Uppco, Inc.

National Labor Relations Board - Board DecisionsMay 12, 1988

288 N.L.R.B. 937 (N.L.R.B. 1988)

UPPCO, INC. 937 Uppco, Inc. and United Electrical, Radio and Ma- chine Workers of America (UE), Local 1114. Case 13-CA-20183 May 12, 1988 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT On March 15, 1982, Administrative Law Judge Arline Pacht issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The judge found that the Respondent violated Section 8(0(5) and (1) of the Act by refusing to ar- bitrate two grievances arising out of events occur- ring after the expiration of the Respondent's collec- tive-bargaining agreement with the Union. We agree with the judge's conclusion for the following reasons. The parties' collective-bargaining agreement ex- pired on December 13, 1979. The Respondent's employees went on strike the next day and re- mained on strike until December 20. When the strike ended, the Union requested that the employ- ees be recalled to work according to plantwide se- niority, but the Respondent decided to recall them on a departmental basis. The first group of return- ing employees resumed work on December 26. Eventually, all the employees were recalled with the great majority resuming work between January 2 and 7, 1980. Subsequently, the parties executed a new, nonretroactive collective-bargaining agree- ment, effective from February 18, 1980, through December 13, 1982. The expired contract provided that employees' seniority was to be figured on a plantwide basis, was based on length of service, and began accumu- lating the first day of employment with the Com- pany. The agreement also specified five circum- stances under which seniority would be lost: if the employee quit, was discharged for just cause, was absent from work without notifying the Company, did not report to work after a leave of absence, failed to report within 5 days of recall, or remained on layoff status for 3 years. 'The contract also pro- vided for a three-step grievance procedure, culmi- nating in binding arbitration and covering "all dif- ferences, disputes, and grievances that may arise between the Union and the Company." During the 2-month hiatus between the expira- tion of the old agreement and the execution of the new one, the parties continued to dispose of em- ployee grievances under the old contract, without resort to arbitration. On January 15, 1980, 1 howev- er, the Union filed two grievances that were not resolved in the grievance process. First, the Union grieved the Respondent's failure to recall employ- ees to work from the strike by plantwide seniority, relying on the expired contract's provision that plantwide seniority governed in all cases of "lay- offs, permanent job openings, recalls and shift pref- erence." Second, the Union grieved the Respond- ent's refusal to pay holiday pay for the Christmas and New \ Year's holidays to employees who had not been recalled on those days relying on the ex- pired contract's provision for paid holidays for nonprobationary employees who had worked the day before and day after the holiday, if scheduled, and during the week before or the week after the holiday. On February 1 the Respondent denied both grievances in writing. For each, the Respondent noted that the grievance had arisen after contract expiration and therefore was nonarbitrable. In its response to the recall grievance, the Respondent noted first that the strike had begun the day after the agreement expired and that no agreement was in effect between the parties. Consequently, the Re- spondent stated, "The grievance is not arbitrable as it arises after the December 13, 1979 expiration date of the contract." The Respondent also assert- ed that the recall grievance did not state a claim under the expired contract because the strike was prohibited by the expired agreement's no-strike clause and the contract's seniority provisions per- tained only to recalls from layoffs. The Respondent also noted" that the strike was for an unlawful pur- pose because it was intended to force the Respond- ent to enter into an agreement when another labor organization had filed a petition to represent the Respondent's employees. 2 Finally, the Respondent argued that even if the expired contract were appli- cable, the grievance was not timely filed under the contract. In its denial of the holiday pay grievance the Re- spondent, noting that the holidays in question all fell after the contract expired and that no agree- 1 All dates referred to from here on are 1980, unless otherwise stated. 2 After the judge's decision in this case, the Board overturned previous law in RCA Del Canbe, Inc, 262 NLRB 963 (1982), in which it an- nounced that employers would no longer be prohibited from bargaining with or entering into an agreement with a union solely because a rival union had filed a representation petition. 288 NLRB No. 98 938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ment was in effect between the parties, maintained, "therefore, the grievance is not arbitrable as it arises after the expiration date of the contract and does not involve a benefit which occurred, accrued or vested during the life of the contract." The Re- spondent also asserted that, by striking, the Union demonstrated that it no longer considered itself bound by the expired agreement, and that it, there- fore, "was no longer bound by Article XIII on Holiday Pay." The Respondent argued again that the strike was illegal, so that it would be support- ing illegal conduct against itself by granting holi- day pay. The Respondent also asserted, as it had in its response to the recall grievance, that the griev- ance did not comply with the expired contract's time limits for filing. Finally, the Respondent con- cluded that the strikers did not meet the contrac- tual requirements for holiday pay. On February 7 the Union notified the Respond- ent that it did not accept the denial of the two grievances, demanded that they be submitted to ar- bitration, and forwarded a list of arbitrators. On February 14 the Respondent refused to arbitrate the grievances, reiterating its position that neither grievance was arbitrable as bath grievances con- cerned events that occurred after expiration of the collective-bargaining agreement, arose only as a result of an illegal strike in violation of the agree- ment, and were not timely filed under the agree- ment. On February 20 the Union notified the Re- spondent that it still considered the grievances arbi- trable and that, as the Respondent had not selected an arbitrator, it would submit the grievances to the American Arbitration Association (AAA) in ac- cordance with the contract. On February 28 the Respondent again refused to arbitrate both griev- ances, advising the Union that it did not consider the grievances arbitrable for the same three reasons given in its February 14 letter and thus that it was not bound to choose an arbitrator. In subsequent correspondence with the AAA during March, April, and May, the Respondent continued to refuse the Union's efforts to bring both grievances to arbitration and maintained steadfastly that the grievances were not arbitrable and that it would not participate in selecting an ar- bitrator. On March 17 the Respondent informed the AAA explicitly that a request for a panel of ar- bitrators was improper as it "would relate to griev- ances [sic] which arose out of events occurring solely after the expiration of the collective-bargain- ing agreement." The Union continued to press for arbitration and, on May 2, the AAA appointed an arbitrator and scheduled the hearing for June 24. On review of the expired agreement, however, the AAA determined that its appointment of an arbi- trator was inconsistent with the contract's terms and, on June 16, suspended participation. On July 23 the Union filed the unfair labor practice charge on which this complaint is based. In Indiana & Michigan Electric Co., 284 NLRB 53 (1987), the Board clarified the scope of the par- ties' duty to arbitrate grievances under a contrac- tual arbitration clause after the expiration of the agreement. The Board reaffirmed its previous view that the Act imposes no duty to adhere to an arbi- tration procedure without a contractual commit- ment to do so, but held that when an employer has [retained] a contractual duty to arbitrate grievances arising after contract expiration, to repudiate that duty violates Section 8(a)(5). The circumstances under which an employer has a duty to arbitrate N postexpiration grievances are governed by Nolde *os. v. Bakery Workers Local 358, 430 U.S. 243 (1977). Nolde compels arbitration when the parties' agreement does not expressly or by implication negate the presumption that the parties did not intend that their agreement to arbitrate disputes expire with the contract and when the dispute arises under the expired contract. Id. at 252-253. In this case, as in Nolde, the parties' expired agree- ment contained a broad arbitration clause, calling for the arbitration of all differences, disputes, and grievances that might arise between the parties. Moreover, again as in Nolde, the expired agreement in this case contained no language negating the presumption that the parties' contractual obligation to arbitrate grievances extended to postexpiration grievances. Therefore, under the expired contract, the Respondent was subject to "a potentially viable contractual commitment to arbitrate" disputes aris- ing under the contract. Indiana & Michigan Elec- tric, supra. In Indiana & Michigan Electric, the respondent announced categorically that it would not arbitrate hiatus grievances and routinely refused to arbitrate all individual grievances. This course of conduct, the Board held, violated Section 8(a)(5) as a unilat- eral and unqualified abandonment of the arbitration procedure in the expired contract. The Board stated that the respondent's refusal to arbitrate was unlawful because it encompassed not only griev- ances not arising under the contract within the meaning of Nolde, but also grievances that would be arbitrable under Nolde. Ibid. In addition the Board found that the respondent's refusal constitut- ed more than a mere breach of the expired con- tract, but that its "entire course of conduct amounted to a wholesale repudiation of its contrac- tual duty to arbitrate." Ibid. (citation omitted). Since Indiana & Michigan Electric, the Board has applied the analysis set forth therein to a variety of UPPCO, INC 939 factual situations. In each case, the Board looks to the respondent's conduct, taken as a whole, to de- termine whether it has repudiated an obligation to arbitrate hiatus grievances. In Litton Business Sys- tems, 286 NLRB 817 (1987), the majority inferred from the respondent's entire course of conduct that it had repudiated its postcontractual obligation to arbitrate, although the record did not disclose that the respondent had announced an intention not to process hiatus grievances. Id. In like manner, we find that the Respondent's course of conduct in this case demonstrates the unlawful across-the-board re- fusal to arbitrate hiatus grievances characteristic of this violation. In its refusals to arbitrate, the Re- spondent adopted and maintained the position that both grievances were nonarbitrable, grounding its refusal on their having arisen out of events occur- ring after contract expiration. Although the Re- spondent did contend in its initial denial that the holiday_ pay grievance was not arbitrable under standards echoing those devised by courts inter- preting Nolde, 3 it also refused to arbitrate the recall grievance without proffering any such rationale. Further, the Respondent repeatedly contended that the grievances were not arbitrable by reason of contract expiration throughout its correspondence with the Union and AAA, including in its brief to the Board. Finally, the Respondent's handling of the issue of arbitrability failed to differentiate be- tween the holiday pay grievance, which it viewed as not arbitrable under standards echoing those de- vised by courts interpreting Nolde, and the recall grievance, about which its own correspondence in- dicates it had drawn no such conclusion. Indiana & Michigan Electric leaves no doubt that, when a con- tract imposes a Postcontractual obligation to arbi- trate, a party cannot lawfully refuse to arbitrate hiatus grievances on a routine basis without regard to content. It plainly instructs that such a party must approach hiatus grievances on an "ad hoc, case-by-case" basis,4 distinguishing those that are arbitrable under Nolde from those that are not. Here, the Respondent has failed to do so.5 3 See Indiana & Michigan Electric, supra, and cases cited therein 4 & Co., 285 NLRB 746 (1987). 5 The Respondent's conduct is not redeemed by its having given rea- sons other than the expiration of the contract for refusing to arbitrate, as did the employer in Indiana & Michigan Electric, supra Here, as in Indi- ana & Michigan Electric, we do not regard this factor as sufficient to mandate a different conclusion Id. at fn 6. The Respondent has argued that it had no obligation to arbitrate the grievances at issue because the strike that commenced the day after the contract expired violated the contract's no-strike clause, and that thus its obligation to arbitrate ceased with the Union's breach of the no-strike clause We agree with the judge that under the facts of this case this ar- gument is without merit We do not rely, however, on the judge's discus- sion of Buffalo Forge Co. v. Steelworkers, 428 U S. 397 (1976) The Respondent has also argued that it has no obligation to arbitrate the grievances at issue because they arose out of a strike that assumed an unlawful purpose after December, 17, 1979, on which date the Union - Thus, we find that, like the respondent in Indi- ana Michigan Electric, the Respondent, by the course of conduct described above, repudiated its contractual obligation to arbitrate by refusing to ar- bitrate the recall and holiday pay grievances.6 Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order the Respondent to cease and desist and to post the appropriate notice. In addition, we shall order the Respondent, on demand, to arbitrate the recall grievance, as we find that under the facts of this case, the grievance over the Respondent's failure to call the employees back from the strike by, seniori- ty "arises under" the parties' expired contract under the meaning of Nolde, supra. As we noted above, the parties' contract does not negate the presumption that the parties intend- ed that their contractual obligation to arbitrate grievances extends to postexpiration grievances "arising under" the expired contract. Under the Board's reading of Nolde in Indiana & Michigan Electric, "a dispute based on postexpiration events 'arises under' the contract within the meaning of Nolde only if it concerns contract rights capable of accruing or vesting to some degree during the life of the contract and ripening or remaining enforcea- ble after the contract expires." Indiana & Michigan became aware that a rival union had filed a petition for an election The Respondent excepts to the judge's finding that the strike was protected activity and that, even if part of the strike was unprotected, the unpro- tected part was de minnnis in effect Midwest Piping & Supply Co, 63 NLRB 1060 (1945), on which the Respondent's argument is based, has, however, been overruled. See RCA Del Caribe, Inc. 262 NLRB 963 (1982) 6 This case is factually distinguishable from other cases in which the Board has dismissed 8(a)(5) allegations relating to the respondent's han- dling of hiatus grievances. In A H. Belo Corp, 285 NLRB 807 (1987), the Board dismissed an 8(a)(5) allegation against an employer that reject- ed a union demand for arbitration of a hiatus grievance by informing the union that its letter to the Federal Mediation and Conciliation Service re- questing it to appoint a panel of arbitrators to resolve a layoff grievance had "no basis" and was of "no force or effect" Id. In that case the Board found the evidence "ambiguous" concerning the existence of a blanket re- fusal. The Board looked to the respondent's position in its brief to the judge, which it concluded had not raised the argument that its refusal to arbitrate was privileged by contract expiration, and concluded that the respondent's original reply to the union was not inconsistent with its posi- tion before the judge The Board concluded that it was unable to say that a preponderance of record evidence Weighed in favor of a finding of a violation In Gifford-Hill & Ca, the Board dismissed a complaint against an employer that refused to arbitrate three grievances for reasons other than their nonarbitrability under The Nolde analysis. In that case, the Board found that the respondent did not, by those statements, "categori- cally" refuse to arbitrate hiatus grievances within the meaning of Nolde and Indiana & Michigan Electric and that other statements by the re- spondent showed that it had taken an "ad hoc, case-by-case approach to postexpiration arbitration requests" Id, 285 NLRB at 746 By contrast, the Respondent's course of conduct here does not admit of either the am- biguity that the Board found telling in A H Belo Corp., or the ad hoc approach that redeemed the respondent's conduct in Gifford-Hill Here the Respondent expressly maintained that as the contract had expired it had no obligation to arbitrate the grievances Here again the Respondent treated both grievances in the same peremptory manner, without indicat- ing, as the respondent had done m Gifford-Hill, that it was prepared to deal with hiatus grievances on a case-by-case basis 940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Electric, supra. Having examined the postexpiration grievances at issue here and the asserted contract rights on which they are based, we conclude that the rights involved in the holiday pay grievance do not arise under the expired contract within the meaning of Nolde. 7 First, the events giving rise to the grievance occurred after the December 13 ex- piration of the contract. Second, the expired con- tract provided for holiday pay for employees who had completed the probationary period, had worked, if scheduled, the day before and the day after the holiday, unless absent for specified rea- sons, and had worked the week before or the week after the holiday. This language indicates that holi- day pay was not a benefit that accrued or vested during the life of the contract. Third, there is no indication either in this provision or in any other provision of the contract that the right to holiday pay was intended by the parties to ripen or remain enforceable after the expiration of the contract. Thus, we view the contractual right invoked in the holiday pay grievance as akin to those invoked in grievances found nonarbitrable, under the expired contract in Indiana & Michigan Electric, supra. See also American Gypsum Co., 285 NLRB 100 (1987). The recall grievance, however, compels a differ- ent conclusion. Under the expired agreement, indi- vidual seniority determined the order of employee selection "in all cases of layoffs, permanent job openings, recalls and shift preference." As noted, under the expired agreement seniority was based on the length of an employee's service with the Company, accumulated from the first day of em- ployment, and continued to accumulate over time. The Contractual definition of seniority makes plain that, under the parties' agreement, seniority is a benefit that accrued over time during the life of the contract. The contract also specifies the ways by which seniority is lost. Significantly, the contract did not specify that seniority is lost on contract ex- piration. The contract's failure to specify expiration as one of the ways in which seniority rights could be lost indicates that the parties intended that se- niority rights remain enforceable after contract ter- mination. Therefore, the grievance over the Re- spondent's refusal to recall employees by plantwide seniority following the strike involves a right worked for and accumulated during the term of the contract and intended by the parties to survive 7 Consistent with Member Johansen's partial dissent in Indiana & Michigan Electric Ca, supra, he concurs in the majority's conclusion that the Respondent violated Sec. 8(a)(5) of the Act by repudiating its con- tractual obligation to arbitrate after the contract expired However, he would find that both the vacation grievance and the recall grievance were "arguably" over provisions of the expired contract and thus "arose under" the contract within the meamng of Nolde and would order the Respondent to arbitrate both gnevances. contract expiration. Accordingly, we conclude that, under the facts of this case, the recall griev- ance "arises under" the expired contract within the meaning of Nolde, and that the Respondent has a contractual obligation to arbitrate the postexpira- tion grievance over its refusal to recall employees by seniority. ORDER The National Labor Relations Board orders that the Respondent, Uppco, Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with United Electrical, Radio and Machine Workers of America (up, Local 1114 as the exclusive representative of the employees in the appropriate bargaining unit by generally repudiating any obligation to arbitrate grievances arising after the expiration of the 1976- 1979 collective-bargaining agreement until a new contract took effect. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, process the grievance concerning the recall of employees following the conclusion of the strike on December 20,1979, under the arbitra- tion provisions contained in article XV of the 1976-1979 contract. (b) Post at its Chicago, Illinois facility copies of the attached notice marked "Appendix." 8 Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive ,days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. MEMBER CRACRAFT, dissenting. I dissent from my colleagues' finding that the Respondent's declining to submit a specific griev- 8 If 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 Nation- al 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" UPPCO, INC. 941 ance to arbitration constitutes a general repudiation of the contractual obligation to arbitrate. I summa- rize briefly the facts, as the majority sets forth a detailed statement of facts. The parties contract expired on December 13, 1979. The next day employees went on strike and remained on strike until December 20, 1979. Though the Union requested that the strikers be re- called on the basis of plantwide security, the Re- spondent recalled employees on a departmental basis. By January 7, 1980, 1 all employees were re- called to work. The parties subsequently executed a new nonretroactive collective-bargaining agree- ment effective from February 18, 1980, through December 13, 1982. During the 2-month contractual hiatus, the par- ties disposed of about a dozen grievances under the expired contract. The parties failed to resolve two grievances which were filed by the Union on Janu- ary 15: (1) the failure to recall employees from a strike based on plantwide seniority, and (2) the fail- ure to pay for Christmas and New Year's holidays to employees who had not yet been recalled. The Respondent, in denying the recall grievance, stated five separate grounds for refusing to arbitrate these grievances. Specifically the Respondent asserted that the grievance was not arbitrable because it arose after the contract expired, that there was no claim under the contract because the strike was prohibited, that the contract dealt with recall rights from a layoff but not from a strike, that the griev- ance was untimely in any event, and that the rein- statement order was based on startup needs and stewards were among the first recalled. Similarly, in denying the holiday pay grievance, the Respond- ent asserted several bases for its denial, namely, that the grievance was not arbitrable because the holiday dates were after the contract expired and therefore the benefit did not accrue during the con- tract's life, that the strike violated the no-strike clause, thereby relieving the Respondent of its obli- gation under the holiday provision, that as the strike was illegal the Union was in no position to demand holiday pay, that the grievance was un- timely, and that the employees were not eligible for holiday pay under the contract's terms because they were not scheduled to work the days before and after the holidays. In Indiana & Michigan Electric Co., 284 NLRB 53 (1987), the Board set forth the test for determin- ing whether an employer unlawfully refused to ar- bitrate grievances after a contract has expired. The Board emphasized that the focus must be whether the employer's conduct amounts to a wholesale re- 1 All dates referred to from here on ale 1980, unless otherwise noted pudiation of the collective-bargaining agreement, as opposed to a breach of contract. Applying the test in Indiana & Michigan, the Board found an 8(a)(5) violation because the employer initially announced that it would not arbitrate any grievances filed after the contract expired, did not limit its refusal to arbitrate to a particular grievance or class of grievances, and then repeatedly refused to arbitrate grievances that the union sought to arbitrate. In this case, the Respondent's conduct differed markedly from that found unlawful in Indiana & Michigan Electric. There is no evidence that the Respondent declared it would not arbitrate any postexpiration grievances. Rather, the Respondent appears to have approached grievances on a case- by-case basis. For the two grievances not resolved through the grievance procedure, the Respondent gave reasons responsive to the particulars of each grievance and based on the language of the con- tract for its position that the grievances were not arbitrable under the expired contract. In fact, from the beginning, the Respondent included among its reasons for denying the holiday grievance its view that the grievance involved benefits that had not "occurred, accrued or vested during the life of [the] contract"—a reason that echoes the standard for differentiating arbitrable from nonarbitrable postexpiration grievances under court and Board decisions. See Indiana & Michigan Electric, supra, and cases cited therein. Throughout its correspond- ence with the Union over these grievances the Re- spondent continued to base its refusal to arbitrate the grievances on its view that they had not been timely filed under the contract and arose out of an illegal strike in violation of the contract as well as on their having occurred after the contract expired. Finally, during the short contractual hiatus, the parties resolved a large number of grievances. Contrary to my colleagues, I find that while the Respondent here, in refusing to arbitrate two griev- ances, may have breached its contract with the Union, the Respondent's conduct falls far short of a wholesale repudiation of its contractual commit- ment to arbitrate hiatus grievances that arise under the contract. Thus, the General Counsel has failed to sustain her burden of proof that the Respond- ent's refusal to arbitrate the two grievances, for reasons including their occurrence after the con- tract expired constitutes a violation of the Act. The Respondent's course of conduct during the contractual hiatus consisted of the following: con- tinuing to process grievances, the vast number of which were resolved to the parties' satisfaction, and refusing to arbitrate two specific grievances, one of which under today's decision the Respond- ent is not obligated to arbitrate. I do not believe 942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD this conduct reveals a rejection of all hiatus griev- ances regardless of content, nor will I infer such a rejection from the Respondent's opinion that the expiration of the contract along with other factors rendered the two grievances nonarbitrable.2 2 My findings are based on a careful examination of the Respondent's entire course of conduct, the mode of analysis mandated by Indiana & Michigan Electric, and followed by the Board in subsequent cases con- trary to my colleagues, I do not find A. H Belo Corp, 285 NLRB 807 (1987), and Gifford-Hill & Co, 285 NLRB 746 (1987), distinguishable. In A. H Belo Corp, the Board dismissed an 8(a)(5) allegation against an em- ployer that rejected a union demand for arbitration of a hiatus grievance informing the union that its demand has "no basis" and was of "no force or effect." Id. While conceding that the respondent believed that contract expiration privileged this refusal, the Board noted that it was not clear that the respondent had taken its position "without reference to the con- tent of the grievance" and that its position was consistent with its argu- ment to the judge that the grievance did not "arise under" the contract Id. In Gifford-Hill the Board dismissed a similar complaint against an em- ployer that stated that it would not follow the arbitration procedure of the expired contract In that case, the Board found that despite such statements, the respondent's course of conduct showed that it had taken an "ad hoc, case-by-case approach to postexpiration arbitration request." Id. The Respondent in this case, like the employers in A. H. Belo Corp. and Gifford-Hill, has not evinced the disregard for the content of griev- ances and the undifferentiated response to grievances characteristic of the violation in Indiana & Michigan By quoting selectively from the Respondent's correspondence, my col- leagues focus on one of the Respondent's several reasons for refusing to arbitrate in a manner inconsistent with the analysis mandated by Indiana & Michigan Electric and followed in A. H Belo Corp and Giffbrd-Hill. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT refuse to bargain with United Electrical, Radio and Machine Workers of Amer- ica (UE), Local 1114 as the exclusive representa- tive of the employees in the appropriate bargaining unit by generally repudiating any obligation to ar- bitrate grievances arising after the contract expira- tion. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, process the grievance con- cerning the recall of employees following the con- clusion of the strike on December 20, 1979, under the arbitration provisions contained in article XV of the 1976-1979 contract. UPPCO, INC. Robert Perkovich, Esq. and Paula Goodgal, Esq., for the General Counsel. Irving M Geslewitz Esq. (Adams, Fox, Marcus, Adelstein & Gerding), of Chicago, Illinois, for the Respondent. DECISION STATEMENT OF THE CASE ARLINE PACHT, Administrative Law Judge. On a charge filed by United Electrical, Radio and Machine Workers of America, Local 1114 (UE or the Union), a complaint issued on February 23, and was amended on September 25, 1981, alleging that Respondent Uppco, Inc. violated Section 8(a)(5) and (1) of the National Labor Relations Act (the Act). In substance, the com- plaint alleges that the Respondent unilaterally altered the terms and conditions of employment by unlawfully refus- ing to arbitrate grievances based on events that occurred subsequent to the expiration of the parties' collective-bar- gaining agreement and before the effective date of their subsequent agreement. Although the Respondent admit- ted that it refused to arbitrate postcontract disputes, it denied that such refusals violated the Act. A hearing at which all parties were represented was held in Chicago, Illinois, on October 13 and November 19, 1981. On the entire record, my observation of the demeanor of the witnesss, and consideration of posthearing briefs, I make the following FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, an Illinois corporation with a plant and office located at 5610 West Bloomingdale, Chicago, Illinois, is engaged in the manufacture of subfractional horsepower electrical motors. During the past calendar year, a representative period, in the course and conduct of its business operations, Respondent sold and shipped materials valued in excess of $50,000 from its Chicago, Illinois facility directly to points outside the State of Illi- nois. On the foregoing facts, the General Counsel al- leges, the Respondent admits, and I find that the Re- spondent is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Charging Party, UE, is and has been at all times material a labor organization within the meaing of Sec- tion 2(5) of the Act. UPPCO, INC. 943 III. THE ALLEGED UNFAIR LABOR"PRACTICES A. The Parties' Bargaining History The Union has been the collective-bargaining repre- sentative for Uppco's production and maintenance em- ployees since 1976. In December of that year, the Re- spondent and the Union executed a 3-year collective-bar- gaining agreement that expired on December 13, 1979. Several months prior to this date, the Union served timely notice of its intent to terminate the agreement. Negotiations for a new contract took place over the next several months but the parties were unsuccessful in reaching an accord. On December 13, the employees re- jected Respondent's final offer and voted to strike. The following morning, December 14, a strike commenced in support of the Union's bargaining demands. Pickets were posted at the facility bearing signs calling for higher wages as well as for insurance and pension benefits. On the morning of December 17, approximately 200 employ- ees assembled for picketing purposes outside the facility. Thereafter, only 10 to 20 employees per shift were sta- tioned at the plant during the course of the strike that lasted at least through December 19. 1 During the course of the strike, approximately 40 or 50 employees of a 325- man work force returned to work. In addition, the Re- spondent hired 30 to 40 replacements. The presence of the pickets was sufficient to deter all deliveries to the fa- cility during the course of the strike. On the day the strike commenced, a local of the Metal Processors' Union filed a petition with the Board seeking an election among the same employees represented by the UE. Although several of Respondent's witnesses tes- tified that the Metal Processors were openly soliciting signatures on authorization cards in front of the plant on December 14, union representatives denied knowledge that a petition had been filed until a copy of that petition was received at the union hall in midafternoon on De- cember 17. B. The Strike Ends Realizing that the Respondent could neither recognize nor bargain with it once a rival union's petition was pending, the UE negotiating committee decided the fol- lowing morning to schedule a meeting of the unit mem- bers for December 20 to vote on halting the strike. UE officials testified that the effort to contact all unit mem- bers, most of whom were Spanish speaking, about the meeting consumed the better part of the next 2 days. They further explained that it was a UE practice, based on a provision in the Union's constitution, to obtain ap- proval of the membership before terminating a strike.2 The Respondent's witnesses contended that picketing continued at least through the early mormng hours of December 20, while the UE witnesses claimed that the picketing concluded on the evening of Decem- ber 19. It may be that some unit members arrived at the plant prior to the 8 a.m, meeting on December 20 bearing placards. They apparently left, however, when the union meetmg commenced Employees again milled outside the plant after 10 a.m, but they Were present to follow the out- come of the negotiating committee's meeting with management and not to picket. 2 The provision cited by the UE agents as justifying a membership vote on the question of concluding the picketing and the strike, reads: From December 17 through the early morning hours on December 20, pickets remained stationed outside the plant, ostensibly as a means of contacting other employ- ees about the forthcoming meeting. Approximately 175 employees gathered at 8 a.m. on December 20 and voted to end the strike. Shortly there- after, the Union's negotiating committee met with man- agement officials to relay this decision. The parties dis- agreed sharply whether the management representatives at this meeting guaranteed there would be no reprisals against any of the returning employees. On the one hand, UE Secretary-Treasurer Wojewocki testified that Re- spondent assured the Union there would be no recrimi- nations against the strikers. Uppco personnel maintained, on the other hand, that the only comment made about reprisals came when Director of Labor Relations Salva- dor Isais sought the Union's assurance that the strikers would not retaliate against those employees who had crossed the picket lines. Because Isais' testimony on this point was confirmed by Union Agent Guillermo Brzos- towski, I am inclined to accept the Respondent's version of this exchange. Uppco did agree to take back all the workers, howev- er, and obtained the Union's consent to resume oper- ations, department by department. The meetings con- cluded with the parties agreeing to meet later that after- noon to discuss recall arrangements. The Respondent's representatives, however, made no response to the Union's request that the strikers be reinstated on the basis of plantwide seniority. Isais subsequently canceled the afternoon meeting, advising the Union that the Company would conduct the recall in a manner that best served its interests. The following day, management prepared a schedule that recalled employees on a departmental basis but not in accordance with plantwide seniority. On Friday, De- cember 21, Isais, with the aid of several other manage- ment officials, telephoned the employees within a span of less than 4 hours and asked them to appear at the facility the next morning. Accordingly, approximately 250 em- ployees gathered that Saturday and received recall schedules under a cover letter which stated: "Those who make [an] unconditional offer to return to work will be brought back to work." Pursuant to the schedule, the first group of strikers was reinstated on December 26 and, between that date and December 28, worked solely on inventory. Plant Manager Arthur Joseph explained that normal operations did not resume until January 2. He attributed this delay in production to the fact that the picketing successfully blocked the delivery of goods and resulted in greater re- ductions of the Company's supplies that were purposely depleted at the year's end and even without the strike. Eventually, all the strikers were returned to work, with the greatest majority being recalled between January 2 and 7, 1981. Any stnke related to the negotiation of a new collective bargain- mg contract or the renewal of an existing collective bargaining con- tract and all contract settlements must be approved by vote of the membership of the local or locals involved. 944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD C. The Respondent Rejects Arbitration On January 2, 1980, the Respondent, the UE, and the Metal Processors agreed to a stipulation for a consent election to be held on January 25, 1980. The UE won the election handily and was certified as the collective- bargaining representative for the unit employees on Feb- ruary 4. 3 Thereafter, on February 8, the parties resumed negotiations and several weeks later executed a collec- tive-bargaining agreement effective from February 18 through December 13, 1983. The Union's request to make the contract retroactive to December 14, 1979, was rejected by Respondent. During the hiatus between the expiration of the 1976 agreement and the execution of the 1980 contract, the parties continued to dispose of employee grievances without resort to arbitration. On January 15, 1980, how- ever, the Union filed two grievances that were not re- solved at the preliminary stages of the grievance proce- dure. One such grievance addressed the Respondent's failure to recall the striking employees according to plantwide seniority in violation of article 10 of the 1976 collective-bargaining agreement; 4 the other concerned the Respondent's admitted refusal to pay employees who were not yet recalled for the Christmas and New Year's holidays. 5 The Respondent witnesses explained that the Company processed grievances during this interim period as a matter of good personnel relations and not because it was bound to do so. It rejected the Union's request to submit these two grievances to arbitration, however, insisting it had no duty to adhere to the terms of the expired 1976 agreement. That agreement provided for a three-step grievance procedure culminating in binding arbitration as to "all differences, disputes, and grievances that may arise be- tween the Union and the Company." Article XXIX of the agreement also contained the fol- lowing no-strike obligation: Section 1. The Union agrees not to call or sponsor a strike, work stoppage, slowdown or sympathy strike during the life of the agreement unless the Compa- ny refuses to arbitrate a grievance as defined in this agreement. . . . The Company agrees that there shall be no lockouts during the term of this agree- ment. 3 Out of 326 eligible voters, 206 votes were cast for the UE, and 28 for the Metal Processors with 9 challenged ballots. 4 Art, X, sec. 1 stated: Seniority shall be plantwide based upon length of service with the Company in years, months and days and will accumulate from the first day of employment with the Company. Sec. 2 of the same article required that plantwide seniority shall govern "[In all cases of layoffs, permanent job openings, recalls and shift prefer- ence." 5 Art. XIII provided that the days before Christmas and New Year's Day were paid holidays for employees who (a) completed a 30-day pro- bationary period, (b) worked on the day preceding and following the hol- iday if they were scheduled to do so, and (c) performed work during the week preceding or following the week in which the holidays fell. IV. DISCUSSION A. The Grievances Arguably Arose Under the 1976 Agreement In reliance on Nolde Bros. v. Bakery Workers Local 358, 430 U.S. 243 (1977), the General Counsel contends that the grievances at issue here arguably arose out of the parties' 1976 collective-bargaining agreement, thereby imposing on the Respondent an obligation to arbitrate those disputes beyond the expiration date of that agree- ment. The Respondent argues, to the contrary, that Nolde is inapplicable to the facts of this case for the grievances at issue are wholly unrelated to any terms of the defunct agreement.6 Prior to Nolde, the Board took the position that an em- ployer did not violate the Act by refusing to arbitrate disputes during the hiatus between the expiration of a former contract and the execution of a new one since the duty to arbitrate is a matter of contract and a party can be required to arbitrate a dispute only if he has agreed to do so. Hilton-Davis Chemical Co., 185 NLRB 241 (1970). Nolde did not alter these principles. Rather, it simply held that an employer's agreement to arbitrate in the postcontractual period will be presumed unless a con- trary intent is clearly manifested. Specifically, in Nolde, the Supreme Court ruled that an employer was obligated to arbitrate a union's claim for severance pay that ac- crued during the term of the expired agreement, but to which the employees became entitled only after the plant closed several days after the cancellation of the parties' collective-bargaining agreement. In so ruling, the Court reaffirmed-the importance of the strong "federal labor policy favoring arbitration." Id. at 254. To effectuate this policy, the Court created a presumption of arbitrability which survives the expired contract where the dispute is arguably over a provision arising out of the agreements, unless that presumption is negated expressly or by clear implication. Id. at 255. In applying Nolde to the instant case, two questions must be resolved: whether the disputes giving rise to the instant grievances arguably are related to the terms of the 1976 agreement and, if so, whether the arbitration clause survived the expiration of the agreement. In addressing the first question, Respondent maintains that the Nolde presumption of arbitrability arises only when employees have accrued certain rights during the life of the contract that become due after the contract's expiration. Because the grievances in the instant case in- volve nonaccruable interests and arose wholly after the expiration of the 1976 agreement, Nolde does not apply. The Respondent's reading of Nolde is too narrow. Al- though the severance pay provided for in the Nolde col- lective-bargaining agreement was in the nature of an ac- crued or vested right, I do not construe the Supreme 6 The Respondent also submits that because Nolde was litigated under Sec. 301 of the Act, it is inapplicable to an unfair labor practice proceed- ing. The Supreme Court has long since laid to rest the argument that the enforcement of a contractual obligation prevents the National Labor Re- lations Board from exercising its jurisdiction to remedy the same conduct where it also may constitute an unfair labor practice See Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95, 101 fn 9 (1962). UPPCO, INC. 945 Court's decision in NoIde as resting on that ground. The Court noted that both the union's claim for severance pay and the employer's refusal to pay that claim were "based on their differing perceptions of a provision of the . . collective-bargaining agreement." Thus, the Court reasoned that "whatever the outcome, the resolu- tion of that claim hinges on the interpretation ultimately given the contract clause providing for severance pay. The dispute therefore, although arising after the expira- tion of the collective-bargaining contract, clearly arises under that contract." 430 U.S. at 249. Accord: Federated Metals Corp. v. Steelworkers, 648 F.2d 856 (3d Cir. 1981), Moreover, neither the Board nor the courts have limit- ed the Nolde presumption of arbitrability to claims in- volving only accrued or vested rights. The Nolde case itself cites with approval a prior Supreme Court decision, Piano & Musical Instrument Workers Local 2549 v. W. W Kimball Co., 379 U.S. 357 (1964), reversing 333 F.2d 761 (7th Cir. 1964). In Kimball, the Seventh Circuit Court of Appeals reversed a district court holding that a dispute over rehiring discharged employees according to seniori- ty was arbitrable even though the dispute arose several days after the termination of the parties' collective-bar- gaining agreement and after the closure of one plant and the opening of another. The Supreme Court summarily reversed the Seventh Circuit, citing John Wiley & Sons v. Livingston, 376 U.S. 543 (1964), a case holding arbitrable a dispute over severance pay under an expired labor con- tract. In American Sink Top, 242 NLRB 408 (1979), the Board expressly applied Nolde in requiring the arbitra- tion of an employee's postcontract discharge that was al- leged to have involved a term of the parties' collective- bargaining agreement.7 The Respondent suggests that the Board retreated from American Sink's expansive reading of Nolde in a more recent decision, Cardinal Operating Co., 246 NLRB 279 (1979). In Cardinal, the Board affirmed the adminis- trative law judge's decision that an employer did not vio- late Section 8(a)(5) in refusing to arbitrate a postcontract grievance protesting an employee's discharge. In reach- ing this decision, the Cardinal administrative law judge relied principally on Hilton-Davis without any reference to Nolde. I find no inconsistency between the reasoning in ( Car- dinal and that in American Sink for each addressed a dif- ferent issue. Neither Nolde nor American Sink altered the Hilton-Davis rule, applied in Cardinal, that an employer has no duty to arbitrate grievances that arise during a contractual hiatus where he has not agreed to do so. In Cardinal, however, the administrative law judge focused solely on the factual question of whether the parties ex- pressly extended their contract. Concluding that no 7 The Respondent contends that the Federal courts have taken a narrow view of Nolde. An examination of the cases cited by the Re- spondent does not support its contention. Thus, in Milwaukee Typographi- cal Union 23 v. Madison Newspapers, 444 F S. 1223 (W.D. Wis 1978), no argument was made that the grievances at issue arose under the expired contract. In Teamsters Local 636 v. 1 C. Penney Co., 484 F.S. 130 (WD Pa. 1980), the court expressly noted and did not question the Board's ap- plication of Nolde to a postcontract discharge, but found that the Nolde presumption was rebutted by contractual language limiting grievances to disputes ansing during the term of the agreement ,See also Hayes v. Na- tional Football League, 469 F.S. 252 (C D Calif. 1979). agreement had been reached, the judge relied heavily on the fact that the contract itself required that any under- standing between the parties be committed to writing. (No such restriction exists in the 1976 agreement be- tween the Respondent and the Union.) Further, although the judge in Cardinal did not mention Nolde, he did cite S. W. Motor Lines, 236 NLRB 938 (1979), in which the administrative law judge found as an alternative ground for his decision that the Nolde presumption of arbitra- bility was negated by clear implication.° Thus, neither S & W Motor Lines nor Cardinal turned on the nature of the disputes nor whether those disputes arose under the respective contracts, which was the core issue in Ameri- can Sink. The Respondent's contention that Cardinal un- dermines the continued viability of American Sink is therefore incorrect. Accordingly, the lessons of Nolde and American Sink are applicable not only to grievances involving accrued rights, but also to disputes such as those involved herein, which call for the interpretation of provisions in the expired agreement covering recall and holiday pay. If a right to reinstatement in order of seniority or a right to holiday pay exists at all, it is solely by virtue of the parties' agreement. Even if Nolde were construed as applying only to ac- crued rights, as Respondent suggests, I nevertheless would find that the grievances at issue here involve ac- crued benefits earned by the employees. As noted earlier, article 10, section 2 of the parties' 1976 agreement pro- vided that "in all cases of layoff, permanent job open- ings, recall and shift preference, plantwide seniority shall govern." Section 1 provides that "seniority shall be plantwide based on length of service with the company in years, months and days, and will accumulate from the first day of employment with the Company." Thus, se- niority that determined the order of recall under the agreement, no less than severance pay or pension bene- fits, was based on an employee's length of service; it was an earned right based on accumulated time in the Com- pany's employ. Similarly, holiday pay was available only if an employee completed a 30-day probationary period and worked the week preceding or following the par- ticular holiday. It, too, was in the nature of an earned benefit.° Moreover, if an arbitrator subsequently deter- mines that the recall of striking employees should have been based on seniority, then certainly an argument can be made that those same employees also were deprived of holiday pay.1° 8 Specifically, the judge found that contractual language restricting the terms served by members of a joint arbitration board to the life of the contract revealed an intent to terminate that overcame the Nolde pre- sumption of arbitrabihty. See generally Zdanok v Glidden Co., 288 F 2d 99 (2a Cir. 1961), affd. on other grounds 370 U.S. 530 (1962), which held that employees could seek damages for breach of the semonty provisions of an expired collec- tive-bargaining agreement since seniority was a vested interest and Ma- chinists Local 595 v. Howe Sound Co., 350 F,2d 508 (3d Cir 1965), in which the court held a claun for pay for a hohday that occurred after the plant shut down and the labor contract expired was arbitrable under an agreement providing for such payment where employees worked 30 days prior to the holiday 10 This is not to express any conclusions as to the results an arbitrator might reach on the merits of the grievances submitted 946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Having concluded that the disputes over the reinstate- ment of the striking employees and holiday pay arguably arose under the 1976 agreement, the next question to be resolved is whether the arbitration clause of that agree- ment survived its expiration. It is true, as the Respondent contends, that its willing- ness to settle grievances short of arbitration does not give rise to an inference of an implied extension of the lapsed contract, for such conduct is required as a matter of law. See Hilton-Davis, supra at 242. It is equally true that neither the Respondent nor the Union requested an extension of the agreement past its expiration date. More- over, there was no language in that agreement that ex- pressly or impliedly extended its terms beyond Decem- ber 13, 1979. All the above facts prove is that the agree- ment terminated and the parties did nothing to reverse that termination. Nolde, however, only applies to situa- tions in which the contract has expired and contained no language affirmatively stating that the arbitration clause remained in effect. Thus, the evidence adduced by the Respondent falls far short of the unmistakeable proof Nolde requires to rebut the presumption that the arbitra- tion clause outlasted the contract's expiration. B. The Strike Did Not Relieve the Respondent of its Duty to Arbitrate The Respondent next asserts that because the no-strike pledge in a collective-bargaining agreement is the quid pro quo for the arbitration clause, a union's strike re- lieves the employer of its corresponding duty to arbi- trate. Applying this theory to the instant case, the Re- spondent submits that when the Union struck, it demon- strated that it was no longer bound by the terms of the contract and therefore Uppco was released from its obli- gation to arbitrate following the contract's termination. In defining the reach of the no-strike clause during the contract's term, the Supreme Court has held that the prohibition on self-help is only as extensive as the griev- ance arbitration procedure that the contract affords. See Buffalo Forge Co. v. Steelworkers, 428 U.S. 397, 407-408 (1976). Simply put, when a union forgoes the right to strike, it does so only with respect to disputes that are arbitrable. The Board had occasion to consider the coterminus in- terpretation of no-strike and arbitration clauses in a post- contractual context in Goya Foods, 238 NLRB 1465 (1978). The nice issue presented in Goya was whether employees who struck after their contract, which con- tained a no-strike clause, expired, to protest preexpiration discharges, were engaged in protected activity where ar- bitration was the agreed-on means of settling the griev- ances that arose from those discharges. Finding the dis- charges were lawful, the Board reasoned the no-strike clause survives contract termination "to the [same] extent as the duty to arbitrate over issues created by or arising out of the expired agreement." Id. at 1467. Thus, if the duty to arbitrate survives so too should the duty not to strike. Because the strike in Goya was over the very issues that the arbitration clause was designed to resolve, the Board found that it was violative of the no-strike clause and therefore unprotected. On evaluating the parties' agreement in light of the principles set forth in Goya, I find no basis for inferring that the UE employee right to engage in an economic strike was relinquished. The no-strike prohibition in arti- cle 10, section 1 of the contract at issue here clearly was posed as the quid pro quo for recourse to the grievance machinery; the arbitration procedure, in turn,-was limited to disputes and grievances between the parties. There- fore, the economic issues at the root of the UE strike were not cognizable under the contractual grievance and arbitration procedure. Because the issues involved in the strike were not arbitrable, a strike over those issues was not proscribed by the no-strike clause. See Steelworkers v. Conval-Penn, Inc., 635 -F.2d 1071 (3d Cir. 1980), cert. denied 451 U.S. 985 (1981), in which the court found that a lengthy economic strike was not prohibited by the parties' no-strike clause and, therefore, did not alter Con pal-Penn's duty to arbitrate postcontractual griev- ances involving severance and vacation pay and other employee benefits that arose after the contract expired and the plant was closed. The Respondent maintains that the instant case is fac- tually distinguishable from Conval-Penn because the grievances there had nothing to do with the strike, Whereas the grievances in the instant case would not have occurred but for the strike. I am not persuaded by the Respondent's argument for in Nolde and its progeny, intervening events often triggered the disputes that led to arbitration. For example, plant closure gave rise to the disputes for which arbitration was sought in Nolde, supra; W W. Kimball, supra; and Conval-Penn, supra. As long as the strike in the present case was protected and not in violation of the contractual no-strike agreement, I perceive no reason to treat the grievances that arose after that contingency differently from those that arise after plant closure. Accordingly, I find that the UE strike did not relieve the Respondent of its postcontrac- tual duty to arbitrate. By abandoning the arbitration pro- cedure set forth in the 1976 agreement and specifically by refusing to arbitrate grievances concerning the method of reinstating employees and holiday pay, I con- clude that the Respondent violated Section 8(a)(5) and (1) of the Act." C. The Strike Was Not Unprotected The Respondent's final argument is based on its con- tention that after December 17, when the UE obtained knowledge of a competing labor organization's election petition, the strike took on an unlawful purpose and, therefore, was unprotected. Because an employer does not violate the Act for discharging employees engaged in such unprotected conduct, the Respondent reasons that, by the same token, it has not violated Section 8(a)(5) by refusing to arbitrate grievances that stemmed from the unprotected strike activity. " Respondent cites S & W Motors, supra, to support Its argument that the Union's rejection of a no-strike pledge released the employer from its duty to abide by the terms of an extension agreement of its contract That case is distinguishable, however, for the no-strike clause that prohibited any strike occurring during the term of a negotiated extension agreement was far broader than the no-strike clause at issue here. UPPCO, iNC. 947 The General Counsel poses a fourfold response to this argument. First, he submits that Respondent condoned the employees' conduct by agreeing to rehire them; second, that the strike never had an unlawful purpose be- cause the Union discontinued its activity as soon as possi- ble; third, under Board precedent, the strike was not un- protected; and fourth, the Respondent had a duty to bar- gain after that strike concluded, whether it was protect- ed or unprotected." Each of these responses will be considered seriatim. The General Counsel's contention that Uppco officials allegedly promised not to retaliate against the returning workers is not founded on fact. As I found above, the Respondent made no such promise. Rather, it sought as- surance that the strikers would not harm or threaten those who had worked behind the picket line. The Com- pany's agreement to reinstate the strikers in order to serve its own best interests is not sufficient evidence that it condoned the employees' involvement in strike activi- ties. The General Counsel next maintains that the strike continued only until the employees could be assembled to vote, in conformance with the Union's constitution. It may be true, as the Respondent points out, that the con- stitution did not dictate that a vote had to occur to end the strike. But it was not unreasonable for the UE's lead- ership to follow such a practice, since authorization was required to approve the strike in the first instance. Having decided to convene such a meeting, however, the Union did not act with exemplary speed in attempt- ing to summon the strikers. There is no reason the UE's efforts to telephone unit members had to consume 2 days when management accomplished the same task in one- eighth of that time 13 I conclude, therefore, that the 12 The Respondent urges that the General Counsel should be estopped from arguing in this proceeding that the strike was protected because it took a contrary position when denying Uppco's appeal of the Regional Director's refusal to issue a complaint on its charge that the strike violat- ed Sec. 8(b)(1)(A) of the Act. The General Counsel's passing reference to the unprotected character of the UE stuke was not at all essential to the central purpose of that letter, which was its ruling that the strike was not Illegal More important, the General Counsel's letter denying Respond- ent's appeal was given in a separate matter. Although that letter is not, of course, a final judgment, the doctrine of collateral estoppel that deals with the effect of final judgment in subsequent litigation of a different cause of action is, by analogy, relevant here. In the leading case to ex- plore that doctrme, Commissioner of Internal Revenue v Sunnen, 333 U.S. 591, 601-602 (1948), the Supreihe Court stated. But if the relevant facts in , the two cases are separable, even though they be similar or identical, collateral estoppel does not govern the legal issues which recur in the second case . . In that situation, the Court is free in the second proceeding to make an independent examination of the legal matters at sale. Based on this language, I conclude that the General Counsel was not es- topped from independently examining the legal matters at issue here, which involve a separate set of facts, even though they are similar to the facts relied on its earlier letter 13 Respondent also suggested that the Union should have acted more promptly because it knew of the Metal Processors' organizational activity even before December 17 Even assuming, arguendo, that the UE leader- ship was advised of the rival union's efforts to obtain signed authorization cards, such knowledge does not compel an inference that the UE should be charged with knowing when, if ever, an election petition wOuld be filed. union leadership prolonged the strike unnecessarily. However, it is doubtful that the employees could have been assembled for that membership meeting much before the evening of December 18 or early December 19 even if the Union had acted , with greater expedition. Thus. under the best of circumstances, it is not likely that the strike could have ended more thau a day or two before December 20. This brief delay, even if arguably unprotected, must be viewed as de minimis. Therefore, it is fair to infer that whether the strike ended on the evening of December 18 or in the early morning hours of December 19, the Respondent still would have been confronted with problems attending the recall of the strikers. The Respondent claims that if the strike and especially the picketing concluded on December 17, production could have resumed immediately and all the employees would have been returned forthwith. Arthur Joseph ad- mitted, however, that the Company had purposely re- duced its inventories to very low levels at the year's end even without the strike. The failure to receive deliveries for the 2 days that the strike arguably was unprotected could not then solely account for the "Respondent's in- ability to resume prior to December 26. The legal underpinnings of Respondent's argument that the strike was unprotected after December 17 has its source in the Midwest Piping doctrine, 14 which holds that it is an unfair labor practice for an employer to grant ex- clusive recognition to one of two rival unions when a question concerning representation is pending before the Board. The Respondent then argues that where, as here, a union continues to strike after it has knowledge of a competing union's election petition, the purpose of the strike, that is, to compel the employer to recognize and contract with it, calls for the commission of an unfair labor practice and, therefore, is unprotected. After considering the same argument in Hoover Co., 90 NLRB 1614 (1950), enfd. 191 F.2d 380 (6th Qir. 1951), and reconsidering it in St. Regis Paper Co., 232 NLRB 1156 (1978), enfd. 623 F.2d 488 (6th Cir. 1980), the Board decided to adhere to its construction of the Act that the existence of an outstanding election petition filed by one labor organization does not withdraw protection from concerted activity in support of the recognitional or bargaining derhands of another labor organization. The Board recognized in Hoover and St. Regis that the mere possibility of an employer's violating Midwest Piping is a matter of conjecture for substantial uncertain- ties inhere in such situations. Before recognition is grant- ed, a number of events might occur that would render exclusive recognition of a majority representative per- fectly lawful—the rival union might withdraw its peti- tion, the Board might dismiss the petition, or the employ- er might grant recognition to each union on a members- only basis. In light of these uncertainties, the Board re- fused to hold as a matter of law that the pending petition of one union caused the recognitional activity of another union to lose its protection. 14 Midwest Piping & Supply Co., 63 NLRB 1060 (1945). 948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The rationale of Hoover and St. Regis is particularly applicable to the circumstances of this Case. Here, the al- legedly unprotected portion of the strike lasted no more than 2-1/2 days, part of which time was spent by the union leadership in attempting to assemble the employees for the purpose of concluding the strike. In contrast, the strike in Hoover end-tired for several weeks not only after a petition was filed but after the Board set a date certain for the election. The strike in St. Regis did not begin until after the rival union's petition had been filed and an election date scheduled. Further, in St. Regis, the Board recognized that to permit an employer to rely on the Midwest Piping doc- trine could work unequitable results. Thus, the Board stated, "Employees engaged, then, in what would other- wise be classic protected activity . . . could lose that status solely by reason of a condition unkown to them." St. Regis Paper Co., supra at 1157. The same equitable concerns are relevant here. The Midwest Piping doctrine primarily was designed to preserve employees' free choice when confronted with competing unions. It would be unfair to permit an employer to rely on that doctrine as an excuse for withholding the benefits of the Act from employees who had no knowledge until short- ly before December 20 that a rival union's petition was pending. I also find merit in the General Counsel's argument that the Respondent's duty to bargain resumed once the strike was over. The Board has long held that an em- ployer's bargaining obligation is suspended only so long as unprotected conduct continues. See Carroll Contract- ing & Ready Mix, 247 NLRB 890, 891 (1980), reversed on other grounds 636 F.2d 11 (5th Cir. 1981); Crimptex, Inc., 211 NLRB 855 (1974), enfd. 517 F.2d 501 (1st Cir 1975). As the union strike here was terminated on De- cember 20, the Respondent's refusal to arbitrate griev- ances arising after that date was a unilateral abandon- ment of the arbitration procedures set forth in the 1976 agreement in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The following employees of Respondent constitute an appropriate unit for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act: All' production and maintenance employees exclud- ing office and clerical employees, supervisors, out- side truck drivers, watchmen and guards, and em- ployees belonging to other unions that have collec- tive bargaining contracts with the Respondent. 4. At all relevant times, the Union has been the exclu- sive representative of this unit within the meaning of Section 9(a) of the Act. 5. Respondent has violated Section 8(a)(5) and (1) of the Act by altering the terms and conditions of employ- ment of employees in the above-described unit by aban- doning the arbitration provisions in the 1976 collective- bargaining agreement without first bargaining with the Union. In particular, the Respondent refused to submit to arbitration grievances concerning the recall of employees from a strike that terminated on, December 20, 1979, and the granting of holiday pay for certain employees. 6. The foregoing unfair labor practices affect com- merce within the meaning of the Act. THE REMEDY Having found that Respondent has violated the Act in certain respects, I shall recommend that Respondent be required to cease and desist therefrom and from like or related conduct. Affirmatively, on request, the Respond- ent will be required to submit the grievances in question to arbitration in accordance with the provisions of article XV of the 1976 collective-bargaining agreement. In addi- tion, Respondents will be required to post copies of the notice appended to this decision. [Recommended Order omitted from publication.]