Suburban Transit Corp.

National Labor Relations Board - Board DecisionsJun 30, 1975

218 N.L.R.B. 1228 (N.L.R.B. 1975)

1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Suburban Transit Corp . and Highway and Local Motor Freight Drivers, Local No . 701, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and United Transportation Union, Lodge No. 1589, Party to the Contract . Cases 22-CA- 4656 and 22-CA-4665 June 30, 1975 SUPPLEMENTAL DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND PENELLO On May 4, 1973, the National Labor Relations Board issued its Decision and Order in the above- entitled proceeding,' finding that Respondent had engaged in and was engaging in unfair labor practices in violation of Section 8(a)(2) and (1) of the Act by bargaining and entering into a renewal of a collective-bargaining agreement with the Party to the Contract, the UTU,2 when a question concerning representation had been raised by petitions filed by the employees and the rival Teamsters Local No. 701.3 As the agreement contained a union-security provision, the Board also found that Respondent violated Section 8(a)(3) and (1) of the Act by the execution of that provision. It also found that Respondent further violated Section 8(a)(3) and (1) of the Act by discharging and refusing to reinstate certain of its employees who engaged in a strike caused in part by the execution of the UTU- Suburban agreement.4 The Board ordered Respon- dent to cease and desist from its unfair labor practices and to take certain affirmative action to remedy the unfair labor practices. Affirmatively, the Board's order required Suburban to withdraw and withhold recognition from the UTU until the UTU has been certified as the bargaining representative of Suburban's employees and to offer full reinstatement to its wrongfully discharged employees and to make them whole for any losses suffered as a result of the unlawful discrimination found by the Board. Thereafter, on May 23, 1974, the United States Court of Appeals for the Third Circuit handed down its opinion in these cases.5 The court denied enforcement to the part of the Board's Decision that held Respondent violated Section 8(a)(2), (3), and (1) , 203 NLRB 465 (1973). The caption of this Supplemental Decision and Order deletes the name of H.A.M.L. Corporation (Case 22-CA-4670) because the Court of Appeals for the Third Circuit remanded to the Board only that part of the Board 's Decision applying to Suburban Transit Corp. See fn . 5. infra, 2 United Transportation Union , Lodge No. 1589. 3 Highway and Local Motor Freight Drivers, Local No. 701, affiliated with International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America. 218 NLRB No. 185 by bargaining and entering into a union-security agreement with the UTU. It held that the evidence did not show that a real question of representation existed at the time Respondent accorded recognition to the UTU and renewed the Suburban-UTU collective-bargaining agreement. The court also set aside the Board's finding that Suburban unlawfully discharged its striking employees and remanded this portion of the case for a determination as to whether the strike was protected activity in light of article 13 of the bargaining agreement. On August 7, 1974, the Board advised the parties that it had decided to accept the remand of the court and further advised the parties that they might submit statements of position with respect to the issues raised by the remand. Subsequently, Team- sters petitioned the United States Supreme Court for a writ of certiorari to the Court of Appeals for the Third Circuit. The Board therefore advised the parties that it would suspend the time for filing statements of position until after the Supreme Court ruled in the matter. On December 23, 1974, the Supreme Court denied Teamsters' petition.6 On January 2, 1975, the Board again invited the parties to state their positions with respect to the issues raised by the court of appeals' remand. Responses were filed by the General Counsel, Respondent, the Party to the Contract, and Charging Party Teamsters Local No. 701. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. In considering the matter before us, we accept as the law of this case the court of appeals' findings and conclusions. The Board, adopting the Decision of the Adminis- trative Law Judge, had held that Respondent's discharge of 17 employees who went on strike on October 27, 1971, violated Section 8(a)(3) and (1) because the employees were engaged in a protected concerted activity in protesting Respondent's unlaw- ful execution of a union-security agreement with the UTU on October 14, 1971, in the face of representa- tion petitions filed earlier with the Board by employees and Teamsters Local 701. The court found that the execution of the Suburban-UTU collective-bargaining agreement was lawful and The Board also found that the strike was caused in part by the employees ' protest over the discharge of two employees. 5 4919 F.2d 78. The court of appeals enforced part of the Board 's Decision applying to H.A.M.L. Corporation (Case 22-CA-4670), finding a violation of Sec. 8(aX1). Judgment entered July 22, 1974. The court did not remand to the Board Case 22-CA-4670. 6 419 U.S.1089. SUBURBAN TRANSIT CORP. 1229 therefore the employees' strike was not protected as an unfair labor practice strike. The Board did not reach the question, if the Suburban-UTU collective-bargaining agreement was lawfully executed, whether the employees' strike was protected as an economic strike in light of article 13 of the Suburban-UTU agreement. It is for the determination of this question that the court has remanded this case. In the absence of a contractual provision to the contrary, the employees' strike action was protected under Section 7 of the statute.? The issue is whether the UTU, by virtue of the "no strike" clause in the bargaining agreement, effectively waived the employ- ees' individual right to strike. The Board and the courts have repeatedly emphasized that such waivers will not be readily inferred: that a union will not be found to have surrendered its members' statutory rights in the absence of "clear and unmistakable language" to that effect 8 We have held, with court approval, that a broad no-strike clause is "only as extensive as the griev- ance-arbitration procedure" which the contract affords.9 This holding is supported by the Supreme Court's opinion in Gateway Coal Co. v. United Mine Workers of America, stating, "Absent an explicit expression of such [other] intention . . . the agree- ment to arbitrate and the duty not to strike should be construed as having coterminous application." 10 We have examined the record and the Suburban-UTU agreement in the light of the court's remand direction, including consideration of the Supreme Court's Gateway Coal decision, and hold that no waiver was intended or effected by the contract in the particular circumstances presented here. The "no-strike" provision is the last clause in article 13, entitled "Discipline and Investigation," 't Economic strikers retain their status as employees and are entitled to reinstatement with backpay under principles set out in The Laidlaw Corporation, 171 NLRB 1366, 1369-70 (1968), enfd. 414 F.2d 99 (C.A. 7), cert. denied 397 U.S. 920 (1969). While an employer may hire permanent replacements for his striking employees and need not discharge the replacements at the end of the strike to make way for the returning strikers (N.L R.B. v Mackay Radio & Telegraph Co., 304 U.S. 333, 345-346 (1938)), the employer violates Sec . 8(a)(1) and (3) of the Act if he discharges employees for engaging in such concerted activity (N.L.R.B. v. International Van Lines, 409 U.S. 48, 52-53 (1972)). See also N.LR B. v. Washington Alum nnum Co., 370 U.S. 9, 17 (1962)). 8 Gary-Hobart Water Corporation v. N L KB., 511 F.2d 284 (C.A. 7, 1975), enfg. 210 NLRB 742 (1974) See also cases cited in fn. 9 of Board's Decision. 9 Gary-Hobart Water Corporation, 210 NLRB 742, enfd. 511 F.2d 284 (C.A.7,1975) io 414 U.S. 368, 382 (1974), quoted by the court of appeals in enforcing Gary-Hobart Water Corporation, supra. i i Art. 13 reads as follows: ARTICLE 13 which describes the grievance procedure. The clause reads: F. Recourse to outside tribunals will not be made by either party until the Grand Lodge of the Union has been advised and given a reason- able opportunity to intervene and dispose of or adjust the situation as the case may be. This, with the understanding that there shall be no author- ized strike during such period the dispute is pending under the discussion with either the local lodge or the Grand Lodge. The other clauses in article 13 provide for a three- or four-step grievance-arbitration procedure resulting in binding arbitration at the last step.1' The preamble of the agreement, which expresses the overall purpose, provides in part: The purpose of this agreement is to create a definite understanding between Suburban and the Union regarding rates of pay and working conditions and to establish a plan for the prompt adjustment of grievances and all other disputes arising between Suburban and the Union. The no-strike clause (sec. F) is included as part of the same article as the grievance procedure. It provides that while a dispute is pending under discussion with the local lodge or Grand Lodge "there shall be no authorized strike during such period . . . ." The clause refers only to "authorized" or Union-called strikes. It makes no mention' of individual members' strike action not authorized by the Union, which is the factual situation here. Further, the union agreement barring union-author- ized strike action applies only after the grievance procedure has been invoked and is thus inapplicable to the facts of these cases. made to handle it in the snnphst [sic ] and most direct manner pursuant to the following procedure. A. The aggrieved employee, together with the representative of the Union, shall discuss the matter with the immediate supervisor concerned within three days after the date upon which the complaint arises If the dispute is not adjusted to the satisfaction of both parties, then B. The matter may be handled by the Grievance Committee and brought to the attention of the president of Suburban or his authorized deputy; C. If the dispute is not adjusted to the satisfaction of the Committee, assistance of a Grand Lodge officer may be requested; D. In the event a grievance cannot be settled between the officers of Suburban and the officers of the International Union the dispute will be presented to an arbitrator selected through the rules of the New Jersey State Board of Mediation . The determination of this arbitrator shall be final and binding on both parties. The cost will be shared equally by the Company and the Union. I? If an employee does not file his complaint with the manage- ment of Suburban within three days as provided above, the manage- ment reserves the right to reject the grievance as it so desires. Discipline and Investigation Section 1. If a grievance arises for any reason, and [sic ] effort will be 1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The preamble to the agreement circumscribes the grievance procedure. It reads that the purpose of the agreement , in addition to setting out the parties' understanding of working conditions, is to "establish a plan for the prompt adjustment of grievances and all other disputes arising between Suburban and the Union [UTU]." The "all other disputes" phrase is limited by the phrase immediately following there- after; i.e., "arising between Suburban and the Union." 12 Thus the strike action here by employees dissatisfied with the incumbent Union cannot be termed a dispute "arising between Suburban and the Union" and would not fall within the grievance procedure as set out in article 13. The grievance-arbitration procedure in article 13 of the Suburban-UTU agreement is narrow in scope compared to that in Gateway Coal Co., supra. The procedure in the latter case covered "differences .. . between the Mine Workers and the operators as to the meaning and application of the provisions of this agreement ," "differences . . . about matters not specifically mentioned in this agreement," and "any local trouble of any kind [which] arise(s) at the mine ." The Supreme Court held that this broad provision, particularly the last quoted category, encompassed a dispute between the contracting union and mine operator concerning the operator's employment of mine foremen who had failed to carry out prescribed safety procedures. The language of the Gateway Coal collective-bargaining agreement, unlike the agreement in issue here, was broadly stated, including even "matters not specifically mentioned in this agreement." 13 We therefore find that the Gateway Coal decision does not require a finding that the contract here encompasses the conduct of the 17 strikers. The dispute here was not arbitrable under the narrow scope of the Suburban- UTU grievance and no-strike provisions.14 Nor could we, in the absence of unmistakable evidence of such intent, infer that the employees' protest to the signing of the Suburban-UTU agree- ment was a "grievance" under that agreement and their strike action in support of such protest embraced by its no-strike provision. It is apparent 12 It follows that the first sentence in sec . I of art . 13, beginning "If a grievance apses for any reason," is limited by the preamble to grievances "arising between Suburban and the Union." 13 This distinction was significant to the Court of Appeals for the Seventh Circuit in Gary -Hobart Water Corp v. N L KB., supra, which held that a no-strike provision did not encompass a sympathy strike by clerical unit employees in support of production unit employees because the grievance -arbitration procedure in the clerical unit union's collective- bargaining agreement was limited to "any and all disputes and controversies arising under or in connection with the terms of provisions hereof ... . The court read this quoted description as applicable only to disputes arising under the clerical local union's agreement and therefore found that the sympathy strike was a protected activity and that the discharge of the strikers was an unfair labor practice . The court distinguished an earlier holding, that sympathy strikes were arbitrable , which had arisen in a case that the employees who struck in protest of the agreement were challenging the right of the UTU to continue to represent them for purposes of collective bargaining, and it is contrary to the realities of the situation, if not to human nature, to expect the officials of the UTU, absent a clear and binding promise to do so, to afford them full and fair representation in grievance actions against discipline imposed upon them by Respondent for their protests. For the UTU's interests were closely aligned with those of the Respondent, and against those of the striking employees.15 Moreover, it is apparent that the striking employ- ees' challenge to the representative status of the UTU was a lawful challenge timely pursued. Two petitions, one seeking to decertify the UTU and another seeking to replace it with the Teamsters Union, had been filed with the Board's Regional Office. These petitions were filed after the expiration of the insulation period during which no petition could have been filed, a rule designed to allow the negotiating parties ample time to negotiate free from the disruptive effect of petitions and election cam- paigns.16 They were nevertheless filed prior to the execution of the agreement, and under well-estab- lished policy raised a question of representation.17 Although the processing of those petitions was blocked pending the disposition of the unfair labor practice charges involved in this proceeding, they are still on file and remain viable petitions. The striking employees were, therefore, acting in concert for their mutual aid and protection in pursuance of their statutory right to seek a change in their collective- bargaining representative. In so concluding, we, of course, accept the Court's holding that "the mere filing of a representation petition by a competing union does not create a real question of representation so as to prevent an employer from entering into an agreement with the previously certified union." We do not read this, however, as an invalidation of such petitions, or as otherwise precluding the Board from directing an election on the basis of those petitions, in order to give the employees an opportunity to exercise their with the same all-inclusive contract found in Gateway Coal, supra Inland Steel Company v Local Union No 1545, United Mine Workers of America 505 F.2d 293 (C.A. 7, 1974). 14 Indeed it is apparent that the contracting parties themselves treated this dispute as one not subject to those provisions Thus, Respondent brought its suspension and discharge actions against the strikers under art. 6 of the agreement which provides for a hearing and appeal "to the highest officer of Suburban" outside of the formal structure provided in art 13 for resolving grievances. Though the Union did file an appeal from such action under art. 6, it filed no formal grievances under art. 13. Is Kansas Meat Packers, a Division of Arista Foods, 198 NLRB 543 (1972) 26 Deluxe Metal Furniture Company, 121 NLRB 995, 1000 (1958). 11 Ibid SUBURBAN TRANSIT CORP. 1231 statutory right to replace the incumbent union with another, or to reject representation altogether. Indeed, we see no other course which we could realistically follow. To hold that the later execution of a contract with an incumbent union operates to bar an election on timely filed petitions would permit the contracting parties to insulate the incumbent union from the challenge to its status. Although such insulation would necessarily depend on the employer's agree- ment , the incumbent fearing the challenge could purchase such agreement to the detriment of the interests of the employees, whose support it has lost, and in subversion of the principles of fair representa- tion by a majority union upon which effective collective bargaining is based. On the other hand, the employer, preferring the incumbent union to the one mounting the challenge, by a ready acceptance of terms and conditions it might otherwise be unwilling to accept, could itself determine the employees' representative in subversion of the principles of employee free choice. We perceive, therefore, no workable alternative to conducting the election petitioned for by the employees and the Teamsters.18 We conclude that the employees striking in protest of the signing of the agreement and in support of valid and timely filed petitions seeking an election were engaged in protected concerted activity within the meaning of Section 7 of the Act, and that nothing in the collective-bargaining agreement can reason- ably be construed as an intended waiver of their right to take such action. Moreover, we hold, apart from the language, purpose, and sense of the agreement, that the right of employees to be protected in acts which have the purpose of changing their bargaining representative is one that the Board has held cannot be waived by the bargaining representative. The United States Supreme Court emphasized this principle in N.LRB. v. Magnavox Company of Tennessee, 415 U.S. 322 (1974), holding that a union could not agree with the employer to ban employees' distribution of literature in nonworking areas on nonworking time because the employees' right to choose, support, or oppose a bargaining representative is a fundamental right protected by the statute, and dissemination of is It must be recognized that conductiiig an election after the execution of such an agreement deemed lawful by the court of appeals will not, in the specific case, necessarily deny the incumbent or the employer the fruits of such employer assistance as may have motivated the execution of the contract . Indeed, such contract may itself have a decisive influence on the employees ' decision whether to, redesignate the union favored by their employer instead of one opposed by it. It is for these reasons, among others, that the Board , with due respect for the courts of appeals which disagree with ii, continues to adhere to the view that employers violate Sec. 8(a)(1) and (2) of the Act by concluding agreements with incumbent unions after they have received notice that petitions seelang an election of representa- employee views at the workplace was appropriate to that end. The Court in Magnavox said: The union may, of course, reach an agreement as to wages and other employment benefits and waive the right to strike during the time of the agreement as the quid pro quo for the employer's acceptance of the grievance and arbitration procedure. Textile Workers v. Lincoln Mills, 353 U.S. 448, 455. Such agreements, however, rest on "the premise of fair' representation" and presup- pose that the selection of the bargaining repre- sentative "remains free." Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 220, 280. [415 U.S. at 325.] In the latter instance, "where the rights of the employees to exercise their choice of a bargaining representative is involved-whether to have no bargaining representative, or to retain the present one, or to obtain a new one," 'the Court would not sanction union waiver of such employee rights. 415 U.S. at 325. That decision, which holds invalid incumbent union attempts to constrict employees' Section 7 rights to press for selection or rejection of a bargaining representative, demonstrates that waiver in the instant situation would, similarly, defeat the Act's purpose of fostering fair representation. In- deed, in Magnavox the Supreme Court relied on its earlier decision in Mastro Plastics, which recognized that union agreements to waive the right to strike rest on the premise of fair representation. Where, as here, the employees exercise their right to select or reject a bargaining representative which arguably does or does not accord them fair treatment, that right cannot be waived by the bargaining representative or the employer. Accordingly, we find that the employees who struck on October 27, 1971, were engaged in protected concerted activity, and Respondent's discharge of 17 of them on November 5, 1971, for not returning to work violated Section 8(aX3) and (1) of the Act. CONCLUSION OF LAW Respondent has violated Section 8(a)(1) and (3) of the Act by discharging or refusing to reinstate on fives have been timely filed with the Board. To the extent such a policy operates to prevent the execution of agreements in such circumstances, it eliminates the element of possible improper employer assistance from affecting the election ; in those cases where it has not deterred the execution of an agreement , enforcement of the Board's order requiring withdrawal of recognition and abandonment of the contract dissipates the effect of such assistance . The Board, therefore, continues to believe that its policy operates to achieve the most favorable balance in fostering the sometimes conflicting statutory policies of preserving employee free choice in the selection of representatives and promoting and preserving the stability of established collective-bargaining relationships. 1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD November 5, 1971 , the following employees who engaged in a strike commencing on October 27, 1971: Joseph L. Alfonso Joseph Manga Joseph Peter Castiglione George Millan James Diorio Peter Morelli John Freitas Daniel Rava Rudy Hamblin Philip Reinhardt John Kunz Tim Roche George Laverdiere Pat Spano Carl Legere John K., Williams G. Woodward THE REMEDY Having found that Respondent has violated Sec- tion 8(a)(1) and (3) by discharging and refusing to reinstate the above-named employees, we shall order Respondent to cease and desist therefrom and to take certain affirmative action, including reinstating and making whole the aforenamed discriminatees. All backpay computations shall be in accordance with F.- W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). ORDER Rudy Hamblin Philip Reinhardt John Kunz Tim Roche George Laverdiere Pat Spano Carl Legere John K. Williams G. Woodward (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its facility at New Brunswick, New Jersey, copies of the attached notice marked "Appen- dix."19 Copies of said notice, on forms provided by the Regional Director for Region 22, 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. (d) Notify the Regional Director for Region 22, in writing, what steps the Respondent has taken to comply herewith. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Suburban Transit Corp., New Brunswick, New Jersey, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discriminating against its employees by dis- charging them, or refusing to reinstate them, for engaging in a strike or any other concerted activity. (b) In any other manner interfering with, restrain- ing, , or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer the following employees immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalentjobs, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered by reason of Respondent's discrimina- tion against them in the manner set forth in the section of this Decision entitled "The Remedy"; Joseph L. Alfonso Joseph Manga Joseph Peter Castiglione George Millan James Diorio Peter Morelli John Freitas Daniel Rava 19, In the event that this Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discriminate against any employ- ee by discharging or refusing to reinstate him because he has engaged in a strike or any other concerted activity. WE WILL reinstate with backpay the following employees discriminatorily discharged or refused reinstatement for striking: Joseph L. Alfonso Joseph Peter Castiglione James Diorio John Freitas Rudy Hamblin John Kunz George Laverdiere Carl Legere Joseph Manga George Millan Peter Morelli Daniel Rava Philip Reinhardt Tim Roche Pat Spano John K. Williams SUBURBAN TRANSIT CORP. 1233 G. Woodward WE WILL NOT in any other manner interfere with , restrain, or coerce our employees in the exercise of rights guaranteed them by the Nation- al Labor Relations Act. SUBURBAN TRANSIT CORP.