits it to "all disputes and
controversies arising under or in connection with the
terms . . . hereof." Indeed, it is difficult to imagine a
placement of the no-strike provision which would
delineate more clearly or emphatically that the no-
strike promise does not stand alone but is part of,
and only as extensive as the scope of, the grievance
machinery.16 Both times17 that the no-strike lan-
guage appears the grievance language immediately
follows. It is our opinion that the Union pledged no-
strike only over matters which Respondent agreed to
arbitrate.
In addition, we believe our finding is buttressed, as
in Kellogg, by additional evidence which shows that
the parties' intent was unclear with respect to what
the no-strike provision actually covered.18 In these
circumstances, the fact that Respondent attempted,
without success, to broaden the no-strike clause to
cover "sympathy strikes" on both June 9 and July 21
becomes significant.19 For the Supreme Court in
Rockaway News, and the Board in Hearst, in holding
sympathy strikes unprotected, relied on the fact that
during contract negotiations the unions involved had
sought to include a provision expressly permitting
employees to honor picket lines of another union,
which proposals were rejected by the respective
employers. Based on the rationale that by attempting
to obtain such no-strike limitations the unions
therein indicated they believed they did not have
such picket line rights under the respective no-strike
16 In this connection, we consider this case even stronger than Montana-
Dakota and Kellogg since in those cases the no-strike provisions were
Included in separate sections of the contracts involvei
17 Subsec. 2 of art. XVIII, the "Effectiveness" provision, in no way alters
our opinion, for that article merely refers back to art. V, the grievan-e
procedure; it does nothing to change what is included in that article or the
standards adopted therein.
la In Rockaway News, supra, the Supreme Court indicated that, where a
no-strike clause is ambiguous , extrinsic evidence may be considered to
determine the intent of the parties And in The Hearst Corporation, News
American Division, 161 NLRB 1405, a much broader no- strike provision was
considered ambiguous and the Board found the consideration of extrinsic
evidence appropriate to clarify the intent of the parties . (See discussion in
Kellogg, supra.)
19 Kellogg, supra, is right on point for there the Board relied on the fact
clauses, the Court and Board respectively found the
no-strike provisions should be broadly construed.
Here we have the situation, as in Kellogg, which is
,he converse of Rockaway and Hearst, where the
Respondent, not once but twice, sought to include a
provision removing the employees' right to honor
another union's picket line. By such conduct the
Respondent demonstrated its uncertainty as to
whether it had obtained a waiver of the right to
engage in a sympathy strike in the no-strike clause it
sought to change. The Union, on the other hand, by
rejecting the proposed changes demonstrated its
determination not to waive the right to honor
another union's picket line.20
The Board has held in cases involving sympathy
strikes, although primarily when the activity was
engaged in at the premises of another employer, that
although the refusal to cross the picket line of
another union is protected this right must be
balanced against the business interest of the employ-
er, and that it is only when the employer 's business
interest to replace employees is such as clearly to
outweigh the employees' protected right that an
invasion of the statutory right is justified (Redwing
Carriers, Inc., 137 NLRB 1545; Overnite Transporta-
tion Co., 154 NLRB 1271). The termination of
employees is justified where the employer "acted
only to preserve efficient operation of his business,
and terminated the . . . employees only so it could
immediately or within a short period thereafter replace
them . . . ." (Redwing Carriers, supra, 1547.) (Em-
phasis supplied.) Respondent has not met the
Redwing test. It is clear that the terminations were
not to preserve Respondent's efficient operations but
were punitive in nature. Respondent's president
testified the employees were discharged for breach of
the no-strike clause; their termination letters were to
the same effect. No one contends that the employees
were replaced on June 17, 1971, the date of
termination. In fact, 2 months after the discharges,
fewer than 6 of the 34 discharged employees had
been replaced. Respondent neither seriously argued
nor proved by way of evidence that the terminations
that the employer had attempted after the discharges to obtain an
agreement to modify the no-strike provision to specifically ban the right to
honor the picket line of another union as evidence that the employer , itself,
viewed the no-strike prohibition as a narrow ban on strike activity.
20 The Administrative Law Judge rejected the General Counsel's and
Charging Party's contention that Rockaway and Hearst supported the
clerical unit's position Instead , he found that those cases placed the
Charging Party in an even weaker position because the Charging Party here
did not propose a clause exempting sympathy strikes. The Administrative
Law Judge misses the point . The General Counsel and Charging Party were
arguing that the Rockaway rationale applied to Respondent 's attempt to
modify the no-strike clause . Unless it specifically waives it , the Charging
Party has the right to honor picket lines. It is the Respondent which must
obtain contractual language to limit such right in clear and unmistakable
terms.
GARY-HOBART WATER CORPORATION 747
were necessary so that replacements could be
obtained.
We therefore find that the Union had not waived
the right of the clerical unit to observe the picket line
of another union, that the action of the terminated
clerical employees was not in violation of the
applicable no-strike clause, but rather was protected
concerted activity, and that Respondent's action in
discharging these employees was violative of Section
8(a)(1) and (3) of the Act.
The Administrative Law Judge, as a contingency
finding, found the clerical employees' offer to return
to work was conditioned on the clerical unit's
returning with the men's unit. In so finding, he
ignored most of the relevant evidence on this point
and relied only on the testimony of the clerical unit's
chief steward, Mandich. We do not agree with his
finding. After the clericals were terminated on June
17, they were unfair labor practice strikers and no
offer to return was necessary.21 It was up to
Respondent, which had terminated the employees, to
request that they return to work.
Moreover, the clerical unit, in our opinion, made
an unconditional offer to return. First, such an offer
was made on August 18 by telegram. Then, the union
attorney opened the August 24 meeting by indicating
he wanted to work out the details of the girls'
returning to work, to which Respondent replied that
there was nothing to talk about as they were fired.
The Board does not require parties to engage in futile
acts.22 It was only later in the August 24 meeting that
Mandich allegedly said "she would like to have the
clerical workers go back to work with the men." The
Administrative Law Judge relied on this testimony
elicited on cross-examination to find the offer
conditional although the record does not show what
the parties were discussing at that stage of the
meeting or in what context the statement was
made.23 Finally, the Union in its September 14
grievance, which was signed by all the clericals, not
only protested the discharges but requested immedi-
ate reinstatement. In our opinion, the clerical unit's
request was unqualified, but even if the so-called
qualification existed it was met on August 30 when
the p & in unit returned to work. We therefore find
that the unlawfully terminated clericals were entitled
to reinstatement as of August 30, 1971, when the
strike ended and the p & m unit returned to work.
The Administrative Law Judge found the refusal-
to-bargain allegation depends on the validity of the
21 See Montana -Dakota, supra; Kellogg Company, supra , Southern
Greyhound Lines, Division of Greyhound Lines, Inc, 169 NLRB 627, enfd
426 F .2d 1299 (C.A. 5, 1970).
2s Id
is The Administrative Law Judge acknowledged, in discussing the
alleged statement testified to by President Louis, that Louis did not attempt
discharges. Having dismissed the 8(a)(3) allegations,
he therefore dismissed the 8(a)(5) allegations.24
Since, contrary to the Administrative Law Judge, we
have found the discharges violative of Section 8(a)(1)
and (3) of the Act, it follows that the terminated
clericals remained employees within the meaning of
Section 2(3) of the Act and the Union's majority
status continued. Respondent by letter of November
II refused the Union's request to meet and bargain
over modifications in the clerical unit's contract. It
therefore refused to bargain with the Union in
violation of Section 8(aX5) of the Act, and we so
find.
THE REMEDY
We have found, contrary to the Administrative
Law Judge, that Respondent engaged in certain
unfair labor practices in violation of Section 8(a)(3)
and (1) of the Act by discharging Belita Askew, Mary
K. Boby, Rosan Bolint, Alan Butkus, Margaret
Clifford, Allen Cozad, James DeSmith, Janice
Fugate, Joyce Goszewski, Judith Harper, Michele
Huerter, Suzanne Joy, Geraldine King, Shirley
Lewis, Anice Little, Arlene Mandich, Myrtle Mur-
phy, Sharon Mullinix, Beverly Neyhart, Addie Nunn,
Kay O'Brien, Deborah Richardson, Edward Ryczaj,
Barbara Schawilje, Marsha Shear, Barbara Sherman,
Barbara Smith, Judith Stanik, Barbara Steele, Con-
stance Taylor, Bettye Turner, Paula Wilson, Helen
Wineinger, and Linda Sue Winston for engaging in
protected activities. In our opinion, it is necessary in
order to effectuate the purposes of the Act that
Respondent be ordered to cease and desist from
engaging in such unfair labor practices and to
reinstate these employees to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, with backpay. The strike having terminat-
ed on August 29, 1971, and Respondent having failed
to offer the discriminatees reinstatement, we shall
order Respondent to make these employees whole
for their loss of earnings by payment to each of them
a sum which they normally would have earned on
and after August 30, 1971, the day the p & m unit
returned to work, to the date Respondent offers them
reinstatement, less their net earnings for that period.
See Southern Greyhound Lines, Division of Greyhound
Lines, Inc., 169 NLRB 627; Kellogg Company, 189
NLRB 948. Backpay shall be computed in the
manner set forth in F. W. Woolworth Company, 90
to detail the discussion or Mandrich's part in it.
24 Respondent admitted that the Union was the certified bargaining
representative and that , prior to June 17, it represented a majority of the
clerical unit employees. By stipulation , the parties in essence agreed that the
refusal-to-bargain aspect of the case depends on the validity of the
discharges.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NLRB 289, with interest added thereto as set forth in
Isis Plumbing & Heating Co., 138 NLRB 716.
In addition, having found that Respondent has
engaged in unfair labor practices in violation of
Section 8(a)(5) and (1) of the Act by refusing to
bargain with International Union of District 50,
Allied and Technical Workers of the United States
and Canada, and its designated agents as the
exclusive representative of its employees in the so-
called clerical unit represented by Local 14321 of the
International, we will order that the Respondent
cease and desist from engaging in such unfair labor
practices and, upon request, bargain collectively with
the Union and its designated agents concerning
wages, rates of pay, hours, and other terms and
conditions of employment, and, if an understanding
is reached, embody such understanding in a signed
agreement.
CONCLUSIONS OF LAW
1. Gary-Hobart Water Corporation is an employ-
er engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Union of District 50, Allied and
Technical Workers of the United States and Canada,
is a labor organization within the meaning of Section
2(5) of the Act.
3. At all times since September 5, 1958, the Union
has represented a majority of the employees of
Respondent in the following appropriate unit:
All office and clerical employees including
record clerks and engineering clerks, engineering
estimators and draftsmen, but excluding all
production and maintenance employees, office
janitress, confidential employees, temporary em-
ployees, professional employees, guards, and
supervisors as defined in the Act.
4. By discharging the clerical unit employees
listed above in the section entitled "The Remedy" for
engaging in protected concerted activity Respondent
has interfered with, restrained, and coerced employ-
ees in the exercise of rights guaranteed by Section 7
of the Act and discriminated in regard to hire,
tenure, and other conditions of employment in order
to discourage membership in the Union in violation
of Section 8(a)(1) and (3) of the Act.
5. By terminating its agreement with the Union
and refusing since October 27, 1971, to bargain with
the Union as exclusive representative of the employ-
ees in the above-described appropriate unit, Respon-
dent has engaged in and is engaging in unfair labor
25 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
6. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Gary-Hobart Water Corporation, Gary , Indiana, its
officers , agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Interfering with, restraining, and coercing
employees in the exercise of rights guaranteed in
Section 7 of the Act and discriminating in regard to
hire, tenure, and other conditions of employment in
order to discourage union membership by discharg-
ing employees because they engaged in protected
concerted activities.
(b) Refusing to bargain collectively with the Union
and its designated agents as the exclusive representa-
tive of its clerical unit employees with respect to rates
of pay, wages, hours of employment, and other terms
and conditions of employment.
(c) In any other manner interfering with, restrain-
ing, and coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action:
(a) Offer to the employees listed in The Remedy
section of this Decision immediate and full reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay
which they may have incurred by reason of Respon-
dent's discrimination against them in the manner
described above in The Remedy.
(b) Upon request, meet and bargain with the
above-named labor organization and its designated
agents as exclusive representative of all its employees
in the aforesaid appropriate unit with respect to
wages, rates of pay, hours of employment, and other
terms and conditions of employment and embody in
a signed agreement any understanding reached.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its place of business in Gary , Indiana,
copies of the attached notice marked "Appendix." 25
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
GARY-HOBART WATER CORPORATION 749
Copies of said notice , on forms provided by the
Regional Director for Region 13, after being duly
signed by Respondent 's representative , shall be
posted by Respondent immediately upon receipt
thereof , and be maintained by it for 60 consecutive
days thereafter , in conspicuous places , including all
places where notices to employees are customarily
posted . Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
CHAIRMAN MILLER AND MEMBER KENNEDY, concur-
ring in part and dissenting in part:
We agree that in view of Respondent 's refusal to go
to arbitration that this case should be decided on the
merits.
The basic issue on the merits is whether the no-
strike clause in the collective-bargaining agreement
covering the clerical employees is, as the Administra-
tive Law Judge found, a clear and unambiguous
prohibition against all strikes during the contract
term or whether it is sufficiently ambiguous, as our
colleagues in the majority find, so as to require resort
to extrinsic evidence to determine its intent. We
believe the Administrative Law Judge was correct in
finding the clause to be clear and unambiguous.
The relevant provisions are set out in footnote 4 of
the majority opinion herein. It will be noted that in
two places a no-strike pi°dge appears. In the first, the
pledge is that ". . . there shall be no strike, stoppages
of work or any other form of interference with any of
the production or other operations of the Company
by the Union or its members. . . ." In the second,
the pledge is that "there shall be no strikes,
slowdowns or other interruptions of work by any of
its members during the term of the agreement...."
In our view, all of the cases cited by the majority in
reaching a contrary conclusion are, as the Adminis-
trative Law Judge found, inapposite. As he correctly
pointed out, the contract clauses in Montana-Dakota
Utilities Co., 189 NLRB 879, and Kellogg Company,
189 NLRB 948, differed from the contract clause
here in that in those cases the no-strike clause was
limited to strikes over disputes arising out of
contractual grievances.
The majority reaches out for other cases in which
the contracts were even less like the one here. Thus in
both the Lucas Flour and Gateway Coal cases cited in
the majority opinion there were no no-strike provi-
sions at all, and the issue was whether one should be
inferred by virtue of a broad grievance and arbitra-
tion provision. Boys Market, Inc., also referred to by
the majority, of course did not concern itself with the
issue here at all since the court there was speaking to
the issue of the appropriateness of injunctive relief
and the proper application of the Norris-LaGuardia
Act to suits for injunctions against breach of no-
strike agreements.
The Hearst Corporation, News American Division,
161 NLRB 1405, is equally off point, since there too
the two contract clauses in issue were both specifical-
ly limited in their application , and prohibited strikes
only as to disputes which were in the course of being
resolved under the grievance and arbitration provi-
sions of the applicable grievance procedure.
The comment of the Administrative Law Judge, as
he reviewed some of the above cases which were
cited to him by Respondent , seems very appropriate:
As much, or little , can be said of other cases
cited: different cases , different provisions, differ-
ent conclusions.
Unlike the majority, we are unable to find any
basis for construing the plain words of this agree-
ment pledging no strike or other interference with
production and no interruptions of work during the
term of the agreement to be in any way limited to
specific kinds of strikes , stoppages, or interruptions
-i.e., strikes or interruptions of work relating solely
to disputes arising under the contract.
The sympathy strike of the clerical employees here
was in our view in breach of the plain terms of their
labor agreement and therefore constituted unprotect-
ed activity. We would affirm in its entirety the
decision of the Administrative Law Judge and adopt
his recommended Order dismissing the complaint.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with, restrain , or coerce
employees in the exercise of rights guaranteed in
Section 7 of the National Labor Relations Act by
discharging or otherwise discriminating against
them because of their protected concerted activi-
ties.
WE WILL NOT in any other manner interfere
with, restrain , or coerce employees in the exercise
of rights guaranteed to them by the Act.
WE WILL offer Belita Askew , Mary K. Boby,
Rosan Bolint , Alan B. Butkus , Margaret Clifford,
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Allen Cozad, James DeSmith, Janice Fugate,
Joyce Goszewski, Judith Harper, Michele Huert-
er, Suzanne Joy, Geraldine King, Shirley Lewis,
Anice Little, Arlene Mandich, Myrtle Murphy,
Sharon Mullinix, Beverly Neyhart, Addie Nunn,
Kay O'Brien , Deborah Richardson, Edward
Ryczaj, Barbara Schawilje, Marsha Shear, Bar-
bara Sherman, Barbara Smith, Judith Stanik,
Barbara Steele, Constance Taylor, Bettye Turner,
Paula Wilson, Helen Wineinger, and Linda Sue
Winston immediate and full reinstatement to
their former jobs or, if those jobs no longer exist,
to substantially equivalent positions , without
prejudice to their seniority or other rights and
privileges, and make them whole for any loss of
earnings suffered by reason of their unlawful
discharge.
WE WILL, upon request, bargain with the
International Union of District 50, Allied and
Technical Workers of the United States and
Canada, as the exclusive representative of our
employees in the appropriate unit described
below with respect to rates of pay, wages, hours of
employment, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The appropriate bargaining unit is:
All office and clerical employees includ-
ing record clerks and engineering clerks,
engineering estimators and draftsmen, but
excluding all production and maintenance
employees, office janitors, confidential em-
ployees, professional employees, guards, and
supervisors as defined in the Act.
GARY-HOBART WATER
CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Everett McKinley Dirksen Building,
Room 881, 219 South Dearborn Street, Chicago,
Illinois 60604, Telephone 312-353-7572.
TRIAL EXAMINER'S DECISION
LLOYD BucHANAN , Trial Examiner : Unlike a recent
case 1 in which I excluded proffered testimony because the
proffer showed that it was irrelevant and could not affect
the issues although the Board , describing the rejected
testimony as "insufficient to establish the inappropriate-
ness of [its own newly ] certified unit" (this , of course, being
the reason for the exclusion at the trial after counsel had
explained the reason for the proffer), nevertheless declared
that it should have been received and that the exclusion
was erroneous but somehow nonprejudical , various allega-
tions and defenses and the evidence pro and con with
respect to them are here relevant , and dependent on the
validity of the primary defense . That evidence has been
received.
With disposition of the case on the primary issue , there is
no need in this Decision to swell the time spent at the trial
by further consideration and detailed recital of the
evidence on those other issues which need not now be
reached and which the Board may "not reach or pass
upon.,
But habit and my interest in the proceeding as it
developed , impelled me to evaluate the evidence as it was
received and thereafter, and to make tentative findings
pending the conclusion of the trial . Should reviewing
authority desire additional reference to various points
raised, further hearing will be unnecessary ; on remand I
shall be quite prepared to submit analysis, which I now
deem (and the Board may agree ) unnecessary beyond that
offered below. Pace the Board, "It is not meet that every
nice offense should bear his comment."
The complaint herein (issued January 4, 1972; charges
filed June 21 and November 12, 1971), as amended , alleges
that the Company has violated Section 8(aX3) of the
National Labor Relations Act, as amended, 73 Stat. 519,
by discharging 34 employees on June 17, 1971, because
they engaged in a protected sympathy strike, and by
refusing to reinstate them when openings have occurred
although they made an unconditional offer to return to
work on August 18, 1971; Section 8(aX5) of the Act by
terminating its collective-bargaining agreement with the
Union on October 27 , 1971, and bargain with the Union;
and Section 8(axl) of the Act by each of the above acts.
The answer , as amended , denies the allegations of
violation and further alleges that the strikers violated a no-
strike clause in the collective -bargaining agreement, that
the strikers participated in mass and violent picketing, that
the Union rejected the Company's offer to arbitrate under
the contract, that no unconditional offer was made to
return to work, and that the strikers have been replaced or
their jobs eliminated; further that the Union would be
involved in a disqualifying conflict of interest if it sought to
represent the strikers ' replacements, that the Company on
October 27 gave notice of termination of the contract as of
December 31, 1971, and that the breach of the no-strike
provision terminated the contract before October 27.
The case was tried before me at Gary, Indiana, on
February 15 through 17, 1971, inclusive . Counsel were
heard in oral argument and briefs , excellent within the
I Penn Building Maintenance Corp., 195 NLRB 183.
GARY-HOBART WATER CORPORATION
limitations of the respective positions, have been filed by
the General Counsel, the Company, and the Union, the
time to do so having been extended. Upon the entire
record in the case and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR) AND
CONCLUSIONS OF LAW
1. THE COMPANY' S BUSINESS AND LABOR
ORGANIZATION INVOLVED
The facts concerning the Company's status as an Indiana
corporation, the nature and extent of its business as a
public utility under permit from the Public Service
Commission of the State of Indiana, and its engagement in
commerce within the meaning of the Act are admitted; I
find and conclude accordingly. I also find and conclude
that, as admitted, the Union is a labor organization within
the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Outline of Events
The Company's employees are represented in two units
by respective locals affiliated with the Charging Union.
Production and maintenance employees, in what is
sometimes referred to as the men's unit, are represented by
Local 13584. Our direct concern is with the office and
clerical employees or so-called women's unit (although it
includes four male clericals), which has been represented
by Local 14321. On September 5, 1968, the Charging
Union was certified by the Board as the exclusive
collective-bargaining representative for the clericals in a
unit described as follows:
All office and clerical employees, including record
clerks and engineering clerks, engineering estimators,
and draftsmen employed by the employer at its Gary,
Portage and Hobart, Indiana locations, but excluding
all production and maintenance employees, office
janitress, confidential employees, temporary employ-
ees, professional employees, guards and supervisors as
defined in the Act.
Effective April 1 (January 1 is elsewhere declared to be
the effective date) a collective-bargaining agreement
covering the clericals through December 31, 1971, was
entered into between the Company and the Charging
Union on behalf of 14321. The women had been on strike
between March 20 and April 1, 1969, and approximately
70 of some 97 men in the production unit had honored
their picket line. (We were also told that 43 remained on
the job.) It is noted that on March 21, 1969, the Company
in a letter to the president of the men's local cited the no-
strike provision in their contract and warned of possible
action against the locals and the employees for violation of
the agreement by the refusal to cross the picket line; 5 days
2 In the face of the early admission that this was a sympathy strike, and
the facts which regardless of the label attached so indicate , Mandich, chief
steward for Local 14321, disingenuously maintained that this was not a
stoke when clericals refused to go to work on June 1 and thereafter but
751
later the Company sent a letter , similar to the extent
pertinent, to members of 13584.
The contract with 13584 having expired on May 31,
1971, the operating employees began an economic strike on
June 1 and remained out until August 30. On June 1 the
clericals began a sympathy strike,2 refusing to cross the
men's picket line. It is claimed that the clericals ' became an
unfair labor practice strike with their discharge on June 17.
On June 3 the Company sent to Mandich a letter similar
to that of 2 years before addressed to Local 13584; and on
the same day a letter to each clerical, citing a breach of the
no-strike clause, directing that they report for work on
June 7 and, quoting from the contract that their services
"are essential to the operation of a public utility and to the
welfare of the public," warning of termination and possible
damage action.
On June 9, during negotiations with the men's local only,
the Company submitted for proposed signature by the
Charging Union and both locals a memorandum of
agreement which provided, inter alia, that the Union and
the locals would not take action against any member who
crossed a picket line set up by a unit other than that to
which the employee belonged. The Charging Union and
the locals refused to sign. It was later brought out that the
Union had asked the Company to draft a document
covering the Company's position on the items mentioned
in the proffered memorandum of agreement.
On June 17 the Company notified each of the clericals
that her employment had been terminated for breach of
the no-strike clause of the contract.
Under article V, Grievances, the contract provides as
follows:
It is expressly understood and agreed that the
services to be and being performed by the employees
covered by this agreement pertain to and are essential
to the operation of a public utility and to the welfare of
the public dependent thereon, and in consideration
thereof, and of the agreement and conditions herein by
and between the Company and the Union be kept and
performed, the Company and the Union mutually
agree that during the term of this agreement there shall
be no lockouts by the Company and there shall be no
strike, stoppages of work or any other form of
interference with any of the production or other
operations of the Company by the Union or its
members, and any and all disputes and controversies
ansing under or in connection with the terms of
provisions hereof shall be subject to the grievance
procedure hereinafter set forth if the grievance is filed
within ninety (90) days o'f the occurrence... .
Article XVIII, Effectiveness, reads as follows:
(2) The Union agrees that there shall be no strikes,
slowdowns or other interruption of work by any of its
members during the term of this agreement, and the
Company agrees that there shall be no lockout during
the term of this agreement, and both parties agree that
became one with receipt of discharge letters which the Company sent on
June 17 She pointed out that the clericals earned no picket signs before
June 18
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any disputes or differences shall be taken up under the
Grievance and Arbitration procedures of this agree-
ment....
MR. JOHN MOSER , PRESIDENT LOCAL, 13584, DISTRICT 50
ALLIED & TECHNICAL WORKERS 1122 WEST FIFTH
AVENUE GARY, INDIANA 46402
It was stipulated that article V appears in the contract
between the Company and the men's unit, effective June
18, 1968; and that, while that no-strike provision is
essentially the same as appears in contracts between the
Company and the men's unit during the last 20 years, these
latter contracts have not included a provision similar to
that quoted above from article XVIII.
Thereafter, the strike and the sympathy strike continu-
ing, the Company, at a negotiating session with Local
13584 on July 20, submitted to the Union the following
proposal:
As a part of the settlement of the contract negotiations
between the Company and District 50, Allied and
Technical Workers, and its members, it is agreed that
the wording of Article V of the contract between the
parties dated June 18, 1968 (and of the same wording
as incorporated in the new contract now being
negotiated) prohibits any and all work stoppages,
strikes, slowdowns, or observances of picket lines from
and after June, 1971. (The parties remain in disagree-
ment as to the proper interpretation of that wording
prior to that date.)
It was testified that counsel for the Company maintained
and insisted that this paragraph had to be part of the
package submitted to the union membership for approval;
and that the union representatives were firmly opposed to
it.
The meeting lasted until about 4 o'clock the next
morning, and later that day the Company submitted a five-
page memorandum of tentative agreement without men-
tion or reference to the suggestion of the day before. The
testimony that at the conclusion of the meeting early on
the morning of March 21 the Company was not insisting
on inclusion of the paragraph which it had submitted at
that meeting is supported by the fact that the lengthy and
detailed proposal now submitted did not include the
paragraph offered just a few hours earlier.
On July 22 in a letter to Moser, president of Local 13584
who was also acting on behalf of Local 14321, the
Company invoked arbitration under the grievance proce-
dure of the contract with the clericals.
On August 18 both locals sent the following telegram to
the Company:
IN RESPONSE TO AND IN COMPLIANCE WITH PRESIDENT
NIXON'S REQUEST FOR A STOPPAGE TO STRIKES AND
LOCKOUTS UNTIL NOV. 12, 1971, THE MEMBERS OF LOCAL
13584 AND 14321 OF DISTRICT 50, A.T.W., IN THIS TIME
OF NATIONAL EMERGENCY FEEL IT IS THEIR PATRIOTIC
DUTY AND RESPONSIBILITY TO COOPERATE WITH THE
PRESIDENT FOR THE WELFARE OF OUR COUNTRY;
THEREFORE , WE WILL RETURN TO WORK IMMEDIATELY.
SUGGEST MEETING AT ONCE TO WORK OUT DETAILS.
The Company replied as follows by telegram on August
19:
MRS. ARLENE MANDICH , CHIEF STEWARD LOCAL 14321,
DISTRICT 50 ALLIED & TECHNICAL WORKERS 1122 WEST
FIFTH AVENUE GARY, INDIANA 46402
IN YOUR WIRE TO US OF AUGUST 18, YOU STATED THAT
YOUR MEMBERS "WILL RETURN TO WORK" AND
SUGGESTED AN IMMEDIATE MEETING TO "WORK OUT THE
DETAILS ." SUBSEQUENT TELEPHONE CONVERSATIONS
WITH MR . MOSER AND OTHERS HAVE MADE IT CLEAR, AS IS
IMPLIED IN YOUR WIRE , THAT YOU ARE DEMANDING A
JOINT MEETING OF BOTH LOCALS WITH US. CONFIRMING
OUR TELEPHONE CONVERSATIONS , WE ARE UNWILLING TO
ENGAGE IN ANY SIMULTANEOUS OR JOINT DISCUSSIONS
WITH BOTH LOCALS. EACH REPRESENTS A WHOLLY
SEPARATE AND DISTINCT BARGAINING UNIT, AND THE
LOCALS ARE IN TOTALLY DIFFERENT SITUATIONS. THE
OPERATING LOCAL HAS BEEN ENGAGED IN A LEGAL
STRIKE IN A DISPUTE WITH US OVER CONVENTIONAL
ITEMS OF COLLECTIVE BARGAINING-SUCH AS WAGES,
WORKING CONDITIONS , ETC. ON THE OTHER HAND, THE
MEMBERS OF THE CLERICAL UNIT HAVE BEEN ENGAGED IN
UNPROTECTED AND ILLEGAL ACTIVITIES , HAVE BEEN
DISCHARGED , AND ARE NOT ENTITLED TO RETURN TO
WORK . WE ARE WILLING TO MEET WITH
REPRESENTATIVES OF THE OPERATING LOCAL TO DISCUSS
THE DETAILS OF A RETURN TO WORK AT YOUR EARLIEST
CONVENIENCE . WE WILL BE WILLING TO CONSIDER
MEETING WITH REPRESENTATIVES OF THE CLERICAL
LOCAL IF WE ARE INFORMED WHAT TOPICS ARE TO BE
DISCUSSED . IN VIEW OF THE INJUNCTION ISSUED BY U.S.
DISTRICT JUDGE BARRINGTON PARKER , WE ARE NOT
CERTAIN THAT THE PARTICIPATION OF STEEL WORKERS
REPRESENTATIVES AT SUCH MEETINGS , RATHER THAN
DISTRICT 50 REPRESENTATIVES WOULD BE APPROPRIATE.
HOWEVER, WE WILL NOT OBJECT TO SUCH PARTICIPATION
AT THIS TIME.
On September 14 grievances were filed in general terms
on behalf of the striking clericals, in which they cited the
allegedly unjust discharges on June 17 and requested that
they be immediately reinstated . No further action was
taken with respect to these grievances.
Declaring its belief that the collective-bargaining agree-
ment with the clericals had already been terminated, the
Company sent the following letter to the Union on October
27, allegedly to avoid automatic renewal of the contract
(and placing the discharges on June 18):
International Union of District 50 Allied & Technical
Workers of America 11 East Adams Street-Room 902
Chicago, Illinois 60603
Att: Mr . Joseph Defalco Director-Region 43
Gentlemen:
This is to inform you that this company terminates its
labor agreement with your Union (and with its Local
14321) executed as of April 1, 1969, effective on the
GARY-HOBART WATER CORPORATION 753
date therein provided, December 31, 1971, although we
believe that the contract has already been terminated
by your organization and members by operation of law.
As you know, the members of Local 14321 engaged in a
massive breach of the no-strike clauses of the contract
commencing June 1, and continuing until on or about
August 30, 1971. This necessitated the discharge of 33
of them on June 18, 1971, and their ultimate replace-
ment by other employees.
Your organization filed charges with the National
Labor Relations Board alleging that the discharge of
these employees constituted an unfair labor practice.
However, as you know, the Regional Director refused
to issue a complaint finding: "the evidence shows that
the employees represented by Local 14321 were
engaged in unprotected activities".
As matters now stand, the Company has 30 employees
in the bargaining unit which Local 14321 formerly
represented, of whom only one is as far as we know a
member of your organization. (We understand that you
have a dispute with one other employee as to whether
she made a timely resignation from the Union. In any
event, if she is a member, it is obvious she is an
unwilling one.)
It is readily apparent that you no longer represent a
majority of the employees now working in the
bargaining unit.
Under date of October 29, the Union requested that the
Company meet with it to negotiate modifications in the
clericals' contract. By reply on November 11, the Company
rejected this request, citing its letter of October 27. The
Union had on November 10 acknowledged receipt of the
Company's letter of October 27 and had referred to its own
letter of October 29.
B. The Alleged Violation of Section 8(a)(3)
Much of the testimony received could be called
"contingency testimony": It would require consideration
only if other testimony were not determinative. Thus, if the
defense be sustained that the clericals' strike or refusal to
work violated the contract between Local 14321 and the
Company, and that they were not protected as either unfair
labor practice or economic strikers, it would be unneces-
sary to determine whether there were violative discharges
before replacements were hired. Otherwise we would then
detail seriatim whether the strikers unconditionally offered
to return to work; whether they were in fact replaced or
their jobs abolished before any condition that the prod-
uction and maintenance strikers return was met; and
whether picket line activity justified refusal or failure to
rehire any. Somewhere here the so-called Collyer3 defense
of deferral to arbitration procedure under the contract
might also be weighed.
The primary defense cites the no-strike provisions of the
contract of April 1, 1969. After its warning of June 3, the
Company in the discharge letters of June 17 cited article V
of the contract. The no-strike provisions are here clearly
stated.
This brings us to cases on this point and the arguments
made. A provision against cessation of work or interfer-
ence therewith is lawful and the Act "clearly enables
contracting parties to embody in their contract a provision
against requiring an employee to cross picket line if they so
agree . And nothing in the Act prevents their agreeing upon
contrary provisions if they consider them appropriate to
the particular kind of business involved . An employee's
breach of such an agreement may be made grounds for his
discharge without violating Sec. 7 of the Act."4 With the
discharge lawful in Rockaway News, cited by both sides, we
have an a fortiori situation in the instant case where , unlike
Rockaway News, members of the Union are expressly cited.
If distinction be claimed in the fact that in Rockaway the
Union sought a clause permitting it to honor the picket
line, but was turned down , it cannot be sensibly found that
the employees' rights are greater and the employer's less
where the Union did not even seek such permission.
In Montana-Dakota Utilities,5 cited by the General
Counsel, aside from the fact that the action there taken was
.,not solely for the purpose of preserving the efficient
operation of Respondent 's business," the employer "made
no attempt to replace" them "while the picketing was in
progress." The no-strike clause in that case provided that
"there shall be no collective cessation of work . . . on
account of any controversy respecting the provisions of"
the agreement . In the instant case , the no-strike bar is not
so limited, the reference to the provisions of the agreement
being in connection with grievance procedure . This is so
despite the argument now made of waiver "only to the
extent of disputes arising under the contract." Unlike
Granite City Steel,6 the no-strike clause here was not
limited by or made dependent upon the grievance
procedure; it was coordinate with and not conditioned
upon such procedure.
Similarly, the decision in Kellogg7 makes it clear that,
unlike our case, the contract there barred "only strikes over
a grievable dispute" and "arising [t ]hereunder," and in that
connection applied "only to the `Union ,' " not its
members.
That the decision in Hoffman Beverages is not here
applicable is so obvious as to require no comment. As
much, or little, can be said of other cases cited: Different
cases , different provisions , different conclusions. If, as
argued with reference to a Hearst case,9 bargaining history
indicated a "failure of the union to obtain the picket line
clause it had proposed during negotiations," the absence of
a different proposal no more serves to modify what is
carefully set forth in the agreement reached, inclusive and
from the Company's point of view well drafted. True, the
3 Collyer Insulated Wire, A Gulf and Western Systems Co, 192 NLRB 6 Granite City Steel Company, 87 NLRB 894, 895.
827 7 Kellogg Company, 189 NLRB 948, enfd . 457 F.2d 519 (C.A. 6, 1972).
4 N LR B v Rockaway News Supply Company, Inc, 345 U S. 71 (1953) 8 Hoffman Beverage Company, 163 NLRB 981.
S Montana-Dakota Utilities Co, 189 NLRB 879, enforcement denied 455 9 The Hearst Corporation , News American Division, 161 NLRB 1405,
F.2d 1088 (C.A 8, 1972) 1416
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rejection of a proposal indicates the parties' intent; so
presumably does a provision which on its face is unambi-
guous.
In the instant case, limitation with respect to matters
subject to the grievance procedure is placed on the
arbitrators only. The General Counsel correctly points out
that Lincoln Mills 10 recognizes a no-strike provision as a
quid pro quo for the grievance procedure. But to argue that
the clericals could not air their grievances since they were
striking because of the men's activities, which were outside
the clericals' contract, is akin to the patricide's plea for
leniency due an orphan.
Such an argument would permit a strike despite a
comprehensive no-strike provision whenever a dispute can
be indicated with reference to any point not covered by the
contract. We cannot so readily deracinate the product of
years of negotiations and agreement and the work of
experienced negotiators and draftsmen.
It is nowhere suggested how a contract could be drawn
to cover more clearly all employee concerted activities and
to forbid strikes and work stoppages; nor are cases cited
with clearer, more comprehensive, and admittedly suffi-
cient no-strike clauses-unless it be claimed, in the face of
Rockaway News, supra, that there cannot be any such.
Certainly as counsel for the Union argues, the economic
dispute between the men's unit and the Company was not
cognizable under the clericals' contract and was not
subject to grievance. But the clericals' claim of a right to
strike because of the men's dispute and picket line was,
whatever its merits, cognizable as a grievance which the
Company, if belatedly, offered to expedite. In any event,
the no-strike provisions applied.
As noted above, when the General Counsel urges that
reference here is to disputes arising under the contract, that
reference is to the grievance procedure, not to the no-strike
provision. If an arbitration clause is the quid pro quo for a
no-strike clause, the latter is not to be vitiated by a
specious argument which would sanction removal of
controversies from the scope of a no-strike provision as
broad as that in the contract before us.
The General Counsel argues for waiver or an interpreta-
tion of the agreement, or both, on the basis of past
practice, when the men struck in sympathy with the women
in 1969. The fact that the Company at that time wrote two
letters threatening discharge but took no action, the strike
ending a few days later, does not establish a pattern or
precedent for the situation when, after, a longer period and
virtually complete cessation, operations now had to be
resumed.
Neither the failure to discharge the men on sympathy
strike in 1969 nor the provisions of the clericals' contract
constitute that waiver of the no-strike provision which
must be spelled out in clear and unequivocal terms." As
pointed out, the clericals' contract was signed and the
sympathy strikers returned work within a few days after
they were warned in 1969, the work continuing; now the
clericals had been out for 2-1/2 weeks and the prospect
was that the men would continue their strike for a long
time, as they did until August 30, and the clericals theirs in
sympathy while their own work accumulated. There was
no waiver or acquired "right to honor [the] picket line,"
now claimed by the Union; if the clericals opined or
"concluded" otherwise, it was in the face of prompt notice
by the Company. If on one hand it be claimed that no
employee was disciplined in 1969, it is clear on the other
that the Company's warnings at that time were not
questioned. If they rely on the Company's limited action in
1969, the clericals cannot ignore the failure at that time to
question the Company's position (and the apparent
acceptance of it) vis-a-vis those who had refused to cross a
picket line. Aside from the difference between the 1969 and
the instant situations, noted above, we cannot properly rely
on failure to do more than issue warnings and ignore the
failure to question those warnings.
Reference has already been made to the testimony
concerning the Company's proposals of June 9 and July
20. The General Counsel argues that these indicate that the
Company itself evidently considered the provision to be
ambiguous and that it therefore called for further agree-
ment concerning it. That proposal no more indicates an
admission by the Company concerning its understanding
of the meaning of the no-strike provision, than it does a
superabundantly cautious attempt to avoid repetition of
the situation. Manifestly, not every contingency can be
foreseen. If an attempt be made to meet an interpretation
which is not accepted and to avoid the effect of such an
interpretation, that attempt does not itself affect the
meaning and effect of the language previously used.12 The
question remains, how is the contract language to be
construed here and what are the rights of the parties? 13 I
find and conclude that the clericals' strike was unprotect-
ed, that the discharges on June 17 were lawful, and that the
clerical strikers were thereafter no longer employees.
Although with this finding it becomes unnecessary to
proceed to the other allegations and defenses, I am also led
by a regard for the efforts of counsel to state, without
detailing all of the record testimony, what my findings
would be on the basis of the evidence pro and con on those
matters.
With detailed examination with respect to the Compa-
ny's list of clericals and their replacements and the
abolition of their jobs, the issue is raised of the Company's
right to discharge before replacement, granted the public
service status of the business. Here we must recognize that
the strike was in violation of the contract and the further
fact of need to preserve efficient operation of this
important utility. From the record it appears that sufficient
help was available during the brief production and
maintenance strike in 1969; not so when 34 of 35 clericals
struck in 1971. That the public interest and public service
regulations required the Company to continue to provide
water is clear. While such interest and regulations did not
carry over directly to billing and other commercial and
administrative operations, the Company could not for long
10 Textile Workers Union of America, AFL-CIO v. Lincoln Mills of union's position does not excuse an earlier violation by the union (Local
Alabama, 353 U S. 448 (1957) 423, Laborers' (Mansfield Flooring Co, Inc, d/b/a Columbus Cement Floors),
It The Timken Roller Bearing Company, 138 NLRB 15, 16 195 NLRB 241, the attempt here to obtain agreement on the position
12 See Kellogg Company v N.L.R B, 457 F 2d 519 (C A. 6, 1972 ) indicated in the contract and asserted by the Company does not alter the
13 If an employer 's subsequent compliance with an award supporting a fact that the clericals and their local had violated the contract.
GARY-HOBART WATER CORPORATION - 755
neglect such operations ; it delayed for 17 or 18 days, a
reasonable period.
In this connection reference may be made to Redwing
Carriers 14 and to Montana -Dakota,15 the latter particularly
with reference to any attempt to replace and the distinction
between preserving efficient operation and disciplining.
Insofar as need for employees is concerned , during the I-
1/2-week strike of clericals in 1969, when production and
maintenance employees stayed out in sympathy, the
Company operated with the aid of approximately 30 or 40
percent of the latter , who did cross the picket line.
Touching briefly on the contigency defenses , we come to
the issue of unconditional offer by the clericals to return. It
is frequently difficult to prove the facts; and difficult to
make credibility findings . Testimony may be colored or the
evidence presented only partially . As an example of the
latter, Katz, attorney for the Union , testified that at a
meeting on August 24 between representatives of the
Company and of the clericals ' local (this after the
Company's letter of August 19), he declared that they
wanted to work out details of the girls going back to work;
that the Company 's reply was that there was nothing to
talk about since all had been fired ; and that after further
discussion Chief Steward Mandich stated that all of the
girls were ready to go back to work . Asked whether there
was "any mention made of the men 's local," Katz replied
in the negative . He was not asked whether mention was
made of the production and maintenance employees
returning to work. He offered no outright denial that
Mandich had connected the clerical 's return with that of
the men.
On this latter point we received testimony pro and con.
But most significant in this connection was Mandich's own
admission that the clericals "were offering to go back to
work with the men ." Two months after the discharges, and
the men still on strike, this offer to return was conditional
despite Mandich 's insistence that she imposed no condi-
tion.16
Mandich is intelligent and forceful . Her admission is
meaningful , and I do not credit her denial on rebuttal.
Whatever was otherwise testified to by witnesses whose
mein zry mt6h t be deemed slight or whose bias great, we
kind support for the admission in Mandich 's subsequent
testimony that the clericals were "honoring the picket line
set up by Local 13584": That was and continued to be, as
she told us , their policy. Accepting the telegram's statement
of the motive which prompted it 2 months after the
discharges , it was on its face a joint request and referred to
a joint return . The clericals ' return was intertwined with
and conditioned on a proposal to "work out details" with
respect to return by members of both locals . The women
struck in sympathy with the men . It does not appear that
such sympathy , their purpose , or their procedure changed.
We recall that the members of Local 13584 did not end
their strike until August 30.
Beyond all of this, we have documentary evidence which
points to the offer of return as conditional , this indicated in
the concatenation between the two locals as indicated in
14 Redwing Carriers, Inc, and Rockana Carriers, Inc, 137 NLRB 1545
IS Supra
16 Her earlier testimony was that she declared at this meeting that the
the telegram of August 18. Louis, the company president,
did not attempt to detail the discussion or even Mandich's
part in it . But his uncertain summary or conclusionary
statement confirmed what we had already heard: As he
recalled , "she said that she would like to have the clerical
workers go back with the men ." This was more directly
testified to by other company witnesses , who confirmed
what Mandich herself admitted.
With decision on the issues of unlawful discharge , unfair
labor practice strike, entitlement to reinstatement, and
offers to return , it becomes unnecessary to pass on the
question whether the clericals' jobs were permanently filled
or abolished. We need not trace the list of clerical
personnel and their replacements and the detailed exami-
nation and cross-examination concerning these to deter-
mine whether any of the former employees' jobs remained
unfilled and available . Some jobs had been eliminated,
others were filled by permanent or temporary replace-
ments.
At the trial the Company showed a film to support its
defense of mass and violent picketing . There was no such
identification as would justify the refusals to reinstate and,
as I stated ex directo on the record the incidents depicted
did not appear to approach, in seriousness or vigor,
incidents described in the cases and which the Board has
found to be no more than examples of acceptable "animal
exuberance" or "normal picket line activity." (It should
suffice to refer parenthetically to the fact that still pictures
were also taken at various times.)
With respect to the defense that the issues should have
been arbitrated , 2 years ago , well before Collyer,'? I
analyzed a deferral problem in which arbitration would not
settle all of the issues , including violation of Section
8(a)(3), before the Board ; and despite such delays in the
past and to date , I submit that delay in Board processing is
not built in : The rights of litigants can be determined fully
and expeditiously . Collyer, since issued , and decisions in
other cases pending would now be determinative; but we
need not pass upon that question here.
The arbitration procedure under the contract , with the
requirement that each party name an arbitrator and thus
consent and proceed to arbitration, and the deferral by the
Board in Collyer, present a procedural problem which now
remains unsolved . We can defer to a more appropriate
time consideration of the questions which could be raised
in this respect.
Whatever else may be said in this connection, the
clericals not having requested arbitration , the Company's
arbitration offer on July 22, whatever its effect , was not
"negated" by its refusal to bargain when it subsequently
declared the contract terminated.
C. The Alleged Violation of Section 8(a)(5)
This is not a case where protected economic strikers are
replaced, the status of the replacements depending on
reinstatement of the strikers and both groups being deemed
clericals felt that they "had a right to go back too" "if the men were going
back to work."
17 Collyer Insulated Wire, supra
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees eligible to vote on the issue of representation.
The Union has not claimed that it represented 18 the
replacements or that it represented a majority . Upon their
lawful discharge on June 17, the erstwhile strikers were no
longer employees.
Both sides agreed19 that the refusal to bargain aspect
depends on the issue of the validity of the discharges, or
that the 8(aX5) finding is a derivative of the 8(aX3). The
latter having been dismissed , it follows that the allegations
of violation of Section 8(a)(5) must likewise be dismissed.
la It was stipulated that since August 15 very few if any clericals
employed by the Company have been members of Local 13584. We need
not concern ourselves with the defense that the Union would be involved in
a disqualifying conflict of interest-more correctly whether it would be
representing employees who had conflicting interests-and the law
concerning the extent of its right to do so.
19 Because the issue is now raised in the Union's brief and stipulated
matters are sometimes overlooked on review , with a finding that they
D. The Alleged Violation of Section 8(a)(1)
All of the interference alleged is admittedly derivative
and dependent upon the findings with respect to the other
allegations . The allegations of violation of Section 8(aXl)
are dismissed.
Upon the foregoing findings of fact , conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 20
The complaint is dismissed in its entirety.
cannot be found , I repeat that the transcript includes a stipulation and
subsequent admission in this connection.
20 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 , recommendations, 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.