W. L. Mead, Inc.

1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD W. L. Mead, Inc. and Local No. 25, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, AFL. Case No. 1-CA-1778. August 25, 1955 DECISION AND ORDER On January 25, 1955, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter the Respondent, the General Counsel, and the Charging Union filed exceptions and sup- porting briefs. At the request of the Respondent, the Board heard oral argument at Washington, D. C., on May 10, 1955, in which all parties participated. - 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 Inter- mediate Report, the exceptions. and briefs, and the entire record in the case, and finds merit in the Respondent's exceptions. Accordingly, the Board adopts the findings of the Trial Examiner only to the extent that they are consistent with this Decision and Order.' We do not agree with the Trial Examiner's finding that the Re- spondent discharged and thereafter refused to reinstate certain em- ployees in violation of Section 8 (a) (3) and (1) of the Act. The complaint alleges that on or about September 11, 1954, the Respondent discriminatorily discharged and thereafter refused to re- instate 20 of its employees because of their participation in a strike called by the Union. In defense, the Respondent asserts that the strike was in breach of the grievance and arbitration provisions of its valid collective-bargaining agreement with the Union and that, therefore, the Respondent was justified in regarding the employment of the strikers as terminated. The Trial Examiner, relying on the absence of a specific no-strike clause in the collective-bargaining agreement of the parties, found that the strike was protected concerted activity under Section 7 of the Act, and that, accordingly, the termination of employment of the strikers and the subsequent refusal to reinstate them was violative of Section 8 (a) (3) and (1) of the Act. At the time material herein, the Respondent and the Union were parties to a collective-bargaining agreement which, in its article VIII, contained the following provision : In view of our disposition of the case , we deny the motion of the Respondent to stay the proceedings and the General Counsel's and the Union's request that the case be re- manded for the taking of additional testimony. 113 NLRB No. 109. W. L. MEAD, INC. 1041 Should any dispute, grievance or complaint arise during the life of this agreement which the Business Representative fails to ad- just, the dispute, grievance or complaint shall be referred to the Arbitration Panel which Panel shall be the exclusive means of adjudicating all matters. On the morning of Friday, September 10, 1954, a controversy arose between the Respondent and the Union as to the working hours and the work assignment of-truckdriver Smith. The Respondent's man- ager, Gould, and the Union's business agent, McCarthy, became em- broiled in a heated argument. As, under these circumstances, an immediate adjustment of the Smith matter was clearly out of the -question, Gould proposed to McCarthy that the controversy be sub- mitted to the arbitration panel. McCarthy declined to go to the panel. Using intemperate language, he made it clear that he was going to handle the matter himself and forthwith translated his words into action by calling the employees out on strike. About 9: 30 a. in. on September 10, 1954, the employees walked off the job and•established a picket line. The following day the Respondent mailed to the strik- ing employees checks for the money they had earned up to that date, and, in addition, checks marked "Termination pay" for accrued leave. Subsequently, the Union offered to return the strikers to-work, but .efforts to settle the strike failed because the Respondent was willing -to take back only a "substantial number" of the strikers. At the time of the hearing the strike was still in progress. The record shows clearly, and it is not disputed, that the Smith matter was a dispute encompassed by the provisions of the arbitration -clause in the contract then binding upon the parties. The General Counsel contends, however, that McCarthy's refusal to submit the .Smith matter to arbitration was motivated by an alleged breakdown in the arbitration machinery provided for in the parties' collective- bargaining agreement, and the strike was therefore a justified act of self-help in the absence of such machinery. We find this contention without merit. The record shows that, in connection with a matter involving another employer, the arbitration panel had recessed on 'September 9, 1954, because of a controversy between the Union and, the employer-members- of the panel, not including the Respondent, with respect to the participation of certain employer panel-members who, in the opinion of the Union, were unacceptable for dealing with that specific matter. It also appears that the panel did not resume its,sessions until sometime in October 1954. However, by no stretch of the imagination can it be assumed that McCarthy, as early as September 10, 1954, could have foreseen the future difficulties in re- convening the panel, or that the panel would not be able to dispose of the Smith dispute in accordance with the provisions of the collective- 1042 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD bargaining -agreement. We are persuaded that the argument of the General Counsel with respect to the unavailability of the arbitration panel is founded on hindsight. Accordingly, we find that, without justification, McCarthy deliberately chose immediate strike action as the means to win the Union's grievance concerning Smith. The issue before us thus becomes whether, in the circumstances of this case, the Union's summary resort to strike action in disregard of, its obligation under the contract to proceed through a grievance to a final binding arbitration award, constituted legal ground for the dis- charge of the striking employees. The Trial Examiner ruled in favor of the strikers; he believed that because the contract contained no explicit no-strike clause, the conduct of the Union and the employees, even if it breached the terms of the contract, was nevertheless pro- tected under the statute. We do not agree. It is now well established that Section 13 of the Act is not to be accorded a strictly literal meaning.' Not every strike is entitled to the protection of the Act.' Both the Board and the courts have re- fused this protection to participants in some strikes either because the- tactics employed in carrying on the strike were considered seriously objectionable,4 or because the strikes were for a purpose which brought them into conflict with other statutes or with the underlying policy of the Act., The language of the Act, its declaration of policy, and its legislative history make it very clear that the bargaining duty placed upon em- ployers and labor organizations has for its purpose the making of- collective-bargaining agreements which should be binding upon the 9 As the Supreme Court stated in International Union, U. A W., A. F. of L., Local 232 v. Wisconsin Employment Relations Board, 336 U S 245 , 258-259, Section 13 "does not purport to create, establish, or define the right to strike. On its face it is narrower in scope than § 7 . . all that this provision does is to declare a rule of interpretation for the- Act itself which would prevent any use of what originally was a novel piece of legislation to qualify or impede whatever right to strike exists under other laws. . . . The right to strike, because of its more serious impact upon the public interest, is more vulnerable to regulation than the right to organize and select representatives for lawful purposes of collective bargaining which this Court has characterized as a 'fundamental right' and which, as the Court has pointed out, was recognized as such in its decisions long before it was given protection by the National Labor Relations Act." 3 ". . . the Board has not been commissioned to effectuate the policies of the Labor Relations Act so single-mindedly that it may wholly ignore other and equally important Congressional objectives . Frequently the entire scope of Congressional purpose calls for careful accommodation of one statutory scheme to another , and it is not too much to demand of an administrative body that it undertake this accommodation without exces- sive emphasis upon its immediate task " Southern Steamship Co v. N. L. R. B., 316- U S 31, 47. * N. L. R B v. Fansteel Metallurgical Corp , 306 U. S 240 (sitdown strike) ; Interna tsonal Union, U. A. W., A. F. of L , Local 232 v. Wisconsin Employment Relations Board, 336 U. S. 245 , 255 (intermittent work stoppages ) ; N. L R. B v. Local Union No 1229 , Inter- national Brotheiholod of Electrical Workers, 346 U. S. 464 (attack on quality of employer's product) 6 Southern Steamship Co. v. N. L. R. B , 316 U. S. 31 ( strike in violation of mutiny statute ) , N. L. R B v. Sands Mfg Co , 306 U. S. 332 (strike in violation of contract) ; American News Company, Inc, 55 NLRB 1302 (strike which would compel employer to- violate wage stabilization laws and regulations ) ; Scullin Steel Company, 65 NLRB 1294, 1317 ( strike in violation of specific no-strike clause). W. L. MEAD, INC. 1043 parties and employees.' There can be no question but that in the case before us the grievance and arbitration clause in the collective- bargaining contract of the Respondent and the Union is a material provision of that agreement. It is equally clear that under its terms the parties were obligated to refer grievance disputes to the arbitra- tion panel and precluded from using any other means for their resolu- tion. Thus article 8 of the agreement provides that disputes, griev- ances, and complaints "shall" be referred to the arbitration panel, and that the panel shall be the "exclusive" means of adjudicating all mat- ters. This language of the contract is clear and unambiguous on its face and therefore the Trial Examiner correctly rejected parole evi- dence offered by the General Counsel intended to show a contrary meaning. Contrary to the Trial Examiner, therefore, we find that article 8 by its language excluded any other means but arbitration for the resolution of disputes, particularly unilateral action by any party. It is equally clear that the parties bound themselves by the contract to accept final decision of the arbitration panel, if a grievance ever reached that stage. In no way can it be said therefore that either the grievance procedure or the arbitration which was to follow were to any extent elective or advisory. Rather they constituted the parties' agreed-upon substitute for all other methods for resolving disputes subject to the grievance and arbitration procedure. Every encouragement should be, given to the making and enforce- ment of such clauses. But, if employees may effectively call upon the Board to protect them when they arbitrarily breach clear and binding arbitration clauses of this kind, and turn to the use of economic force for the settlement of grievances rather than to the contractual, quasi- judicial procedure, the effect will be to discourage the making of, and the adherence to, contractual arbitration procedures. To hold that a strike in furtherance of such a material breach of a clear and binding contractual arbitration clause is to be protected by this Board would be contrary to the labor policy embodied in the National Labor Rela- tions Act as interpreted by the courts of appeals 7 and the Supreme Court.' Accordingly, contrary to the Trial Examiner's conclusion, we find that the Respondent did not violate any proscription of the Act when it discharged the employees who struck in furtherance of their breach N. L. R. B. v. Sands Mfg. Co, 306 U. S 332, 342; N. L. R. B. v. American National Ittaurance Co., 343 U. S 395; Timken Roller Bearing Co. v. N. L. R. B , 161 F 2d 949, 953 (C. A. 6) ; N. L R. B. v. Furriers Joint Council of New York, 224 F. 2d 78 (C. A. 2). 1 Hazel-Atlas Glass Co. v. N. L. R B., 127 F. 2d 109, 117-118 (C. A. 4) ; N. L. R. B. v. Dorsey Trailers, Inc., 179 F. 2d 589 (C. A. 5) ; N. L. R. B. v. American Manufacturing Com- pany of Texas, 203 F. 2d 212 (C A 5) ; N. L. it. B. v. Sunset Minerals, Inc., 211 F. 2d 224 (C. A. 9) ; United Construction Workers, et al. v.,.Haislip Baking Co., 223 F. 2d 872 (C. A. 4). 8N. L. It. B. v. Sands Mfg. Co., 306 U. S. 332, 344. "The Act does not prohibit an effec- tive discharge for repudiation by the employee of his agreement any more than it pro- hibits such discharge for a tort committed against the employer." 1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD , of the contract's compulsory and exclusive grievance and arbitration .machinery. In reaching this conclusion, we have considered particu- larly the complete absence of any evidence of antiunion animus on the part of the Respondent. It is not claimed, nor could it be, that the action of the employees in quitting work to win the immediate re- instatement of employee, Smith was provoked, ' or even indirectly caused, by any unfair labor practice on the part of the Respondent.9' In view of the foregoing findings, we shall dismiss the complaint in its entirety. [The Board dismissed the complaint.] MEMBER MURDOCK took no part in the consideration of the above Decision and Order. 0 Cf Mastro Plastics Corp. at at ., 103 NLRB 511 , enfd. 214 F . 2d 462 (C A. 2), cert. granted 348 U. S. 910. INTERMEDIATE REPORT STATEMENT OF THE CASE A charge having been duly filed and served, a complaint and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board, and an answer having been filed by the above-named Re- spondent Company, a hearing involving allegations of unfair labor practices in violation of Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, was held in Boston, Massachusetts, on December 6, 8, and 9, 1954, before the duly designated Trial Examiner. In substance the complaint alleges and the answer , as amended during the hear- ing, denies that the- Respondent on September 11, 1954, discriminatorily, and to discourage activity on behalf of the Union, discharged 20 employees because they went on strike on September 10, and thereafter refused to reinstate said employees although they applied for reinstatement., It is further alleged and denied that by such discharges the Respondent interfered ' with, restrained, and coerced employees in the exercise of rights guaranteed by the Act:r At the hearing all parties were represented and were afforded full opportunity to be heard, to examine and cross -examine witnesses, to introduce evidence pertinent to the issues, to argue orally upon the record,- and to file briefs and proposed findings and conclusions . Counsel for the Respondent and General Counsel argued upon the record. Briefs have been received from the Respondent and the Charging Union. After the hearing General Counsel submitted to the Trial Examiner a motion to, correct the record in certain particulars and a statement that service of the motion had been made upon the other parties. In a letter forwarding his brief , counsel for the Union assented to the motion . No objections have been received from the Re- spondent. Said motion is granted, and the record is hereby corrected in accordance therewith: Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT W. L. Mead, Inc., is an Ohio corporation engaged in the transportation business. It maintains a terminal and place of business in Boston, Massachusetts , where the events here at issue occurred . The Respondent transports goods in interstate-com- 'merce from and through various States of the United States other than the Com- monwealth of Massachusetts and receives annually for such services an amount ex- ceeding $100,000 The Respondent concedes and it is found that it is engaged in, commerce within the meaning of the Act. W. L. MEAD, INC. 1045 H. THE LABOR ORGANIZATION INVOLVED _ Local No. 25, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, AFL, is a labor organization ,admitting to member- ship employees of the Respondent at its Boston terminal. III. THE UNFAIR LABOR PRACTICES A. Background and issues A relatively simple event, factually described by participants in testimony not seriously in disagreement by opposing parties, is so variously interpreted in terms of its legal effect as to appear intricate and abstruse. To focus at once upon the event itself. On the morning of September 10, 1954, Business Agent W. J. McCarthy of Local 25, with which the Respondent was then and is now under contract, and Bernard B. Gould, counsel for the Respondent and its district manager, engaged in a brief oral dispute at the terminal concerning management's shifting of one employee to another job. McCarthy demanded that the employee be put back on the job he had had before the transfer. Gould re- fused. McCarthy insisted. Gould would not yield and finally told the business agent to take the dispute before the Joint Committee. (The Joint Committee is an arbitration panel consisting of an equal number of union agents and representa- tives of Boston employers who are also parties to the same area contract, plus an impartial chairman. Authority for this panel is set up in the contract, and will be quoted hereinafter.) McCarthy, in effect and at the moment, declined Gould's proposal and called the employees off the job. A picket line was established. On the same or the following day Gould instructed a subordinate to calculate and make out checks for "termination" pay, as of September 10, for each of the strikers. The instructions were followed and the checks were sent. General Counsel urges, as his prime contention, that the Respondent violated the Act by discharging employees for exercising a right specifically guaranteed by it: Sec. 13.• Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to-strike, or to affect the limitations or qualifications on that right. B. The discharges Since the burden is upon General Counsel to sustain his complaint, appraisal of his position is first made. Because Gould, both as counsel and as top management representative of the Respondent, declined to concede that his admitted act of sending all strikers their "termination" pay was in.fact an act of discharge, as alleged, that question should be resolved at once. Just what Gould actually intended to do or thought he did by sending the em- ployees their checks is not explicitly revealed in his pleadings and testimony. In the answer, which he signed, Gould flatly denied the complaint's allegation that the 20 individuals involved were discharged. As a witness Gould testified in part, as follows, that: (1) As the men walked off the job he told them, "Punch out, boys"; (2) in subsequent conferences with the Union he stated that Respondent's position to be that "the employees had terminated their status by the voluntary quit on September 10th"; (3) "We acknowledge their separation" by sending each of them a check dated September 10, as provided for in a contract clause which read: "After the completion of one year employment, if he is separated from his employment for any reason, he shall receive one half day's pay for each month in which he worked and a minimum of ten days since the anniversary date of his em- ployment."; (4) "I think that they were separated and the temporary or permanent character of separation was left to anyone's judgment."; (5) the typewritten state- ment "termination" on checks sent to the employees denoted "separation pay, if you choose, or termination pay, whatever the thing might be as to distinguish it from wages"; (6) "I didn't make any separation," but "on September 10th they separated themselves from W. L. Mead, Inc."; (7) "the company's position with respect to those strikers had not been established on September 10th," but was established "sometime later, possibly on September 11th"; (8) he "would think yes" when asked if the Company had' a position on September 11, and that on that date "I would think that the position was that they had separated themselves from the employment" and that "therefore they were no longer employees of the com- pany"; (9) when asked if he "knew on September 10th that the union was on strike," he replied, "It became reasonably obvious to me when they walked off 1046 DECISIONS OF NATIONAL-,LABOR/ RELATIONS BOARD the job and started picketing";. (10) he sent the men their checks "not so much that they went on strike as the fact that they separated themselves from employment with the W. L. Mead, Inc."; and (11) That the men "manifested" their voluntary separation from the Company "by going out on strike," but "the manifestation was not the cause of their- getting their checks. It was the result of their manifestation and the conclusion.that was reached as a result of observations of their, manifestations that Article V of the contract required me to send out checks for the amount of the separation-pay due to them." Boiling all this down, in Vermont sugar-orchard fashion, brings a conglomerate crystallization of contradictions: The employees struck, quit, and were discharged, more or less simultaneously and each the result or "manifestation" of the others. An oblique approach to the problem-by way of Gould's testimony concerning reinstatement-defines only a degree more clearly his own interpretation of his act or purpose in sending "termination" checks. Such testimony, however, does indi- cate that when sending these checks he considered the individuals no longer to be employees, whether they quit or were fired. As a witness, he said that on September 14 he first offered to take some of them back but only as "new employees." He also said, in substance, that this offer has continued up to the time of the hearing, although at one point he admitted that on October 14 he told the Union he would not take back any of the 20. He also testified that on September 17 "I went out to a group of the former employees who were standing on the street" and told the union steward present that 3 days earlier "I offered to take back a substantial num- ber of you men . . . I mean it today, but if you don't report by 12 o'clock, the offer will be withdrawn." Despite Gould's avoidance of a direct admission that he actually discharged the strikers as of September 10, other witnesses called by the Respondent gave testimony which warrants no other conclusion. Thus George Hooper, the office manager who made out the termination checks upon Gould's orders, agreed that "termina- tion pay is customarily something given to an employee when he is separated from the company permanently," and said he could recall no instance, in his experience with the Company, when termination pay had been made in cases of voluntary quitting. And Edward F. O'Brien, one.of the alleged discriminatees called by At- torney Buckley, co-counsel for the Respondent, testified bluntly that Gould told the men as they started from the platform the morning of September 10, "Punch out. You'se is fired." After O'Brien testified, Gould was recalled to the stand, but did not specifically contradict the employee's testimony, although he did state that he said "nothing further" than "Punch out." Foreman Ledger, also recalled immediately after O'Brien-and for the obvious purpose of impeaching him-said that he did not hear Gould tell the men they were through, and flatly denied that Gould told them to punch out. Ledger's testimony as to this incident has dubious weight, since Gould insisted that he did tell the men to punch out. In summary, the Trial Examiner is convinced, and finds, from the preponderance of credible testimony and the probabilities inherent in the situation as described by Gould himself, that he told the employees as they left the job at McCarthy's be- hest that they were "fired," or "were through," and that as of that time and date, in fact and in effect, he discharged them. The Respondent does not claim that the action was-nor would the evidence support such a finding-a "tactical" dis- charge, in effort to persuade them to abandon the strike. Gould's testimony, as well as the amended answer, warrants the conclusion, which the Trial Examiner makes, that he discharged the men and thereafter refused to reinstate them because they struck, walking off the job upon McCarthy's call.i Now to the question as to whether the discharges were discriminatory and in viola- tion of the Act. General Counsel contends that the strike was protected by Section 13 of the Act. The Respondent makes no claim that the strike was of a nature removing it, because of any specific provision of the Act, from the protection of the cited section. The con- tract, in evidence, contains no specific no-strike clause, and no evidence was brought forward by any party to show that any agreement, other than the written contract, was in existence. It follows, plainly enough, that the strike could have been in viola- tion of no specific no-strike clause. Nor did the Respondent, in its pleadings or by way of Gould's testimony, urge specifically that it considered the Union had violated any sort of a no-strike clause, 1 Although the answer does not admit the discharge, it does admit refusal to reinstate, and claims that such failure to reinstate does not constitute an unfair labor practice be- cause "the . . . conduct of the employees in stopping their work . . . was in breach of their obligations . . . and was unlawful " W. L. MEAD, INC. 1047 real or tacit or implied. It contends only that, in leaving the job, the workers breached their obligations, as spelled out in article VIII of the contract, its applicable part reading: Should any dispute, grievance or complaint arise during the life of this agreement which the Business Representative fails to adjust, the dispute, grievance or com- plaint shall be referred to the Arbitration Panel which Panel shall be the ex- clusive means of adjudicating all matters. [Emphasis supplied.] The Respondent cites no other contractural obligation which it claims the Union or the employees breached, and the Trial Examiner recognizes no duty to search beyond the limits of the single issue raised by the Respondent. From this issue stem two queries: (1) Did the Union or the employees actually breach the contract by failing to submit the dispute of September 10 to the arbitration panel?, and (2) if the contract was thus breached was the act "unlawful," as the Respondent claims, to the extent that the strike, otherwise protected, thereby became an unprotected activity? In the interest of brevity, the Trial Examiner turns to the second query first-since in effect it is the most crucial in terms of the Act. Let it be assumed that the contract was breached on the morning of September 10 in that McCarthy failed, and by the act of calling the strike overtly refused, to submit the dispute to adjudication by the arbitration panel. Were the employees who followed McCarthy from the platform automatically deprived of specific rights guaranteed by the Act? In the field of management-labor relations it is common knowledge that there are other methods of gaining ends than by adjudication-ranging from personal appeals made to the boss' daughter to calling a general strike. Some methods, specifically by the Act, by decision of the United States Supreme Court, or by current Board policy, have been declared to be unlawful, such as secondary boycotts, sitdown strikes, and "partial" work stoppages. And, of course, an economic strike during the term of a contract containing a specific no-strike clause has been found to be an unprotected activity. But the Trial Examiner is not aware that the Board has ever found to be unpro- tected a strike occurring under the circumstances herein described, or that it has laid down any general principle from which such a finding would logically or reason- ably stem. On the contrary, as General Counsel pointed out in his able argument: The principles governing this matter are clear. They have been stated early and late. First and foremost, is the principle that the right to strike is one of the most basic and fundamental rights guaranteed by the Act Any assertion that a union has given up its right to strike must be examined in a setting in which that prin- ciple constitutes the most conspicuous and brilliant feature. It follows, therefore, that that right is not to be taken away casually. Any language which purports to do it must be precise. It must be clear. It must be unambiguous ... He cites, among other cases, Consolidated Frame Company, 91 NLRB at 1295, where the Board said: Self-denial of the right to strike guaranteed by the Act cannot be lightly pre- sumed. Moreover, it is the very essence of a no-strike agreement that it sub- stitute, completely and unreservedly, collective bargaining in place of strike and lockout. In opposition to General Counsel's contentions, counsel for the Respondent in his brief cites, among other cases he considers controlling, N. L. R. B. v. Sands Mfg. Co., 3C6 U. S. 332, and specifically quotes the following dictum: The Act does not prohibit an effective discharge for repudiation by the em- ployee of his agreement, any more than it prohibits such discharge for a tort committed against the employer. The facts as reported in the same decision by the Supreme Court are not facts revealed in this case. There the employees involved refused to abide by certain seniority provisions specifically set out in a contract and threatened to strike if the employer insisted upon complying with such provisions; whereupon the employer shut down the plant and hired new employees, thereby "effectively discharging" the em- ployees who had violated the specific provision in an agreement Here, as above noted, there is no specific no-strike clause to be violated, and the one clause of the contract which, it has been assumed, was violated, refers only to pro- cedure for the "adjudication" of disputes. Nothing in that clause or in other parts 379288-56-vol. 113-67 1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the contract establish that the Union by agreement abandoned all other means of pursuing efforts to resolve the dispute about the employee's transfer. And the Board has said, long since the Sands decision, and as quoted above, that: "it is the very es- sence of a no-strike agreement that it substitute, completely and unreservedly, collec- tive bargaining in place of strike and lockout." In short, the Trial Examiner concludes and finds that the strike of September 10 violated no contractural provision prohibiting it, and that it was protected activity specifically guaranteed as a right by Section 13 of the Act. It follows, and the Trial Examiner finds, that by discharging the 20 employees for engaging in protected concerted activities, thereby discouraging membership in the Union, and thereafter refusing to reinstate them, the Respondent has discrimi- nated against them and has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act.2 C. Reinstatement Since it has been found that the employees involved were discriminatorily dis- charged as of September 10, it would be incumbent upon the Employer, absent unusual circumstances, to remedy its unfair labor practices by offering immediate and full reinstatement and by making them whole for any loss of pay since September 10, the day of the discrimination. There is an unusual circumstance here. Counsel Tor the Union argues in his brief that the strike of September 10 became an unfair labor practice strike as soon as the men were discharged. He also calls attention' to a fact amply supported by credible evidence that on October 14 he, on behalf of the Union, first offered unconditional return to work by the 20 individuals. The inference is reasonable that had the Respondent offered reinstatement before October 14, it would have been a futile gesture. And the Respondent admits that since that date it has refused such reinstatement. It will therefore be recommended that the employees involved be made whole from October 14, 1954, to the date of an appropriate offer of full reinstatement. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent set forth in section I, 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 Having found that the Respondent has engaged in unfair labor practices , the Trial Examiner will recommend that it cease and desist therefrom and take certain affirma- tive action to effectuate the policies of the Act. 2 In view of the conclusions set out above, the Trial Examiner considers it unnecessary to resolve the question as to whether or not the Union, on the morning of September 10, of thereafter, actually breached the contract by not immediately following Gould's de- mand that the dispute be submitted to the arbitration panel. In this report it has been merely assumed, and not found, that it did breach the contract. In the event the Board considers this point material, the Trial Examiner respectfully draws attention to certain, uncontradicted evidence in the iecord that: (1) On September 9, the day before the dis- pute ai ose, employee members of the arbitration panel had walked out of the regularly scheduled meeting; (2) this panel did not in fact reconvene after September 9 for about 7 weeks, (3) the Respondent itself never submitted the dispute to the panel, (4) the- Union in fact did submit the dispute at the first panel meeting held after the day it 'arose, and (5) at the panel meeting held sometime in November 1954, when the dispute finally came up, Gould walked out and refused to present his case to it Also, in the event that this case conies befoee the Board, and lest its members be per- suaded to find that the Trial Examiner has ignored the opinion of Aldrich, D J., United States District Court, District of 'Massachusetts, in Civil Action No 54-797-A, dated , "December 2, 1954, wherein Judge Aldrich found the Union had breached its agreement, it is affirmatively recorded here that the Trial Examiner has carefully read and considered -that opinion, which is a part of the record, although he has not had access to the evidence upon which it was based. It is noted that the Board was not a party before Judge Aldrich, 'and the issues were'not the same as here. Nor does it appear to the Trial Examiner to be beyond reason that the Union should be held, by one forum and in one case, liable for damages for breach of contract, and the employer, in another farm and another case. lio' found accountable for its conduct in violating the Act. NORTH AMERICAN AVIATION, INC. 1049 Having found that the Respondent has discriminated in regard to the hire and tenure of employment of these 20 employees , the Trial Examiner will recommend that the Respondent offer them immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges , and make them whole from October 14, 1954, to the date of offer of reinstatement , for any loss of wages they may have suffered as a result of the discrimination against them , by payment to each of them of a sum of money equal to that which he would have earned as wages during said period , less net earnings, the back pay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. It will also be recommended that the Respondent preserve and, upon reasonable request , make all pertinent records available to the Board or its agents. In view of the nature of the unfair labor practices committed , the commission by the Respondent of similar and other unfair labor practices may be anticipated. The remedy should be coextensive with the threat. It will therefore be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. 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. Local No. 25, International Brotherhood of Teamsters , Chauffeurs, Warehouse- men and Helpers of America , AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of its em- ployees, thereby discouraging membership in the above-named labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] North American Aviation, Inc. and District Council of Painters No. 36, Brotherhood of Painters, Decorators and Paperhang- ers of America, AFL; Woodworkers Local 530, United Brother- hood of Carpenters & Joiners of America, AFL; Steel, Paper House, Chemical Drivers & Helpers Local 578, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL; International Union of Operating Engineers, Local No. 501, AFL, Petitioners. Cases Nos. 91-RC- 3770, 21-RC-3771, 01-RC-3774, and 221-RC-3790. August 25,1955 DECISION, ORDER, AND DIRECTION OF ELECTIONS Upon separate petitions filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held in the above cases before Leo Fischer, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' 1 The Employer 's and the Intervenor's motions to dismiss the instant petitions for the reason that the unit or units requested are inappropriate are granted or denied in accord- ance with the findings set forth hereinafter under paragraph numbered 4. 113 NLRB No. 107.