Wagoner Transportation Co.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 452 (N.L.R.B. 1969)

452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wagoner Transportation Company and Earl Puckett.
Case 7-CA-6591
June 30, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On November 8, 1968, Trial Examiner Maurice
S. Bush issued his Decision in the above-entitled
case, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision . Thereafter, the Respondent filed
exceptions and the General Counsel filed limited
cross-exceptions to the Decision and briefs in
support thereof. The General Counsel also filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with this case to
a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions,
cross-exceptions and briefs, and the entire record in
this case,' and hereby adopts the findings,
conclusions , and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Wagoner
Transportation Company, Muskegon, Michigan, its
officers , agents, successors, and assigns , shall take
the action set forth in the Trial Examiner's
Recommended Order, as so modified.'
'As the record herein , including the exceptions and briefs, adequately
present the positions of the parties, the Respondent 's request for oral
argument is hereby denied.
'Add as the second indented paragraph of the Appendix the following
WE WILL. notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement
upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended, after
discharge from the Armed Forces.
TRIAL EXAMINER'S DECISION
MAURICE S. BUSH, Trial Examiner: The truck drivers
of Respondent Company, a motor carrier, engaged in an
unauthorized strike of less than 24-hour duration in the
month of January 1968, contrary to the terms of their
collective -bargaining agreement with Respondent.
Respondent discharged driver Earl M. Puckett for
allegedly "encouraging a refusal of Wagoner
Transportation Company employees to report to work"
after the wildcat strike had started in violation of the
terms of the collective-bargaining agreement and of his
duties thereunder as job steward. Respondent similarly
discharged driver Robert L. Burns for both instigating the
unauthorized strike and encouraging a refusal of Wagoner
employees to report to work after the strike had started.
These discharges were upheld by a duly constituted
employer-employee committee under the grievance
procedures of the collective -bargaining agreement.
The principal issue is whether Puckett and Burns were
discriminately discharged in violation of Section 8(a)(3) of
the National Labor Relations Act for their alleged union
activities in connection with the strike. As the right to
strike is a protected activity unless waived by a
collective-bargaining agreement , the principal issue in turn
involves the question of whether the statutory right to
engage in strikes of less than 24 hours ' duration has been
reserved to Respondent's employees under the terms of
the collective -bargaining agreement.
A further related issue is whether the awards of the
employer-employee committee upholding the discharges of
Puckett and Burns are binding upon the Board under the
rule established in Spielberg Manufacturing Company,
112 NLRB 1083.
The final issue is whether Respondent is in violation of
Section 8(a)(1) of the Act by reason of its threat some
hours before the unauthorized strike commenced that it
would fire any drivers who engaged in the work stoppage.
The complaint herein was issued on June 26, 1968,
pursuant to a joint charge filed by Earl Puckett and
Robert L. Burns (and others not here directly involved) on
February 15, 1968, and served the same day on
Respondent.
The case was heard at Muskegon, Michigan, on July 31
and August 1, 1968. Briefs were filed by General Counsel
and Respondent on August 30, 1968. These have been
carefully reviewed and considered.
Upon the entire record and from his observation of the
witnesses , the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent Wagoner Transportation Company, a
corporation organized under the laws of the State of
Michigan , is a motor carrier engaged in the transportation
of liquid bulk petroleum products in interstate and
intrastate commerce from terminals in both Muskegon
and Napoleon , Michigan . The Muskegon terminal is the
only facility involved in this proceeding which also serves
as Respondent's principal office and place of business.
During the fiscal year ending September 1, 1967, a
representative period, Respondent performed services
valued in excess of $500 ,000 which were performed in the
furnishing of transportation services of commodities in
interstate commerce for various enterprises located in
states other than the State of Michigan . Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
177 NLRB No. 22
WAGONER TRANSPORTATION CO. 453
II. THE LABOR ORGANIZATION INVOLVED
Local No. 527, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of
America (Ind), hereinafter called the Union , is a labor
organization within the meaning of Section 2 (5) of the
Act.
Ill. BACKGROUND AND ALLEGED UNFAIR LABOR
PRACTICES
Respondent at all times here pertinent operated under
an industrywide negotiated collective-bargaining contract
entitled "Central States Area Tank Truck Agreement,"
hereinafter called the Master Agreement, which bears the
signature of Respondent as the Employer and the Central
Conference of Teamsters, Tank Truck Negotiating
Conference, and the Union as the representatives of
Respondent's employees. The term of the Agreement was
for the period November 15, 1964, through November 14,
1967, and its provisions make it applicable to a territory
consisting of 12 North Central States, including the State
of Michigan. The Master Agreement was modified in
certain respects, not here material, by an agreement
known as the "Michigan Rider" which was executed on or
about the same time as the Master Agreement. The two
agreements were further modified by a supplemental
agreement dated February 3, 1965, applicable only to
Respondent and Local No. 527. The principal intent of
the latter was to provide some variations from the hourly
rates of pay called for in the Michigan Rider as it applied
generally to the industry in the State of Michigan.
The Master Agreement under Article 43 provides for its
automatic renewal on a year-to-year basis after its stated
expiration date of November 14, 1967, "unless written
notice of desire to cancel or terminate the Agreement is
served by either party upon the other at least sixty (60)
days prior to the date of expiration." (Emphasis supplied.)
However, article 43 also provides machinery for the
negotiation of "changes and revisions" of the subsisting
Agreement's provisions where (a) both parties desire to
continue the agreement and (b) neither has served a
cancellation or termination notice on the other. Under the
express provisions of Article 43, negotiations for such
revisions of the existing Agreement may be initiated by
either party through the service upon the other of a simple
"notice at least sixty (60) days prior to November 14,
1967, . . . advising such party desires to revise or change
terms or conditions of such Agreement."'
Neither party to the Master Agreement exercised the
right to cancel or terminate the Agreement by the
required 60-day notice prior to its November 14, 1967,
expiration date. However, the Union and the Central
Conference of Teamsters served a timely joint notice on
Respondent under date of August 24, 1967 (G.C. Exh. 7)
'The full text of art. 43 of the Master Agreement (G.C. Exh. 2, at p. 20)
reads as follows:
This Agreement shall be in full force and effect from November 15,
1964 to and including November 14, 1967 and shall continue from year
to year thereafter unless written notice of desire to cancel or terminate
the Agreement is served by either party upon the other at least sixty (60)
days prior to date of expiration.
Where no such cancellation or termination notice is served and the
parties desire to continue said agreement but also desire to negotiate
changes or revisions in this Agreement , either party may serve upon the
other a notice at least sixty (60) days prior to November 14, 1967, or
November 14th of any subsequent contract year , advising that such
party desires to revise or change terms or conditions of such Agreement,
that they desired "to negotiate changes or revisions" in
the Master Agreement and the "riders and supplemental
contract pertaining thereto for the contract period
commencing November 15, 1967."2 (Emphasis supplied.)
The notice further stated that it was being forwarded to
Respondent "in compliance with Article 43" of the
Master Agreement.' In a further notice under date of
September 29, 1967, the Union notified Respondent that
the particular provisions of the Master Agreement for
which it desired to negotiate "changes or revisions" were
"the clauses relating to hours, wages and working
conditions."
Pursuant to the Union's request for such changes and
revisions, negotiation meetings were held by the
Employees and the Employers through their respective
representatives. Out of these meetings there evolved a new
proposed Master Agreement and a new proposed
Michigan Rider for submission to the various constituent
local unions for approval or disapproval by ballot. These
were preliminarily presented solely for informational
purposes and discussion to the membership of Local No.
527 at a mass meeting held on Saturday, January 13,
1968, at Muskegon.'
'It is noteworthy that the underscored portion of the modification notice
quoted above is expressive of the intent of the Central Conference of
Teamsters and the Union to allow the automatic renewal clause of the
Master Agreement to take effect upon the expiration of the original term
of the Agreement on November 14, 1967.
'General Counsel, relying on Delux Metal Furniture Company, 121
NLRB 995, contends that the Union' s modification notice "had the effect
of forestalling automatic renewal " of the Master Agreement. If this were
true , then the Company and the Union would not have been under a
collective-bargaining agreeement at the time the strike here in question
took place and thus Respondent 's discharge of Puckett and Bums for
encouraging the strike and Respondent 's threats of discharge to its drivers
if they engaged in a work stoppage , would be clearly violative of the Act.
The record, however, does not lend itself to this simplistic solution, but on
the contrary supports Respondent 's contention that the strike took place at
a time when the Master Agreement, which forbade unauthorized strikes,
was in full force and effect. From this premise , Respondent argues that it
had the right under the Master Agreement to fire Puckett and Bums for
encouraging an unauthorized strike and to make the threats in question
The Board decision in the Delux case , supra. on which General Counsel
relies , holds (at p. 1003) that, "When a contract contains separate
modification and automatic renewal clauses each of which provides for
notification at approximately the automatic renewal date . . , the notice
will be treated as one to forestall automatic renewal ." The Delux case,
however , expressly states an important and only "exception" to this
general rule in situations "where the contract specifically provides that if
notice pursuant to the modification provision is given , the contract will
nevertheless renew, and the notice is specifically made pursuant to such a
modification clause." (Emphasis supplied ) In the Examiner's opinion, art
43 of the Master Agreement falls squarely into this exception to the
general rule of the Delux decision. The above-quoted language of art 43 clearly
shows that a modification notice may be served only "where (a) no such
cancellation or termination notice is served and (b) the parties desires to
continue said Agreement but also desire to negotiate changes or revisions
in this Agreement . " (Letters (a) and (b) supplied )
As found above, neither party to the Master Agreement served upon the
other the required cancellation or termination notice Moreover, as
heretofore noted the joint modification notice sent by the Union and the
Central Conference of Teamsters under date of August 24, 1967,
specifically refers to their desire to negotiate changes and modifications for
the "contract period commencing November 15, 1967 " (Emphasis
supplied .) Thus the modification notice plainly and affirmatively stated the
Union 's intention to continue under the Master Agreement pursuant to the
Agreement's automatic renewal clause , beyond the Agreement's then
expiration date of November 14, 1967.
Under all of these facts of record , the conclusion is inescapable that the
Master Agreement in all of its clauses including its bar of unauthorized
strikes , was still in full force and effect when the brief wildcat strike of
Respondent's drivers took place in January of 1968.
'The membership of Local No. 527 consists of the Employees of a
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The following day, on Sunday morning, January 14, the
new Master Agreement and Michigan Rider were
presented to Respondent's employees for balloting at their
regularly scheduled union monthly meeting for that day.
The meeting was presided over by Robert Rosencrants,
the Union's full time Business Representative. Some 17 or
18 drivers, including job steward Puckett and driver
Burns, and 2 or 3 mechanics were in attendance at the
meeting out of the approximate 33 drivers and 10
mechanics employed by the Company at its Muskegon
terminal! Also in attendance at the meeting was Stephen
Schultz, a member and chairman of the Central
Conference of Teamsters Tank Truck Negotiating
Committee which had negotiated the new proposed
Master Agreement and Michigan Rider. Rosencrants,
Schultz, and Puckett recommended that the meeting ratify
the two agreements.
The only stumbling block at the meeting to the
ratification of the Master Agreement and Michigan Rider
was the Rider's retroactive pay provision. The drivers
believed the provision called for too little backpay to be
satisfactory. After a bitter discussion on the subject, the
drivers refused to vote on the matter of ratifying the new
proposed Master Agreement and Michigan Rider on the
technical ground that notice thereof had not been posted
for the prescribed 3-day period prior to the meeting
although the documents in draft form had not been
received in sufficient time to allow for such posting.
The retroactive pay clause in the proposed Michigan
Rider called for backpay of 15 cents for every hour
worked for the retroactive period November 15, 1967, to
January 13, 1968. The proposed Rider also had a much
desired clause giving the employees overtime pay after a
40-hour week to replace the overtime after a 48-hour week
they were then receiving, but this liberalized overtime was
not retroactive. Most of the drivers wanted a clause
making the new overtime provision retroactive to
November 15, 1967, in lieu of the Rider's proposal of
straight backpay of 15 cents per hour for all hours worked
during the retroactive period, as the former would give
them a substantially larger amount of backpay due to the
fact that Respondent 's drivers work a twelve hour shift.
As the meeting progressed, the mood of the drivers
became more angry over the retroactive pay offered by
the new Rider. A motion to strike was made. Although
there is no direct testimony on the purpose of the strike
motion, the record carries the inference that the purpose
of the motion to strike was to seek a more favorable
retroactive pay provision . Business representative
Rosencrants as chairman of the meeting spoke out
strongly against the motion and declined to accept it
because it called for an unauthorized strike.
Puckett , one of the alleged discriminatees, in his
capacity as job steward, vigorously joined Rosencrants in
opposing the motion. He told the drivers that the strike
motion was illegal and warned them that a strike could
lead to discharges for those who participated. He further
told the drivers that the only matters before them for
action were the proposed Master Agreement and
Michigan Rider and urged the drivers to vote on these
documents, whether it be for them or against them. The
number of Employers in the Muskegon area, including the Respondent
'The Board has certified a unit of employees in the employment of
Respondent as follows "All truck drivers and garage employees at the
Employer's terminal at Muskegon and Napoleon , Michigan, excluding
office clerical employees, dispatchers , administrative employees,
professional employees, guards and supervisiors as defined in the Act."
other alleged discriminatee , driver Burns, on the other
hand, by his own admission vehemently and
enthusiastically supported the strike motion which he had
seconded.
The spirit of the meeting, as reported by Burns, was
such that nothing could have deflected the drivers from
voting to strike. Upon the insistence of the drivers, the
motion which had been seconded by Burns was put to vote
about 10 a.m. by secret ballot and was carried. Puckett
did not vote because he deemed the motion to strike
illegal . Burns voted for the strike motion.
The meeting at which the strike vote was taken took
place at a time when no work was under schedule by
Respondent. By stipulation, it is established that
Respondent had not scheduled any work for drivers or
mechanics at its Muskegon terminal from 3:30 p.m.
Saturday, January 13, 1968, until midnight Sunday, or
more precisely until 12:01 a.m., Monday, January 15.`
The drivers did not begin their strike until about midnight
Sunday in order to have it coincide with Respondent's
resumption of operations at that time. Picketing
commenced at that time. Burns participated in the
picketing although he was scheduled to be on vacation
that week. As a result of the strike, there was a complete
stoppage of work. Puckett was not scheduled to work on
the day the strike started, but nevertheless went to the
terminal where he unsuccessfully tried to persuade the
men on the picket line to report to work.
After the vote to strike had been taken and before the
meeting adjourned, the drivers selected driver Burns, in
the temporary absence from the meeting room of Business
Representative Rosencrants and job steward Puckett, to
notify Respondent's secretary and attorney, Mr. John P.
Boeschenstein , of the strike vote. Burns at about 10:15
a.m. telephoned Boeschenstein that the drivers had voted
to strike that day at midnight.' Boeschenstein , surprised,
inquired incredulously, "A strike without discussion?"
Burns ' testimony shows that the objective of the strike
vote was to get Boeschenstein who has handled
Respondent's labor relations for the past 12 years, to
come and talk to the drivers about the retroactive pay
clause. The meeting adjourned in pandemonium without
the appearance of Boeschenstein shortly after Burns had
spoken to him.
Immediately after receiving the word about the strike
from Burns , Boeschenstein notified Respondent's virtually
sole shipper-customer, American Oil Company, about the
impending strike and advised that the strike would start
that night at midnight.
A second meeting of Respondent's employees was
called the next morning , Monday, January 15, at the
Union Hall while Respondent' s terminal was being
picketed. This meeting, unlike the strike meeting, was
attended by all of Respondent 's Muskegon terminal
employees . At or about the time the employees were
assembling at the Union hall, Puckett met with
`Respondent 's operations are devoted almost solely to one customer,
Amencan Oil Company which it has served since 1948 American Oil
utilizes Respondent 's transportation services Mondays through Fridays
with service on Saturdays as requested , and with emergency services only
on Sundays The shipper did not require any emergency services from the
Respondent on the Sunday in which Respondent 's drivers decided to strike
It is found that Respondent did not schedule any work for its drivers and
mechanics from 3 30 p .m Saturday , January 13 to midnight Sunday,
January 14 , 1968, because American Oil , as its chief customer, did not
require or request any transportation services in that period.
'Boeschenstein in his testimony stated that Burns had told him the strike
would start at midnight
WAGONER TRANSPORTATION CO.
Boeschenstein at Puckett's request at the terminal at
around 9 a.m. Puckett requested and urged Boeschenstein
to meet with Respondent's employees at the Union hall
"to help us straighten this thing away." By this he meant
the controversy over retroactive pay that led to the strike.
The credited testimony of Puckett shows that
Boeschenstein agreed to do this as soon as he had an
opportunity to have a discussion with the terminal's
Operations Manager, Olin Seymour.
After the employees had waited for Boeschenstein for
more than an hour and were becoming irritable and
impatient, Puckett telephoned Boeschenstein at the
terminal at about 10:45 a.m. that the men were waiting
for him to talk to them. Boeschenstein told Puckett he
would not meet with the employees until they went back
to work, using the phrase, "No work, no talk, until back
to work." Puckett reported the position of the drivers and
mechanics to be, "No contract, no work."" In the ensuing
telephone conversation, Boeschenstein, according to his
credited testimony, reminded Puckett of a number of
concessions the Company had made to its drivers and
accused Puckett and some of his friends of "keeping the
Company in a constant state of turmoil as well as the
majority of our employees . " Boeschenstein's
testimony shows that Puckett heatedly replied that "he
was not behind this action [strike], that he himself had
counseled these people not to take action, [and] that he
was doing everything he could to get these people back to
work " Boeschenstein's testimony also shows that
Puckett left the impression with him that he (Puckett) was
powerless to stop the strike.
Boeschenstein further testified that Puckett in the same
conversation, apparently in pleading with Boeschenstein to
speak to the assembled employees at Union Hall, told him
that, "we aren't far apart on negotiating something better
than the Michigan Rider negotiated by the International."
Puckett vigorously denied that he made this statement to
Boeschenstein, but his testimony under cross examination
by Boeschenstein (see pages 184-186 of the transcript)
supports an inference and the conclusion that he made the
statement. For this reason and also by reason of
demeanor factors, the Examiner credits the testimony of
Boeschenstein that Puckett made the remark in question
to him. The question of whether the remark can be
interpreted as one "encouraging a refusal of Wagoner
Transporation Company employees to report for work
after midnight January 14, 1968," the reason given by
Respondent for Puckett's discharge, will be determined in
the "Discussion and Conclusions" below.
Puckett's above related telephone call to Boeschenstein
was made in the presence of Business Representative
Rosencrants. When the assembled employees in the Union
hall were told that Boeschenstein refused to come to the
Hall to talk to them, they asked Rosencrants to telephone
Boeschenstein who when called again declined to speak to
the employees until they voted on the Michigan Rider
which up until that time they had declined to do, as
heretofore noted. When the results of Rosencrants'
unsuccessful talk with Boeschenstein were reported to the
employees they quickly voted by majority vote to accept
'This attributed and credited remark of Puckett is based on the
testimony of Boeschenstein . Puckett when asked under cross examination
by Boeschenstein if he did not make such a remark to him, replied that he
didn't remember This denial , if it can be characterized as such, is not
credited Driver Burns' testimony shows that the position of the drivers
was indeed "No contract , no work ." But it should be noted that the
portion of "No contract , no work" was not Puckett's personal position as
he was opposed to the work stoppage.
455
the Master Agreement and Michigan Rider and to return
to work.' Rosencrants reported this by telephone to
Boeschenstein at about noon that day (Monday) and in
reply to his request as to when the employees should
report to work, Boeschenstein told him he would have the
Company's Operation Manager Seymour get in touch
with him on this. Somewhere between 1 and 3 p.m.,
Seymour issued instructions that the mechanics were to
report to work at 10:30 p.m. that day and the drivers at
midnight that same day (Sunday). These were regular
reporting times for the mechanics who worked in three
shifts and for the drivers who worked a two-shift day. As
the employees had called off the strike at about noon time
(Monday, January 15), the reporting time given to them
by Seymour to report to work entailed a delay of 10 to 12
hours before they could resume working. Seymour's
reasons for the delay was the desire to avoid an
overlapping of the various shifts of mechanics and drivers
which would be entailed in calling employees to work at
times other than their regular starting times and the
necessity to warm up the trucks before they could be sent
out due to the severe cold winter weather that weekend.
Respondent's employees stopped their picketing
Monday noon (January 15) immediately after the meeting
in which they had voted to accept the Master Agreement
and Michigan Rider and to return to work. As the
employees had begun their work stoppage or strike at
12:01 a.m. Monday (or more loosely speaking at midnight
Sunday) and ended the strike at noon that same Monday,
they were engaged in work stoppage of approximately 12
but not exeeding 13 hours."
Some 7 hours before the strike started, Respondent's
Operation Manager Seymour on instructions from
Boeschenstein called employees Robert Leverence, John
Peoples, Robert Shavalier, and Archie Baird and told
them that "if any one doesn't show up for work Monday
who is scheduled to work Monday [the day the strike was
to start] and doesn't have a doctor's certificate he would
be fired."" Seymour testified that he made these threats
"due to the fact this was a wildcat strike."
In the morning of January 15 during the course of the
strike, Boeschenstein sent telegrams to the Local and to
the Michigan Tank Truck Committee inquiring into the
status of the work stoppage. In the midafternoon of the
same day after the strike had ended, Boeschenstein
received a telegraphic notification from the Local and the
Michigan Truck Committee that the strike had not been
authorized.
Puckett reported for work as scheduled': at 6 p.m.
Tuesday, January 16, and worked his usual 12-hour shift.
'Burns was in the minority voting "No."
"Although the vote to engage in a stoke was taken at about 10 a.m.
Sunday , January 14, 1968, it is evident that the strike or actual work
stoppage could not and did not start until 12.01 a.m Monday, January 15,
when the picketing began , due to the fact that the Company had not
scheduled any operations from 3.30 p.m. Saturday, January 13, until the
following Monday at 12 01 a .m Obviously a work stoppage cannot in any
reality start during a period in which an Employer has not scheduled any
work.
"A stipulation by counsel shows that Seymour used the phrase "would
fire" in his threat but Seymour subsequently testified that he used the word
"might fire ." This difference is immaterial because the essential issue with
respect to the threat is whether Respondent had a legal right to make such
a threat under its collective -bargaining agreement , to employees planning
to engage in a wildcat stoke. If Respondent did not have such right, either
version of the threat would constitute a violation of Sec. 8(a)(1) of the Act.
"Puckett had not been scheduled to work during the period encompassed
by the stake.
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Before the start of his next shift he was discharged by a
letter dated January 16. The letter gave the following
reasons for his discharge:
Encouraging a refusal of Wagoner Transportation
Company employees to report for work after midnight
January 14, 1968 with knowledge the refusal to report
for work was unauthorized by Teamsters Local 527 or
the International Union.
Burns was also discharged by letter dated January 16.
The reasons stated in the letter for his discharge are as
follows:
Instigating a refusal of Wagoner Transportation
Company employees to report for work midnight
January 14, 1968, and encouraging a refusal of
Wagoner employees to report for work after midnight
January 14, 1968, with the knowledge the refusal to
report for work was unauthorized by Teamsters Local
527 or the International Union.
At the time of their discharge Puckett had 12 1/2 years
of continuous service with Respondent as a driver and
Burns had worked as a driver for the Company for a total
of 18 years.
In addition 3 other employees, mechanics Robert
Shavalier and Richard Peoples, and driver L. Geistel were
discharged by Respondent at or about the same time for
their connection with the strike. Shavalier's discharge
letter dated January 16, 1968, states that he was being
discharged for:
Instigating a refusal of Wagoner Transportation
Company employees to report for work midnight
January 14, 1968, with the knowledge the refusal to
report for work was unauthorized by Teamsters Local
527 or the International Union.
Although the contents of Peoples' and Geistel's discharge
letters are not of record, from the record as a whole it is
found that they were discharged for the same reason as
stated in Shavalier's discharge letter.
Respondent grounds the discharge of Burns on the
provisions of the Master Agreement outlawing
unauthorized strikes and giving an Employer the right to
discharge employees engaging in such unauthorized
strikes. Respondent bases the discharge of Puckett on the
same gound but also contends that he was discharged for
violating his duties as job steward under the Master
Agreement.
Briefly stated, the Master Agreement, under article 8,
section 8.1, entitled "Grievance Machinery and Union
Liability," states "that there shall be no strike . . .
without first using all possible means of a settlement, as
provided for in this Agreement, of any controversy which
might arise." Section 8.1 then sets forth in detail the
appeal procedure for dealing with grievances. This appeal
procedure was not invoked by any of the employees
dissatisfied with the retroactive pay provisions of the new
proposed Michigan Rider prior to the strike.
Section 8.2 of article 8 of the Agreement gives the
Employer certain rights of discipline in the event of an
unauthorized strike. In the first 24 hour period of an
unauthorized strike, the Respondent is given "the sole and
complete right of reasonable discipline short of discharge .
(Emphasis supplied.) After the expiration of the first
24 hours of an unauthorized strike the Respondent under
the Master Agreement has "the sole and complete right to
immediately discharge" any employee participating in the
unauthorized strike. Another sentence of section 8.2
imposes the duty on the Tank Truck Committee upon the
request of an employer to "declare and advise the party
making such request by telegram whether the Committee
has authorized any strike or stoppage of work." It was
under this provision that the Michigan Tank Committee
sent its heretofore mentioned telegram to Boeschenstein in
the afternoon of January 15 advising that the work
stoppage of Respondent's employees was not authorized.
Counsel for General Counsel at the trial of this
proceeding expressly refrained from claiming that the
strike here under consideration was an authorized strike.
There is no genuine issue in the case as to whether the
strike was in fact unauthorized as claimed by Respondent
and admitted by both the Local and the Michigan Tank
Truck Conference. The record compels the conclusion and
the Examiner finds that the strike was unauthorized.
The duties of job stewards, as ,applicable to Puckett, are
set forth in article 3 of the Agreement under the title of
"Stewards." These are stated in both positive and negative
terms. The positive duties imposed on the job steward are
to present grievances to the Employer, to collect dues, and
to transmit messages from the Local Union. Of these
three duties, the only one here relevant is the duty to
present grievances. In negative terms, article 3 states that,
"Job stewards and alternatives have no authority to take
strike action, or any other action interrupting the
Employer's business, except as authorized by the official
action of the Union." The particular phrase in this
sentence upon which Respondent relies is that prohibiting
a job steward from taking "any other action interrupting
the Employer's business." Respondent contends that an
alleged effort by Puckett to negotiate a settlement while
the unauthorized strike was in progress violated the
prohibition against taking "other action interrupting the
Employer' s business ." The final sentence of article 3 reads
in part that, "The Employer ... shall have the authority
to impose proper discipline, including discharge, in the
event the shop steward has taken unauthorized strike
action, slow down, or work stoppage in violation of this
Agreement."
A day or two after their discharges, Puckett and Burns
and the other three employees who were discharged for
their alleged part in encouraging the unauthorized strike,
filed appropriate grievances challenging their discharges
under the grievance procedure provided by the
aforementioned article 8 of the Master Agreement. The
grievances came on for hearing on February 7, 1968, at
Detroit before the Michigan Tank Carriers Joint State
Committee consisting of a panel of three union
representatives and three employer representatives. The
minutes of the Committee show that each of the
dischargees appeared before the Committee and denied
involvement in the unauthorized stoppage. Boeschenstein
appeared before the Committee in behalf of the
Respondent. His chief contention was that the strike was
unauthorized, that it lasted more than 24 hours, that the
five dischargees "had joined in the unauthorized work
stoppage for a period in excess of 24 hours, thereby
subjecting themselves to discharge" under the Master
Agreement which as above noted gives an Employer "the
sole and complete right to immediately discharge any
employee participating in any unauthorized strike" after
the first 24-hour period of such work stoppage. The
minutes show that the Michigan State Committee, being
deadlocked by a vote of three to three on the disposition
of the case of the five grievants, referred the grievances to
the Joint Area Committee for ultimate disposition under
the procedure set forth in the Master Agreement.
The appeal hearing of the five dischargees before the
Central States Tank Truck Committee, hereafter called
Area Committee, was held at Chicago on March 21, 1968.
WAGONER TRANSPORTATION CO. 457
This committee was composed of a panel of four union
representatives and four employer representatives , but the
individuals serving on the Area panel were entirely
different than the representatives who had served on the
deadlocked Michigan Tank Carriers Joint State
Committee panel of six at Detroit. The minutes of the
Area Committee shows that the only grievant to appear
before that Committee was Puckett. The testimony of
Puckett and Burns in the present proceeding shows that
none of the grievants other than Puckett appeared in
person before the appeals Area Committee in Chicago
because of financial inability to make the round trip from
Muskegon to Chicago. Rosencrants appeared before the
Area Committee in behalf of the Local and Boeschenstein
in behalf of Respondent . The minutes of the Area
Committee consists of about a page and a half, the
greatest portion of which is entitled "Facts" under which
there is a one page condensation of the several pages of
the minutes of the deadlocked Michigan State Committee.
The next portion of the minutes states the issue as follows:
"Should the discharges be substantiated?" The final
portion reads as follows:
After full and complete discussion and after hearing all
of the evidence presented in Case Nos. 150, 151, 152,
153 and 154 [ involving the grievants ] due consideration
was given, and the following decisions were rendered:
Case Nos. 150 & 152-The discharges of grievants
Burns and Puckett are sustained.
Case Nos. 151, 153 & 154-Grievants Shavalier,
Peoples and Geistel are to be reinstated with full
back pay, less earnings , if any, with full seniority and
the Company to pay all health and welfare and
pension contributions if not paid by another
employer.
Although the " Decision" of the Area Committee states
that the Decision was rendered "after hearing all of the
evidence presented ," the Examiner finds that the Decision
was made primarily on the basis of the minutes of the
deadlocked Michigan State Committee as four of the five
grievants made no appearance before the Area Committee
at Chicago because of Financial inability as heretofore
noted.
Pursuant to the decision of the Area Committee,
employees Shavalier , Peoples and Geistel were duly
reinstated by Respondent to their former positions with
appropriate backpay. Puckett and Burns as the Charging
Parties herein are seeking reinstatement under the Act.
The New Master Agreement (G.C. Exh. No. 5) was
executed on January 31, 1968, and the New Michigan
Rider (G.C. Exh. 6), on some unidentified date in April
1968. Each by its terms became effective retroactively as
of November 15, 1967, and each runs for a term expiring
on November 14, 1970. The pertinent provisions of the old
Master Agreement relating to "Stewards" and "Grievance
Machinery and Union Liability," as set forth or described
above, are carried over intact into the New Master
Agreement. It thus becomes immaterial whether the old
or new Master Agreement is used in determining the
issues in the case.
Discussion and Conclusions
Any discussion of this case must start with the question
of whether the brief strike here involved was a protected
activity notwithstanding the fact that the work stoppage
by common concession was wholly unauthorized under the
terms of the collective-bargaining agreement between the
Union and the Respondent as reflected in their Master
Agreement . However , although unauthorized strikes are
outlawed by the Master Agreement , it is clear from the
Agreement itself that the parties agreed that the extreme
penalty of discharge would not be applicable to employees
who participate in unauthorized strikes of less than 24
hours' duration , as the Agreement gives the Respondent
as an Employer only the right to impose "reasonable
discipline short of discharge" upon such employees. It is
accordingly held that to the extent that the Agreement
prohibited the Respondent from exacting the extreme
penalty of discharge on employee -participants in wildcat
strikes of less than 24 hours ' duration , such strikes are
protected activities under the provisions of Section 7 of
the Act which guarantees to employees the right to engage
in "concerted activities for the purpose of collective
bargaining or other mutual aid or protection ." It appears
obvious that this time -limited right was reserved to
employees by the Union in the Master Agreement by the
process of negotiation in recognition of the fact that
unauthorized strikes do occur and by the desire of the
Union to protect wildcat strikers from discharge until the
Union has had at least a 24 hour chance to persuade the
strikers to quit the strike and return to work. Once the
strike exceeds 24 hours , the Employer is given the
absolute right under the Agreement to discharge
immediately any employee-participants in such more than
24 hour strikes.
It was found above that the strike here under
consideration lasted only 13 hours at the maximum. The
fact that the strike lasted less than 24 hours can hardly be
a matter of serious controversy. The record is stipulated
that Respondent did not schedule any work for any of its
drivers and mechanics at its Muskegon terminal between
3:30 p . m. Saturday , January 13 and midnight Sunday,
January 14, 1968. In view of this it is evident that the
employees by their strike motion on Sunday morning,
January 14 , could not engage in any work stoppage until
midnight that same Sunday as no one was scheduled to
work until then . Boeschenstein, Respondent 's attorney and
labor relations manager , admits that he was notified by
driver Burns in behalf of the drivers that the strike would
start at midnight Sunday . Boeschenstein ' s testimony
further shows that immediately thereafter , he notified
Respondent's practically sole customer-shipper that
Respondent's employees would strike at midnight that
same Sunday . The record is further undisputed that the
picketing of Respondent's facility at Muskegon did not
begin until around midnight that Sunday . In view of these
undisputed facts , the Examiner finds Respondent's
contention that " for all `practical ' operation purposes, the
wildcat strike commenced Sunday , January 14, 1968,
approximately 10:50 a . m. when driver Burns notified
Boeschenstein of the strike action taken at the Union hall
that morning" and thus lasted for more than 24 hours,
untenable.
Respondent discharged driver Burns for his
participation in the unauthorized strike. Burns openly
admits that he was one of the instigators of the strike and
that he encouraged his fellow drivers to stay in strike
status after the strike had started. He voted for the
motion to strike and against the motion to end the strike
and to return to work . Nevertheless , since the
unauthorized strike lasted less than 24 hours and since the
Master Agreement in effect prohibits Respondent from
firing employees who participate in such strikes and in
effect reserves to employees the statutory right to engage
in such strikes without incurring the extreme penalty of
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge although subject to other lesser discipline, the
Examiner is of the opinion that Respondent's discharge of
Burns for his participation in the wildcat strike is in
violation of Section 8(a)(3) of the Act unless Respondent
has a separate defense to Burns ' discharge under the
doctrine of Spielberg case , supra, on the ground that his
discharge was upheld by the Area Committee of the
Union and Employer Representatives under the Master
Agreement's prescribed procedures. Consideration of the
application of the Spielberg doctrine to Burns is deferred
to a later portion of this Discussion.
The factual situation with respect to Puckett's
participation in the wildcat strike is quite different than
that of Burns . The record is clear that Puckett unlike
Burns was not an instigator of the strike. On the contrary,
the record shows that Puckett was unalterably opposed to
the strike and sought by every means available to him to
head the unauthorized strike off. He spoke against the
motion to strike at the Union meeting of Respondent's
employees and even warned his fellow employees that they
would be subject to discharge if they participated in the
wildcat strike. He refused to vote on the motion to strike
on the ground that the motion was illegal. While
Respondent appears to admit these facts, it nevertheless
persists in claiming it had the right to discharge Puckett
for a number of reasons under the provisions of article 8,
sections 8.1 and 8.2, and article 3 of the Master
Agreement. These provisions, as heretofore noted, outlaw
unauthorized strikes, give the Employer the right to
discharge employees who engage in wildcat strikes of
more than a 24-hour duration, and define the duties of job
stewards. Insofar as Respondent claims that it discharged
Puckett solely under the provisions of article 8 of the
Master Agreement as it did in the case of Burns, the
Examiner is of the opinion that Respondent's discharge of
Puckett is likewise in violation of Section 8(a)(3) not only
because the strike lasted less than 24 hours and that
Respondent has no right under the Master Agreement to
fire employees who participate in such brief but
unauthorized strikes, but also because the record shows
that Puckett in fact did not participate in the wildcat
strike as had been the case with Burns.
Respondent' s principal justification for the discharge of
Puckett derives out of Puckett's alleged duties as a job
steward under article 3 of the Master Agreement and
factually relates to remarks made by Puckett to
Boeschenstein in the course of a telephone call Puckett
made to Boeschenstein from Union hall on Monday
morning January 15 following the strike vote of the
previous Sunday morning. In that conversation Puckett
tried to persuade Boeschenstein to meet with the
assembled drivers at Union hall that same Monday
morning to discuss with them the issues that brought on
the wildcat strike. During the conversation, as heretofore
found, Puckett said to Boeschenstein, "We aren't far
apart on negotiating something better than the Michigan
Rider negotiated by the International ." Respondent
contends that this was an effort on the part of Puckett "to
negotiate" while the wildcat strike was in progress and
that such an attempt to negotiate constituted "action
prolonging the wildcat strike, interfering with and
interrupting a resumption of employer operations when
proposed by a union steward is forbidden by Article 3
thereby subijecting the Union steward to discharge by the
Employer." '
"Respondent seeks to bolster this argument "by analogy" to the part
Puckett was alleged to have played in settling an earlier wildcat strike by
In view of this justification for the termination of
Puckett, it is imperative to again note the contents of one
of the paragraphs of article 3 containing limitations on the
authority of job stewards. That paragraph states
negatively that a job steward shall "have no authority to
take strike action, or any other action interrupting the
Employer' s business , except as authorized by official
action of the Union." As Respondent does not claim that
Puckett had taken any strike action, the facts being quite
to the contrary, Respondent as justification for Puckett's
discharge relies only on that part of the quoted paragraph
which prohibits a job steward from taking "any other
[unauthorized] action interrupting the Employer's
business." In this connection, Respondent's contention,
restated somewhat more directly, is that Puckett in urging
Boeschenstein to meet with the striking drivers in an
endeavor to settle the retroactive pay issue was in effect
engaging in an "action interrupting the Employer's
business" by lending encouragement to the strikers to
continue the wildcat strike while there was hope of getting
something out of it. At the trial Boeschenstrin contended
that this effort by Puckett to get him to negotiate a
settlement of the wildcat strike lent itself to the
"possibility that an inference" (tr. 209-210) might be
drawn that Puckett was not in reality urging the drivers to
call off the wildcat strike, but was using the strike as a
mechanism to effect settlement. Such an inference is
untenable because the record firmly establishes the fact
that Puckett tried at all times to get the drivers to call off
their unauthorized strike. Moreover, the record shows that
the drivers not only paid no heed to Puckett's pleas to call
off the strike but also ignored the efforts of the Union and
the Central Conference of Teamsters to get the drivers
back to work.
Accordingly and from the record as a whole, it is
concluded that Puckett in seeking to get Boeschenstein to
talk to the assembled drivers on the matter of the
retroactive pay feature of the new Michigan Rider in an
effort to work out a solution of that problem did not in
any way constitute "action interrupting the Employer's
Respondent ' s mechanics (not the drivers as here involved) in December
1967 while that wildcat strike was still in progress As in the drivers'
wildcat strike here involved, Puckett similarly played no part in mstigitmg
the earlier mechanics ' strike which in fact was commenced by a strike vote
taken in his absence Once he heard about the strike action, Puckett did
everything in his power to end the mechanics ' strike and the next day
succeeded in getting the mechanics back to work under an understanding
Boeschenstein had with the employees' bargaining committee that
something would be worked out to settle the demands of the mechanics on
which negotiations had commenced prior to the strike, after they stopped
their strike and returned to work Shortly after the strike ended a
supplement to the old Michigan Rider was worked out to give the
mechanics an acceptable compromise on their economic demands . Puckett
as job steward worked with the employees' bargaining committee in
attaining the supplement to the Michigan Rider for Respondent's
mechanics The Examiner sees nothing in the conduct of Puckett in
connection with his efforts to bring the mechanics strike to an end by
participating in the settlement negotiations in contravention of his duties as
a job steward under the Master Agreement , but on the contrary his
conduct appears to have been in fulfillment of such duties It is noteworthy
that Boeschenstein played the larger and more significant role in settling
the mechanics ' strike than did Puckett who in his initial attempts to stop
the wildcat strike was told by the mechanics , "Tend to your own business,
we're not listening to you." Respondent is not now in the position to claim
improper conduct on the part of Puckett to an incident to which it was a
major party . The Examiner regards the incident here under discussion
largely irrelevant to the issues of whether Puckett's conduct in connection
with the drivers' wildcat strike was such as to give Respondent the right to
terminate his services under the "Job Steward" provisions of article 3 of
the Master Agreement
WAGONER TRANSPORTATION CO.
business" on the part of Puckett.
On the contrary , the Examiner finds that Puckett was
performing one of his positive duties under article 3 of the
Master Agreement in calling Boeschenstein ' s attention to
the drivers' dissatisfaction with the retroactive pay feature
of the then proposed new Michigan Rider due to the fact
that article 3 specifically imposes the duty on job stewards
of the "presentation of grievances to his Employer or the
designated company representative ." If this were not true,
an Employer would be deprived of official notice from a
duly designated plant representative of grievances which
have caused a strike.
The final sentence of article 3 of the Master Agreement
states that the Employer has "the authority to impose
proper discipline , including discharge , in the event the
shop steward has taken unauthorized strike action, slow
down , or work stoppage in violation of this Agreement."
As the record fails to show that Puckett has committed
any of these prohibited acts , it follows that he is not
subject for discharge under the quoted sentence of article
3.
The remaining four justifications by Respondent for
Puckett's discharge are without merit and require only
brief comment. In the first of these Respondent charges
Puckett with, "Failing to FIRST use any means provided
for in the Tank Truck Agreement [MASTER
AGREEMENT] to attempt to settle (negotiate) the
retroactive controversy as required by section 8 of the
Area Agreement [Master Agreement] BEFORE the
wildcat strike." (Capitalization, underscoring and
parenthesis as in Respondent's brief.) Briefly restated,
section 8.1 prohibits the initiation of strikes "without first
using all possible means of a settlement" under the
grievance procedures set forth in the Master Agreement.
Respondent appears to argue that Puckett should have
filed a grievance against the retroactive pay provision of
the proposed new Michigan Rider prior to the meeting of
drivers at which the strike motion was passed. This was
obviously impossible as it was not known, as far as the
present record shows, until the strike meeting took place
that there was dissatisfaction with the proposed retroactive
pay. It is conceded that the drivers had the right to reject
the new Michigan Rider and then seek something better
which would normally be reflected, if the efforts were
successful, in a supplement to the Rider, such as the
supplement (G.C. Exh. 4) to the old Master Contract here
involved. Furthermore, it is doubtful whether the seeking
of a supplement to a proposed contract would technically
require initiation by means of a formal grievance under
the Master Agreement.
The second justification advanced by Respondent for
the termination of Puckett was his failure as the Union's
job steward "to notify any Wagoner representative any
time Sunday, January 14, 1968 that unauthorized strike
action had been taken at the Union Hall and picketing
was to commence at midnight Sunday as required by
Section 8.2 of the area agreement [Master Agreement]."
While it appears that Puckett was perhaps remiss in not
giving Respondent notice of the strike action and
picketing on the Sunday in which the drivers voted to
strike, the Examiner fails to find any requirement in the
Master Agreement imposing such duties on a job steward.
The important fact is that Respondent did in fact receive
immediate notice of the strike motion and planned
picketing from driver Burns who in the temporary absence
of Puckett from the Union meeting hall was
commissioned by the assembled drivers to give such notice
to Respondent 's labor relations manager , Boeschenstein.
459
Although the record is silent on this , it may be presumed
that Puckett deemed it unnecessary to give Respondent a
second notice of the strike action taken on the same day
that Burns had already notified Boeschenstein of the strike
motion. It is significant that Puckett got in touch with
Boeschenstein at the opening of the very next day,
Monday, to work out some solution for getting the
wildcat strikers back to work.
Respondent's third justification for the termination of
Puckett is his alleged failure "to undertake every
reasonable means to induce the Wagoner employees to
return to their jobs after 11:40 Sunday when the first
picketing began as required by Section 8.2 of the Area
Agreement." Respondent has not detailed anywhere in its
brief just what Puckett could have done to induce the
Employees to return to their jobs; th e record shows that
he did everything in his power to prevent the work
stoppage; the record is also plain that the drivers simply
ignored Puckett's pleas that they refrain from the work
stoppage. Moreover, on the assumption arguendo, an
assumption that has no basis in fact, that Puckett did not
undertake every reasonable means to induce the drivers to
return to work after the strike began, there is nothing in
the Master Agreement that gives Respondent the right to
fire him for such failure.
Respondent's final justification for Puckett's discharge
is that he allegedly continued "to `participate' in a wildcat
strike after 24 hours as prohibited by Section 8.2 of the
Area Agreement." This argument is wholly untenable,
first, because the record fails to show any participation by
Puckett in the unauthorized strike and, secondly, because
the strike, as found above, lasted no more than 13 hours.
Article 8, section 8.2, it will be recalled, does not give the
Respondent the right to fire employee-participants in
unauthorized strikes of less than 24 hours' duration, but
gives the employer in such cases only the right to impose
"reasonable discipline short of discharge." (Emphasis
supplied.)
From the above analysis it is found that Respondent
had no factual basis for discharging Puckett under any of
the prohibitory provisions of article 3 of the Master
Agreement as he had not engaged in any of the acts
prohibited to him as a job steward under the article.
Puckett' s action in eliciting the cooperation of
Boeschenstein to meet with the striking drivers on the
issue of the retroactive pay issue was in line with his duty
to present grievances to management and obviously
constituted a protected activity under the guarantees of
Section 7 of the Act. There being no factual basis for
Puckett's discharge under the provisions of article 3 of the
Master Agreement, the Examiner finds that his discharge
was in violation of Section 8(a)(3) of the Act unless
Respondent is saved under the Spielberg doctrine from
such finding by the award of the Employee-Employer
Committee under the grievance provisions of the Master
Agreement upholding Puckett's discharge.
Briefly stated, the Spielberg case , supra, holds that the
Board in the exercise of its discretion will give recognition
to an arbitration award as a matter of policy for the
purpose of "encouraging the voluntary settlement of labor
disputes" where such an award "is not clearly repugnant
to the purposes and policies of the Act." The Board,
however, made it clear in the Spielberg case under a
savings clause that it is not bound, as a matter of law, by
an arbitration award and that it would not hesitate to
disregard an award where it "is at odds" with the
National Labor Relations Act.
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Spielberg doctrine appears to be applicable only to
awards made by an arbitrator or panel of arbitrators. The
awards here in question were made by an
Employee-Employer Committee under the grievance
provisions of the Master Agreement. Although the
Employee-Employer Committees called for under the
grievance procedure of the Master Agreement are not
designated or referred to as arbitration committee, the
Agreement leaves no doubt that such committees are
endowed with the power, with exceptions not here
applicable, to settle disputes with the Finality associated
with arbitration awards. ° This is evident from at least two
provisions in the Master Agreement. Article 8, section
8.1(b), provides that where a Joint State Committee is
"unable to agree or come to a decision on a case," as was
true in the present case, the case is appealable to a Joint
Area Committee. Article 7, section 7.4, of the Agreement
provides that, "It shall be the function of the various
committees above-referred-to [which includes the Joint
Area Committee] to settle disputes which cannot be
settled between the Employer and the Local Union ......
(Emphasis supplied.) Article 8, section 8.1(a), gives the
Joint Area Committee, in an analogous situation, the
"final decision in such disputes." At the opening of the
hearing, counsel for General Counsel, after referring to
the awards of the Joint Area Committee affirming the
discharge of Puckett and Burns, stated, "I am not
prepared to argue that this was not an arbitration." The
brief filed by General Counsel assumes that the awards
here involved were arbitration awards but argues for their
nonrecognition under the saving clauses of the Spielberg
case. The Union, it is evident, deems itself bound by the
awards under the Master Agreement as it is not the
Charging Party, the Charging Parties herein being the
Earl Puckett and Burns as individuals and dischargees.
The Examiner finds and concludes that the awards here in
question are essentially arbitration awards and entitled to
recognition as such in this procedure under the Spielberg
case.
The Examiner is of the opinion, however, that the
arbitration awards here involved must be disregarded
under the saving clauses of the Spielberg case because
they are repugnant to the basic rights guaranteed to
employees under Section 7 of the Act. One of these rights
is the right of employees "to engage in . concerted
activities for the purpose of collective bargaining. ."
The strike that Burns instigated and engaged in and for
which he was fired and the work stoppage that
Respondent, without foundation in fact, accuses Puckett
of encouraging after the strike was in progress and for
which he was fired, are the best known examples of
"concerted activities" guaranteed to employees by the
Act. The right to engage in such concerted activities can
only be waived by mutual consent of Employees and
Employers in a collective-bargaining agreement. In the
present case, as heretofore noted, the Union in its Master
Agreement with Respondent waives the right to engage in
a strike without first exhausting the procedures for the
settlement of grievances prescribed under the Agreement.
The pivotal sentence in the Agreement, however, is not
this waiver, but the limitation placed upon the Respondent
on the sanctions it may impose on wildcat strikers where
the duration of the unauthorized strike continues for no
"American Jurisprudence states that, "The object of arbitration is the
final disposition of differences between parties in a faster, less expensive,
more expeditious, and perhaps less formal manner than is available in
ordinary court proceedings." 5 Am Jr 2d, Sec 1, at page 519
more than 24 hours. In such unauthorized strikes of 24
hours or less, the Agreement expressly limits the discipline
the Respondent may impose to discipline "short of
discharge." The right to discharge is given to Respondent
only "After the first twenty-four (24) hour period of such
[work]stoppage. . ."Itis thus clear thattheMasterAgreement
reserved to Respondent's employees the immunity granted
by the Act against discharge for participation in work
stoppages where such participation, as in the present case,
lasts less than 24 hours.
Consideration will be given first to the arbitration
award upholding the discharge of Burns. Although the
award states no reason for sustaining Burns' discharge, it
is self-evident that the award was based on the erroneous
conclusion that the work stoppage in which Burns
participated lasted more than 24 hours because if the
work stoppage lasted 24 hours or less, no discharge was
permissible under Article 8 of the Master Agreement
under which Burns was discharged. Respondent by
stipulation admits that it scheduled no work for its drivers
and mechanics for the Sunday, January 14, 1968, in which
the strike vote was taken. The first schedule following the
Sunday layoff was at midnight that Sunday, or more
precisely 12:01 a.m. Monday, January 15. It was then that
pickets appeared and the actual work stoppage started.
The strike was called off at approximately 10:30 in the
morning of that same Monday morning, that is, within
about 11 hours after it had started. Respondent itself
recognizes that the work stoppage started at midnight that
Sunday because in its letter of discharge to Burns it told
him that he was being fired for "Instigating a refusal of
Wagoner Transportation Company employees to report
for work midnight January 14, 1968, and encouraging a
refusal of Wagoner employees to report for work after
midnight January 14, 1968. . . ." (Emphasis supplied.)
Similarly, Respondent informed Puckett in his
termination notice that he was being discharged for
"Encouraging a refusal of Wagoner Transportation
employees to report for work after midnight January 14,
1968. . (Emphasis supplied.) Under these
circumstances, the mere fact that the motion to strike had
taken place on Sunday morning, January 14 is wholly
immaterial as it could not be implemented until work was
scheduled to resume at midnight that day.
It follows that Burns' discharge was unlawful under the
Master Agreement and that the award upholding his
discharge must be disregarded as a matter of law as being
repugnant to both the Act and the Master Agreement.
For the same reasons it is found that Puckett's
discharge was unlawful insofar as Respondent seeks to
justify Puckett's termination under article 8 of the Master
Agreement.
Respondent also seeks to justify Puckett's discharge on
the ground of his alleged violation of his duties as a job
steward under article 8 of the Agreement, which states
that, ". . . the Union shall undertake every reasonable
means to induce such employees [wildcat strikers] to
return to their jobs during any such period of
unauthorized stoppage of work...."" Article 3, dealing
"As the above quoted portion of the Master Agreement is taken out of
its important context for purposes of readability, it is deemed desirable to
set forth here the full text of the sentence from which the quotation was
taken , to wit . "While the Union shall undertake every reasonable means to
induce such employees to return to their jobs during any such period of
unauthorized work mentioned above , it is specifically understood and
agreed that the Company during the first twenty-four(24) hour period of
such unauthorized work stoppage shall have the sole and complete right of
WAGONER TRANSPORTATION CO.
exclusively with the duties of job stewards, prohibits as
heretofore shown a steward from taking unauthorized
strike action or any other unauthorized action interrupting
the Employer' s business and authorizes discipline even to
the extent of discharge for a steward who "has taken
unauthorized strike action, slow down, or work stoppage
in violation of the Agreement." While article 8, as
heretofore shown, limits the right of discharge of wildcat
strikers to participants in strikes of a 24-hour duration or
longer, article 3 does not have any similar express
limitation on the discharge authority of an Employer for
stewards who engage in unauthorized strike actions.
However, since Respondent relies on the above-quoted
portion of article 8 in arguing its justification for
Puckett's discharge under article 3, the Examiner
concludes that the restriction of article 8 against discharge
of wildcat strikers who engage in strikes of 24 hours'
duration or less would similarly apply to job stewards who
violate their duties to refrain from strike actions under
article 3. Under this conclusion, insofar as the arbitration
award upholds Puckett's discharge under article 3, it
should be disregarded for the same reasons that the
arbitration awards for both Puckett and Burns were
found, above, not entitled to recognition under article 8 of
the Master Agreement.
As the above-conclusion was reached without taking
into consideration the question of whether or not Puckett
engaged in any of the unauthorized strike actions
prohibited to him as a job steward under article 3 of the
Master Agreement, it should be again noted, as heretofore
found, that Puckett did not in any way initiate or
participate in the unauthorized work stoppage. The record
is unchallenged that Puckett opposed and fought against
the wildcat strike motion and refused in any way to
participate in the work stoppage once it got under way.
The record further shows that Puckett in opposing the
strike motion even warned the drivers that their
participation in an unauthorized strike could result in their
discharges. In its discharge notice, the Company did not
accuse Puckett of instigating the strike as it did Burns.
Respondent's chief accusation" against Puckett is that he
took action "interrupting the Employer's business" by
telephoning Boeschenstein, Respondent's labor relations
manager, during the course of the strike, in an effort to
persuade him to meet with the assembled drivers on the
issue of the retroactive pay which had brought on the
wildcat strike. Respondent contends that this was an
unlawful effort to negotiate a settlement of the strike
while the unauthorized work stoppage was in progress. As
the lack of merit of this contention was fully dealt with
above, the matter needs no further discussion at this point.
The concern here is only with the issue of whether the
arbitration award upholding Puckett's discharge should be
disregarded under the Spielberg case, supra, as being
clearly repugnant to the purposes and policies of the Act.
The Examiner finds that the arbitration award
sustaining Puckett' s discharge must be disregarded not
only because the record is entirely lacking in proof that
Puckett "interrupted" Respondent's business by his efforts
to get Boeschenstein to talk to the strikers about the issue
which caused the strike, but also because the phrase
"interrupting the Employer' s business" must be defined in
reasonable discipline short of discharge , and such employees shall not be
entitled to or have any recourse to any other provision of this Agreement."
(Emphasis supplied.)
"Respondent 's only other complaint against Puckett is that he failed to
take reasonable means to induce the strikers to return to work.
461
the terms of the conduct for which an Employer is given
the authority to discharge a job steward. Under article 3
of the Master Agreement the Employer is given authority
to discharge a steward only "in the event the shop steward
has taken unauthorized strike action, slow down, or work
stoppage in violation of this Agreement." Thus the
interruption of an Employer's business even if such
interruption is an established fact is not a ground for
discharge of a shop steward under the Master Agreement
unlesss such interruption shows that the "shop steward has
taken unauthorized strike action, slow down, or work
stoppage." The record is clear that Puckett has not taken
any of these prohibited actions. It follows that insofar as
the arbitration award is based on the assumption that
Puckett interrupted Respondent's business by seeking
Boeschenstein 's cooperation in settling the unauthorized
strike during the course of the strike, the award upholding
Puckett's discharge must be disregarded because the
Master Agreement does not authorize the Employer to
discharge a job steward for that kind of action.
On the contrary as heretofore noted, Puckett's efforts
to get the Company and the strikers together for a talk on
the strike issue was in direct line with his positive duty
under article 3 to present grievances to the Company in
behalf of employees. Obviously a shop steward cannot
legally be discharged for performing a duty which is
imposed upon him by a collective-bargaining agreement.
It is also found that insofar as the arbitration award
upholding Puckett's discharge is based on the alternative
conclusion that Puckett did not in the language of article
8, section 8.2, of the Master Agreement, "undertake every
reasonable means to induce" the striking employees to
return to their jobs, the record shows that Puckett did
everything in his power to get them on back to work
although it is evident from the Agreement that the
responsibility for such action fell exclusively on the Union
through its business representative, and not the job
steward. This is clear from section 8.2 which states that
the "Union shall undertake every reasonable means to
induce such employees to return to their jobs during any
such period of unauthorzed stoppage of work ...." The
same section provides for the appointment by the Union
of "authorized representatives who shall deal with the
Employer, make commitments for the Union generally,
and in particular have sole authority to act for the Union
in calling or instituting strikes or any stoppages of work .
." Article 3 defining the duties of job stewards does not
give any of the above described duties to the job steward;
only the Union's business representative has such powers.
It is thus clear that the responsibility for undertaking
"every reasonable means to induce" wildcat strikers to
return to their jobs was that of the Union's business
representative, Rosencrants, and not that of Puckett's.
Nevertheless as heretofore indicated the record shows that
Puckett did everything in his power to get the striking
employees back to work. Respondent has no where spelled'
out what Puckett could have done to get the men back to
work that he didn't undertake.
For the reasons indicated, the arbitration award
sustaining Puckett's discharge insofar as it is based on
Puckett's alleged violation of his duties under article 3 of
the Master Agreement to refrain from participation in
unauthorized work stoppages is also wholly without
foundation in fact.
In summary it is found that Puckett was discriminately
discharged because of his union activities in violation of
Section 8(a)(3) of the Act and that the arbitration award
upholding his discharge requires that it be disregarded as
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
repugnant to and at odds with both the Master Agreement
and the Act.
The final issue in this proceeding is whether
Respondent is also in violation of Section 8(a)(1) of the
Act by reason of its threats to a number of its employees
some hours before the strike commenced that it would fire
any employees who engaged in the work stoppage. The
problem is not whether such threats were made because
Respondent has stipulated that they were. The problem is
whether Respondent had the right to make such threats
under the Master Agreement. If the Agreement had given
Respondent the unqualified right to fire immediately any
employee who engaged in an authorized strike, the
threats, in the Examiner's opinion, would have had
protected status as they would constitute merely an
expression of an intention to exercise an absolute right
given to the Employer under the collective -bargaining
agreement . But that was not the situation in the instant
case. The Master Agreement did not give the Employer
the right to discharge an employee who engaged in an
unauthorized strike of 24 hours or less; on the contrary, as
seen, the Agreement gave Respondent only the right of
reasonable discipline short of discharge for such
infractions of the Agreement, and the absolute right to
discharge only if the engagement was in a work stoppage
of 24 hours or more. Since strikes have protected status
under the Act and since Respondent under the Agreement
did not have the right to fire employees who engage in
wildcat strikes of 24 hours' duration or less, it follows.that
Respondent did not have the right to threaten discharge to
employees who engage in such brief strikes although
unauthorized. Accordingly it is found that Respondent is
in violation of Section 8(a)(1) of the Act by reason of the
threats of immediate discharge of employees who engaged
in the strike of the duration here under discussion.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, set forth in section
III, above, occurring in connection with the operation of
Respondent described in section 1, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent engaged in
certain unfair labor practices in violation of Section
8(a)(l) and (3) of the Act, it will be recommended that
Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
It having been found that Respondent discriminately
discharged Earl M . Puckett and Robert L. Burns in
violation of Section 8(a)(3) and ( 1) of the Act, it will be
recommended that Respondent offer them immediate and
full reinstatement to their former or substantially
equivalent position , without prejudice to their seniority or
other rights and privileges and to make them whole for
any loss of earnings they may have suffered by reason of
the discrimination against them , by payment to each of a
sum of money equal to the amount each would have
earned from the date of the discrimination against him
until such discrimination has been fully eradicated, less
the net earnings of each during the discriminatory period.
Backpay with interest at the rate of 6 percent per annum,
shall be computed in the manner set forth in F. W.
Woolworth, Company, 90 NLRB 289, and Isis Plumbing
& Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, the Trial Examiner
makes the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce and the Union
is a labor organization , all within the meaning of the Act
2. By interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(l) of the Act.
3. That Respondent discriminately discharged its
employees Earl M. Puckett and Robert L. Burns contrary
to the provisions of its collective-bargaining agreement.
4. That the arbitration awards of the Joint Area
Committee upholding the discharges of the said Earl M.
Puckett and Robert L. Burns are not entitled to
recognition and are to be disregarded because they are
repugnant to the purposes and policies of the National
Labor Relations Act and to the provisions of the
collective-bargaining agreement.
5. By discriminating in regard to the hire and tenure of
Earl M. Puckett and Robert L. Burns, the Respondent
has engaged in, and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
the Trial Examiner recommends that the Respondent,
Wagoner Transportation Company, its officers, agents,
and successors, and assigns , shall-
1. Cease and desist from:
(a) Imposing the penalty of discharge on employees for
participating in an unauthorized strike where due to the
brevity of the strike the collective-bargaining agreement
gives the Company only the authority to impose
reasonable discipline short of discharge.
(b) Threatening immediate discharge of employees who
engage in unauthorized work stoppage where the
collective-bargaining agreement grants them immunity
from discharge for the first 24 hours of participation in
such unauthorized activities.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer Earl M. Puckett and Robert L. Burns
immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to
their seniority or other rights and privileges previously
enjoyed and make them whole for any loss they may have
suffered by reason of the discrimination against them in
the manner set forth in the section of this Decision
entitled "The Remedy."
(b) Notify the above-named employees if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
WAGONER TRANSPORTATION CO. 463
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(d) Post at its Muskegon, Michigan, terminal copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 7, after being duly signed by the Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notice to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by
any other material.
(e) Notify said Regional Director, in writing , within 20
days from the receipt of this Decision, what steps
Respondent has taken to comply therewith."
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board ' s Order be enforced by a decree of the United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by a Board, this
provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps the
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL offer Earl M. Puckett and Robert L. Burns
reinstatement to their former or substantially equivalent
jobs, without prejudice to their seniority or other rights
and privileges, and WE WILL make them whole for any
loss of pay they have suffered as a result of their
discharge.
WE WILL NOT threaten immediate discharge of
employees who take part in wildcat strikes that last no
more than 24 hours because in such situations our
collective-bargaining contract with the Union gives the
Company only the right of reasonable discipline short
of discharge.
Dated By
WAGONER
TRANSPORTATION
COMPANY
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 500 Book
Building 1249 Washington Boulevard, Detroit, Michigan
48226, Telephone 313-226-3244.