Strick Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Strick Corporation and Gordon Maurer, John Horek, Walter Anderson, and Louis S. Trapane International Union, United Automobile, Aerospace and Agricultural Implement Workers of America and its Local 644 and Gordon Maurer, John Horek, Walter Anderson, and Louis S. Trapane. Cases 4- CA-8295-1, 4-CA-8295-2, 4-CA-8295-3, 4-CA- 8295-4, 4-CB-2950-1, 4-CB-2950-2, 4-CB-2950 3, and 4 CB-2950 4 March 19, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENEI.LO On November 16, 1978, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, the Charging Parties and the General Counsel filed exceptions and supporting briefs, Respondent Employer and Respondent Unions filed cross-exceptions and supporting briefs, the Charging Parties filed answering briefs to the cross-exceptions of Respondent Employer and Re- spondent Unions, Respondent Employer and Re- spondent Unions filed answering briefs to the excep- tions of the Charging Parties and the General Counsel, and the General Counsel filed an answering brief to the cross-exceptions of Respondent Employer and Respondent Unions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. While we agree with the Administrative Law Judge's ultimate finding that Respondent Unions did not violate their duty of fair representation, we regard as irrelevant the fact that the Unions might have lost the support of the then-working unit members if the Unions had failed to accede to the Employer's de- mand for a contract clause abrogating the arbitrator's award giving rise to this controversy. The only issue IThe Charging Parties have requested oral argument. This request is hereby denied as the record, the exceptions, and the briefs adequately pre- sent the issues and the positions of the parties. In agreeing with the Administrative Law Judge that the instant proceed- ing is not time-barred by Sec. 10(b) of the Act, we rely solely upon estab- lished Board precedent holding that notice, whether actual or constructive, must be clear and unequivocal, and that the burden of showing such notice is on the party raising the affirmative defense of Sec. 10(b). AMCAR Divi- sion, ACF Industries, Incorporated. 234 NLRB 1063 (1978). presented herein is whether the Unions acted arbi- trarily or in bad faith in acquiescing in the Employer's demand for the clause. Given the particular circum- stances herein, including the Employer's adamant de- mand for the clause, the Employer's avowed intention to "take a strike" if the Unions failed to agree to the clause, the desire of the working employees and their shop committee that the clause be included, and the probable ineffectiveness of a strike in opposition to the clause and the fact that resistance of the clause further would delay implementation of the new con- tract and its improved benefits thus resulting in detri- ment to working employees, we conclude that the Union was faced with a "Hobson's choice," and in making its decision did not act arbitrarily or in bad faith. The record reveals that the Unions at all times ac- tively pursued the rights of the discharged employees. Thus, the Unions promptly filed and processed the grievance giving rise to the arbitration award and provided an attorney to argue before the arbitrator on behalf of the dischargees. The Unions also paid the dischargees' expenses related to the State of Penn- sylvania's denial to them of unemployment compen- sation, and, on appeal of that denial, provided them with the services of its attorney. As the Supreme Court stated in Humphrey v. Moore, 375 U.S. 335, 349 (1964): [W]e are not ready to find a breach of the collec- tive bargaining agent's duty of fair representa- tion in taking a good faith position contrary to that of some individuals whom it represents nor in supporting the position of one group of em- ployees against that of an other .... "Inevitably differences arise in the manner and degree to which the terms of any negotiated agreement af- fect individual employees and classes of employ- ees. ... A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of purpose in the exercise of its discretion."2 On the basis of the foregoing, we find that, by ac- quiescing in the Employer's demand, the Unions "acted upon wholly relevant considerations, not upon capricious or arbitrary factors,"3 and accordingly have not breached their duty of fair representation. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- 2 Citing Ford Motor Company v. Huffman, 345 U.S. 330, 338 (1953). Humphrey v. Moore, supra at 340. 241 NLRB No. 27 210 STRICK CORPORATION ders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge: This con- solidated proceeding was heard in Wilkes-Barre, Pennsylva- nia, on May 15, 16, and 17, 1978, upon an unfair labor practice charge filed on October 29, 1976, and a consoli- dated complaint issued on December 30, 1977.' The afore- said consolidated complaint alleges that Respondent Unions violated Section 8(b)(1)(A) and Section 8(b)(2) of the Act by alleged restraint and coercion against partici- pants in an authorized strike by joining with Respondent Employer in a collective-bargaining agreement which abro- gated remedies acquired by said strikers through arbitra- tion. It is further alleged that Respondent Employer vio- lated Section 8(a)(3) and (1) of the Act by its conduct in this regard. In their duly filed answers, Respondent Unions and Respondent Employer denied that any unfair labor prac- tices were committed, and raised various affirmative de- fenses. Following close of the hearing, briefs were filed on behalf of the General Counsel, the Charging Parties, the Respondent Unions and the Respondent Employer.2 Upon the entire record in this proceeding, including con- sideration of the briefs filed on behalf of the parties, and after close observation of the witnesses and their demeanor while testifying, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent Employer is a Pennsylvania corporation en- gaged in the manufacture of trailers for use by motor carri- ers, with a facility located in Berwick, Pennsylvania, the sole plant involved in this proceeding. During the 12-month period preceding issuance of the complaint, Respondent Employer in the course and conduct of its operations shipped and sold products valued in excess of $50,000 di- rectly to points located outside the Commonwealth of Pennsylvania. The complaint alleges, Respondent Employer's answer admits, and I find that it is and has been at all times mate- rial herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1I. THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, the answers admit, and I find that Respondent International Union, United Automobile, Aerospace and Agricultural Implement Workers of Amer- ica, and its constituent, Respondent Local 644, are, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. I In accord with a request by the General Counsel, official notice is taken that the charges initiating this proceeding were initially dismissed and that the complaint which ultimately issued was pursuant to an appeal by the Charging Parties to the General Counsel in Washington, D.C. 2 Following expiration of the date for the submission of briefs, counsel for the Respondent Employer requested leave to file an answering brief. Said request is hereby denied; the document has not been considered. A. The Issues and Positions of the Parties This proceeding involves a challenge to certain terms in a collective-bargaining agreement executed by Respondents in 1976. Prior thereto, Respondent Employer had dis- charged about 200 employees by reason of their participa- tion in an unprotected strike. The discharges were grieved and an arbitration award resulted, authorizing preferential hiring and retroactive seniority for the strikers. Subse- quently, negotiations leading to the aforesaid bargaining agreement opened, with Respondent Employer insisting throughout upon a provision nullifying the arbitrator's rem- edy as a condition for any new contract. Late in the nego- tiations, the Respondent Unions assented to that proposal. The complaint herein challenges the agreement reached as an unlawful deprivation of rights acquired in arbitration by the discharged strikers. As for the positions of the parties, first with respect to Respondent Unions the allegations of 8(bXIl)(A) and 8(b)(2) violations are predicated upon an asserted breach of the duty of fair representation. See Vaca v. Sipes, 386 U.S. 171, 177 (1967); Miranda Fuel Company, Inc., 140 NLRB 181 (1962), enforcement denied 326 F.2d 172 (2d Cir. 1963). The General Counsel contends that the Unions' assent to abrogation of the arbitration award sacrificed the rights of the strikers for the benefit of actively employed replace- ments and that this was done arbitrarily to avoid a decerti- fication challenge to the Unions' representative status. It is asserted that Respondent Unions' acceptance of the Em- ployer's proposal, so motivated, violated the statutory guar- antee under Section 7 of the Act that employees be repre- sented by their exclusive agent without arbitrary, irrelevant, or invidious discrimination. In addition to the foregoing, the violations attributed to Respondent Unions are also predicated upon the General Counsel's claim that the duty of fair representation was also violated by the failure to notify the strikers of and their resulting exclusion from the ratification procedure which ultimately led to adoption of the new contract. See, e.g., General Truck Drivers, Ware- housemen, Helpers and Automotive Employees, Local 315, Teamsters (Rhodes & Jamieson, Ltd), 217 NLRB 616 (1975), enfd. 545 F.2d 1173 (9th Cir. 1976). The case against the Respondent Employer stands upon two alternative, but consistent, grounds. Thus, it is argued that Respondent's efforts to secure abrogation of the award violated Section 8(a)(3) and (1) of the Act in a conventional sense in that the Employer exhibited hostility toward cer- tain of the strikers and the Unions, and acting upon that animus, sought their elimination by its adamant insistence upon contract language denying all meaning to the arbitra- tor's remedy. Furthermore, it is claimed that, absent spe- cific evidence of unlawful motivation, Respondent Em- ployer nevertheless must be held to have violated Section 8(a)(1) and (3) of the Act on a derivative basis, stemming from Respondent Unions' alleged breach of the duty of fair representation. See, e.g., Barton Brands, Ltd. 213 NLRB 640, 641 (1974). By way of defense, Respondents, apart from their denials of any improper motivation or bad faith, raise a bevy of procedural grounds in urging that the complaint be dis- missed. First, it is argued that Section 10(c) of the Act and its limitation upon Board remedies in the case of any "indi- 211 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vidual ... suspended or discharged for cause" precludes the Board from ordering reinstatement or backpay to any par- ticipant in the unprotected strike. In the alternative, it is argued that the Board should withhold its jurisdiction and defer to a proceeding under Section 301 of the National Labor Relations Act initiated by the Charging Parties, which is presently pending in the United States District Court for the Middle District of Pennsylvania. In addition, they affirmatively assert that, pursuant to Section 10(b) of the Act, the unfair labor practices should be dismissed as untimely filed. Finally, it is argued that the failure of the Charging Parties to exhaust internal union remedies pre- cludes the Board from granting relief in this proceeding. B. Concluding Findings The facts Respondent Employer is a manufacturer of tandem and flatbed trailers. Its manufacturing activities are conducted at nine plants, including that located at Berwick, Pennsyl- vania, the sole facility involved here. At that location, Re- spondent Unions have historically represented the produc- tion and maintenance workers. Local 644 is an amalgamated local which represents em- ployees of a variety of distinct employers in an area of Pennsylvania. The officers of Local 644 were not employees of Strick. However, the president of that Local, Joseph Connors, serviced the Berwick unit with the aid of Interna- tional Representative Paul Clouser. Union business on a day-to-day basis at the plant level was conducted through shop stewards and an elected shop committee. In July 1974, Charging Party John Horek was chairman of the shop com- mittee, and Charging Party Walter Anderson was its vice chairman. The instant controversy finds its origin in events which arose during the term of a collective-bargaining agreement with a duration running from September 19, 1972, through September 19, 1975. 4 That agreement included a conven- tional grievance system, culminating in final and binding arbitration' and a no-strike clause.6 The contract also con- tained a clause whereby seniority would be terminated upon "discharge for cause."' Notwithstanding contractual provisions calculated to as- sure stability during the term thereof, there were four work stoppages in the Berwick unit in 1973 and 1974. The first involved a walkout of six employees in April 1973, appar- ently in protest of their having to work on Good Friday. The second occurred in January 1974 and involved a walk- At the hearing, viewing this defense as nonmeritorious, I excluded all evidence pertaining thereto and thereby precluded factual litigation of this issue. That view is reaffirmed. Cases cited by Respondent to the contrary are deemed inapposite for all involved private litigants seeking to enforce the duty of fair representation upon a labor organization in civil suits. The im- port of this distinction is evident from the Supreme Court's consistent rejec- tion of the exhaustion doctrine in procedures, where, as here, the moving parties seek vindication of public rights under a Congressionally sanctioned remedial scheme. See N.L R.B. v. Industrial Union of Marine & Shipbuilding Workers of America, AFL-CIO, 391 U.S. 418, 422-424 (1968); Scofield [Wis.- consin Motor Corp.] v. N.L.R.B., 394 U.S. 423, 430 (1968); McKinney v. Mlssouri-Kansas-Texas Railroad Co., 357 U.S., 265, 268-270 (1958). 4 G.C. Exh. 2. See G.C. Exh. 2, art. VI, p. 3. 'See G.C. Exh. 2, art. VI, p. 4. 7See G.C. Exh. 2, art. IX, sec. 9.08(b), p. 5. out by the entire shop. This strike was prompted by an injury to an employee and continued for a period of about 2 weeks. A few months later, in the early spring of 1974, 30 to 40 employees walked out in protest of the Company's hiring two welders-both related to a foreman-without requiring them to take the usual qualification test for such positions. The issues in this proceeding spring from events occur- ring in July 1974. On Wednesday, July 10, 1974, a union meeting was held. Twelve employees requested permission to leave work to attend this meeting, but the request was denied by their foreman. Nonetheless, the 12 employees, intent on electing a new shop steward at the union meeting, left the plant without permission and went to the meeting. Upon their return to work during the same shift, all 12 were discharged by their foreman, "Snake" Young. The dis- chargees immediately returned to the union meeting, in- forming the membership of their plight. On July II, members of the shop committee including Horek and Anderson met with the Employer's plant man- ager, Ray Choley, and its personnel manager, Michael Mc- Namara, concerning the discharges. During the course of their deliberations, Choley offered to reinstate the 12 dis- chargees, but refused to pay them for the time they lost on the previous day. When Horek and Anderson carried the Employer's proposal to the dischargees, it was rejected, the dischargees being of the view that they should have been paid. On Friday, July 12, the dischargees appeared at the en- trances to and apparently within the premises of the Ber- wick plant soliciting employees to support them by walking out. By noon most of the work force had obliged, though the union officials remained on the job. Apparently only a handful of night shift employees worked that day.' On Sunday, July 14, union members convened, and, ac- cording to the credited testimony of Clouser, the member- ship's demand for reinstatement of the 12 dischargees broadened. A list was prepared specifying 18 different grievances, including demands for more money and re- moval of the no-strike clause from the contract, and com- plaints about safety and inadequate manning.9 The mem- bership affirmed that they would not return to work unless the entirety of their demands was met.'0 On Monday, July 15, pickets appeared at the plant en- trances, and apparently all unit employees, with the excep- tion of probationary workers, who were not then union members, honored the picket lines. The work stoppage did not diminish in breadth signifi- cantly in the days that followed. On July 16, local union Clouser, the International Representative of the UAW, testified credibly that Horek telephoned him on Friday, July 12, reporting that the men were walking out, and that Clouser told him that the walkout was illegal, unlaw- ful, and in violation of the contract and that Horek should get the men back to work. Horek, in that phone conversation, was also told that it was his responsibility to work, and to keep all union unit officers on the job. ' See Resp. Un. Exh. 7(d). '0 To the extent that the testimony of Clouser is in conflict with that of Horek and Anderson, I credit Clouser. Horek and Anderson were thor- oughly untrustworthy witnesses. Their complete lack of recollection that a list was prepared and presented by them to management was viewed with considerable circumspection, particularly in view of the radiating effect of this fact upon their unbelievable testimony that they were unwilling partici- pants in the strike, joining the walkout only because they were coerced by other strikers. 212 STRICK CORPORATION officials and Clouser again met with company representa- tives. At that meeting, through W. James Walsh, Jr., Re- spondent's corporate level director of industrial relations, the Company expressed need for the continuing productiv- ity of the employees and urged them to return to work and to grieve the discharge of the 12 employees to arbitration. The union representatives said that they did not wish to arbitrate, but would stay out until the 12 men were reinstat- ed. At that time Horek, with Anderson's tacit support, pre- sented the list of demands prepared by the membership at the union meeting of the previous Sunday, and informed management that if they were not satisfied the strike would continue." With respect to the list, Walsh, in eventually cutting off Horek while the latter was itemizing the content of the list, indicated that Horek was raising matters which were the subject of collective bargaining or management rights and that he no longer wished to discuss them. The meeting apparently closed on that note. At a further meeting apparently held on July 23, Walsh informed the union representatives that the Company was considering discharging the strikers. Nonetheless, the dis- pute was not resolved. By individual telegrams, on July 24, 1974, participants in the strike, a group numbering over 200 employees, were discharged. Shortly thereafter, on July 27, 1974, a union membership meeting was held where a grievance was drafted protesting the discharges. The grievance was answered on August 23, 1974, with the Company stating that the strikers violated the contract and company rules by engaging in a wildcat strike and were terminated for good cause. Some time in August 1974, the Company did offer to restore the strikers, but as new employees without seniority. On November 1, 1974, an arbitration hearing was held on that grievance. The interest of the strikers was advanced on that occasion by Respondent Unions through their at- torney, Richard Markowitz. On November 27, 1974, the arbitrator issued an award which in material part stated as follows: The arbitrator does not doubt the employees who engaged in this strike, which the Union states was not authorized, were responding to a strong sense of griev- ance against the Company. While this explains their action it does not make it permissible, particularly un- der a labor agreement which states, unequivocally, that, during its term, union members are not permitted to take part in any strike, slow down or any other orga- nized or concerted interference with work. In return for giving up the right to strike to settle grievances, the agreement provides that should differ- ences arise between the Company and any employee, group of employees or the Union, the matter will be settled either in the grievance procedure or, if that fails, in arbitration according to the rules of the Ameri- can Arbitration Association. The employees and the Union were completely within their rights in rejecting the company's offer for settlement of grievance number 1078 which involved the discharge of the 12 employees who left work to attend the union meeting. The only proper way to have "i Based on the credited testimony of McNamara, Clouser. and Walsh. settled that matter was to take it through whatever steps of the grievance procedure remained, and, if it was still not settled, to impartial arbitration for a deci- sion which would be final and binding on both parties. The completely improper way to try to settle it was for the employees to have gone on strike. And they were so advised by their union. Under this circumstance the company was entirely within the rights to hire new employees to replace the strikers who had left their jobs improperly. It had just cause for the strikers' discharge. Yet it must be recognized that many of the strikers were, to some extent, influenced more by the strong emotions of the moment than by rational consider- ations, while others may have been prevented from re- turning to their jobs by the peer pressure of their co- workers. While their discharge and replacement was fully warranted, a penalty which denies them, forever. the right to return to employment with this Compan3 and to again enjoy the benefits of the seniority they acquired when previously employed by it, this appears to be more punitive than is necessary. Accordingly, the award provides them the right to be reemployed to fill vacancies as they' occur. To qualify for that right, each employee who has been discharged because of this un- authorized work stoppage, including those who had been rehired as new employees, are required to apply, before January 15, 1975 to be placed on a reemploy- ment roster .... . upon such reemployment. they shall have the seniority that they had when they were discharged. Subsequently, some 124 of the strikers on a timely basis signed the reemployment roster authorized by the award. Not one was ever recalled. In the interim, after the com- mencement of the strike, Strick had hired replacements. As of January 14, 1975, there were 130 actively employed pro- duction and maintenance workers in the Berwick unit. Yet only one employee was hired after issuance of the arbitra- tion award and his starting date was December 3, 1974. Director of Industrial Relations Walsh testified that he opposed the arbitrator's award on "moral, practical and past history grounds." He went on to amplify that he felt that the strikers had engaged in an illegal and unprotected strike, that they had not followed the dictates of their lead- ership in doing so, that some of them had engaged in three prior wildcat strikes, and that they were not the type of employees the Company wanted or who deserved to be re- turned to work. As for his practical reasons for opposing the award, Walsh explained that animosity would be engen- dered in the event that the wildcat strikers were returned to work side by side with the replacements. Walsh was soon to have the opportunity to act upon his reservations concerning the award. On September 19, 1975, the then subsisting contract was scheduled to expire. Con- tract renewal negotiations opened in July 1975. At the very first session Walsh included in his proposal a revision to existing clause 21.01, which provided: This agreement supercedes and cancels all previous agreements and/or abritration awards, both written 213 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and oral, and constitutes the entire agreement between the parties.' Parenthetically, it is noted at this point that the replace- ments hired in consequence of the strike were subject to the union-security provisions of the subsisting contract. Al- though they and other nonstrikers had become dues-paying members, Clouser credibly testified that he and Connors deliberately shunned this group and performed no real rep- resentative functions with respect to the newly constituted work force until January 1975. After receiving complaints from this group, including rumored decertification activity, union officials decided to set up a membership meeting to elect a new shop committee among the actively employed nonstrikers and replacements. This occurred in January 1975.13 A wealth of evidence, which need not be labored herein, was adduced at the hearing as to what transpired in the course of these negotiations. Consistent with the credited testimony of Walsh and Clouser, it should suffice to sum up the developments as follows: The Company introduced its proposed Clause 21.01 at the initial bargaining session. Clouser resisted any such modification from the outset. However, he was repeatedly informed by Walsh that pro- posal 21.01 was indispensable to a new contract, that it was very, very important to the Company, and that the Com- pany would take a strike before entering into an agreement without such a clause. Because of the foregoing, and since actively employed members of the unit and their shop com- mittee could be expected to agree to this language, Clouser immediately sought advice from attorney Markowitz. By letter dated July 22, 1975, Markowitz wrote Clouser, stating in material part as follows: I recognize the practical situation that you really cannot expect present employees to agree to perpet- uate the arbitration award because of its adverse effect upon them. I would, however, hold out until the last minute on this issue and then you might agree to a clause which would provide as follows: The seniority provisions of this agreement super- cede and cancel all prior agreements and/or arbitra- tion awards granting or denying seniority or reem- ployment rights to individuals. The right of individuals to recall shall be governed strictly by the seniority provisions of this agreement and by no other determination, arbitration award, etc. After about nine bargaining sessions, though the parties neared agreement, the status of proposal 21.01 remained 12 The Charging Parties point to an alleged conflict between Walsh's testi- mony in this respect and a deposition he afforded on December 22, 1976, in connection with a suit maintained by the Charging Parties under Sec. 301 in the Federal crts. See G.C. Exh. 2I p. 27. Although the possibility of unrest is the ony reason cited by Walsh in his testimony on that occasion, his responses were within the framework of inquiries, narrowed to an exami- nation of the reasons conveyed by the Company to the Union, as to why it demanded the sec 2 1.01 revision. The parole testimony afforded by Walsh in this proceeding struck me as reliable and afforded in a more complete fash- ion, with candor It is credited. 11 With the exception of employee Andrews, who was elected shop chair man in January. the shop committee at all times dunng the 1975 negotia- tions included Charles Stout and David Creasy. In the course of nglla- tions. Andrews was removed and Henry Marshall Jones replaced him on the shop committee. unresolved. Lacking support from among the actively em- ployed for continued resistance to Respondent Employer's 21.01 proposal, Clouser on behalf of Respondent Union ac- ceded and agreed to that provision on September 18, 1976. Clouser, who was the prime spokesman for the Union at the negotiating sessions, testified that he finally agreed to 21.01 because he had no choice; Respondent Employer insisted upon it in any agreement reached and the shop committee and membership wanted it. Clouser went on to explain, quite plausibly, that he could not conduct a strike without support of the actively employed membership, and that to resist 21.01 would result in no contract and ultimately would in all probability preclude Respondent Union from continuing to represent that bargaining unit. The Union's shop committee, and its principal negotia- tor, Clouser, having agreed to the Respondent Employer's proposal 21.01 at the last bargaining session on September 18, 1975, conducted a membership ratification meeting. The discharged strikers were neither notified of nor otherwise offered an opportunity to participate in the ratification vote. The settlement achieved in the negotiations was ex- ecuted by the parties on September 19, 1975. The revision to article 21.01 appeared, however, on a separate attach- ment.'4 and included the following language: The seniority provisions of this agreement supercede and cancel all prior agreements and/or arbitration awards granting or denying seniority or reemployment rights to individuals. The right of individuals to recall shall be governed strictly by the seniority provisions of this agreement and by no other determination, arbitra- tion award, etc. Following execution of the new contract, Respondent Employer hired no new employees until January 23, 1976, at the earliest. It is conceded by Respondent Employer that had it honored the award and recalled the strikers who signed the unemployment roster, all Charging Parties would have been recalled to fill vacancies by January 26, 1977. C. Analysis 1. The 10(b) issue Respondent Employer and Respondent Unions join in a contention that the complaint in this proceeding is time barred by virtue of Section 10(b) of the Act." In this re- spect, the facts show that the rights acquired by the strikers pursuant to the arbitration award were abrogated through a '4 See G.C. Exh. 3(b). Note that a reprint of the agreement (G.C. Exh. 3(a)) reflects a variation in language from that which was apparently agreed to in the "attachment." Thus, that document states: This agreement supersedes and cancels all previous agreements and/or arbitration awards, both written and oral, and constitutes the entire agreement between the parties. Ihe basis lor this nonsubstantive change is not explained. Sec I((h) of the Act provides in material part: [Nlo complaint shall issue based upon any unfair labor practice occur- nng more than 6 months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made ... 214 STRICK CORPORATION collective-bargaining agreement which became effective on September 19, 1975. Actual detriment, however, was not sustained until January 23, 1976, when vacancies first opened and were filled by new hires, rather than by dis- charged strikers who had signed the recall roster and were eligible for preference under the formula set forth in the arbitration award. The unfair labor practice charge was not filed until October 27, 1976. There is initial merit in the observation of the Respondents that the foregoing consti- tutes prima facie evidence that the complaint is barred by Section 10(b) of the Act.'6 However, the General Counsel and the Charging Parties point to other factors which. ac- cording to their view, require a relaxation of the statutory limitation under established precedent. In Brvyan, supra, the Supreme Court, in finding, contrary to the Board, that a complaint was time barred under Section 10(b), was careful to point out "we are not dealing with a case of fraudulent concealment alleged to toll the statute."" In this spirit, Respondents' contention is countered by the claim that, since the strikers were not directly or con- structively notified of the abrogation of the award, the run- ning of the 6-month limitation period was tolled until such time as the alleged discriminatees acquired knowledge thereof. Consistent with this view, Board precedent reflects that where workingmen are the object of adverse action by either a labor organization or an employer, which is alleged to be discriminatory, the victim of alleged discrimination is "entitled to clear notice of Respondent's adverse action be- fore the statute of limitations would begin to run."' This view has received court approval,' and constitutes the focal point for resolution of the 10(b) defense herein. Sensible application of precedent requires a conclusion that the General Counsel met his burden by establishing that nei- ther Respondent Unions nor Respondent Employer pro- vided those adversely affected by their action of September 19, 1975, formal or constructive notice of the impairment of the award. Beyond that, the General Counsel was not im- pelled to go further and prove that the date on which actual knowledge was acquired followed the aforesaid cutoff date. Section 10(b) is a shield to protect charged parties against the consequences of delay rather than a shield by which wrongdoers may entwine the 6-month limitation within a purposeful scheme to effect discrimination in a manner leaving the victims without statutory remedy. Here the ac- tion complained of relates to a deliberate repudiation of rights acquired by the discharged strikers through the arbi- tral process. It is not unreasonable to assume that Respon- dents' failure to publicize this action to the strikers was accompanied by a conscious regard for the high probability that, had they done so, the bargain struck would meet im- mediate challenge. In the circumstances, the possibility that the failure to provide notice involved a deliberate and fraudulent concealment is sufficiently great to require Re- spondents to purge themselves of any possible advantage they might reap from their conduct in this regard. Thus. it was their burden. and not that of the General Counsel, to prove that the failure to provide notice did not contribute fatally to the delayed filing of the unfair labor practice charges by themselves demonstrating that the individual dischargees knew, prior to the 10(b) cutoff date, that their rights had been abrogated through the collective-bargaining process. The record in this case does not permit a finding that the dischargees acquired such knowledge prior to April 29. 1976. In this regard, apart from Anderson, Horek. Maurer, and Cicini, the four dischargees who testified on this ques- tion. there is no evidence whatever that the balance of those signing the reemployment roster were ever made aware that their reemployment opportunities had been negated. I am inclined to believe the testimony of Anderson, Horek, and Maurer'2 that they first learned that the contract had been renegotiated after retaining Peter Broida as their attorney. This finding is made despite the fact that on June 2. 1976. a complaint was filed on their behalf in the United States District Court for the Middle District of Pennsylvania. which included the following allegations: In violation of the collective bargaining agreement, and in violation of the arbitration award. Strick has failed and refused to offer employment to plaintiffs from January 15, 1975, to the present in that the op- portunity to fill all production and maintenance acan- cies has not been first offered to plaintiffs, employees on the reemployment roster, who have at all times been qualified to fill the employment vacancies. * Since January 15. 1975. Strick has hired at least 40 production and maintenance employees at its Berwick plant, none of whom have appeared on the reemploy- ment roster. It is not beyond possibility that based upon rumor rather than hard fact, the attorney for the strikers instituted the action in the District Court, hoping that through discovery procedures the rumor would be substantiated. In an event. the language in that complaint furnishes no basis for con- cluding that the requisite knowledge was obtained prior to the 10(b) cutoff date. Accordingly. there being no clear evidence that the dis- charged strikers knew of the alleged violation of their rights prior to April 29. 1976. 1 find that 10(b) does not constitute a bar to litigation of the instant complaint. 1 6 See Local Lodge No. 1424, International Association of Uachinists, A FL CIO, [Bryan Manufacturing Company] v. N.L.R.B., 362 U.S. 411 (1960). " 362 U.S. at 429, fn. 19. I L C. Cassidv & Son, Inc., 185 NLRB 920, 926 (1970); See also Wiscon- sin River Valley District Council of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Skippy Enterprises, Inc.), 211 NLRB 222. 227 (1974); Alabaster Lime Company, Inc., 194 NLRB 1116. 1118 (1972). 19 See. e.g., N. L.R B v. Shawnee Industries, 333 F 2d. 221, 224 (O0th Cir. 1964). 20 Cicini engaged an attorney, Joseph Torsella, in connection with the ru- mored hiring by the Respondent Employer. In February 1976. Torsella wrote Respondent Employer. The latter forwarded a response on Februarv 23, 1976, specifically advising that sec. 21.01 of the newly negotiated collec- tive-bargaining agreement abrogated the award. Cicini insists that his attor- ney did not contact him and that he received no information to this effect. Even were I to disbelieve Cicini's testimony in this regard, the record would merely permit speculation as to when he received such information. 215 ~a DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The merits a. Specific evidence of motivation Prior to consideration of the alleged breach of the duty of fair representation, it is necessary to consider contentions that Respondent Employer sought abrogation of the arbi- tration award out of a specific motivation to eliminate ac- tive supporters who had been engaged in the filing of griev- ances and other complaints. The evidence does not substantiate this contention.' In this connection, the general testimony of Horek and Anderson that prior to the strike, the bargaining relation- ship had been marked by an inordinate number of griev- ances and a general lack of harmony was conclusionary, opinionated, and nonpersuasive. I have previously ex- pressed my doubts as to the credibility of Horek and An- derson, and their testimony in this regard struck me as no more than unreliable argumentation. Nonetheless, it is a fact that some time prior to the strike Ray Choley, the plant manager at Berwick, suggested, in response to Horek's expression of dissatisfaction with Local 644, that there were methods for getting rid of that Local, and that he subsequently forwarded to Horek an article explaining the mechanics of decertification. In a similar category is testimony by nonstriker Frank Appleby, who related that during the strike he had a conversation with McNamara in which the possibility of getting rid of the UIAW was discussed. However, there is no perceptible nex- us between animus toward Local 644 and conduct under scrutiny in this proceeding. To the contrary, the unlawful conduct attributed to the Employer in this proceeding led to reinforcement of the Union's representative status for an additional 3-year period, rather than its demise. More cogent is the General Counsel's reference to a meeting in the fall of 1974 between an admitted supervisor, Joseph Marston, and Horek, Anderson, and another dis- charged employee. At the time, Marston was disenchanted with his own conditions of work. Anderson testified that on that occasion Marston informed him that the relationship between the Union and the Company was very bad and that Marston himself had seen a list of workers whom he was told to get rid of. Horek testified that Marston stated that the Company was unfair, and that he would quit if he had another job. torek further related that Marston stated that Choley and McNamara had made up a list of the strik- ers that they wanted to get rid of, including Horek, Ander- son, Cicini, Mike Harrison, Moe Barski, and Augustinelli. :l With respect to a somewhat collateral matter, I find that under no the- or) substantiated on this record may a violation be found in the case of Charging Party Louis S. Trapane. Though Trapane was present at the hear- ing, he was not called as a witness. Uncontradicted and credited testimony establishes that at the time of the strike, Trapane, having sustained a com- pensahle disability under workmen's compensation laws, was not actively employed Subsequently. in September 1974, Trapane received a release en- abling him to return to work However, at that time, he informed representa- tives of the Company that he had no intention of returning because of the labor dispute. He was not discharged, and hence was neither covered by the grievance submitted to the arbitrator nor a beneficiary of the final award. Insofar as this record discloses, Trapane at all times material herein was a striker who withdrew his services in violation of the no-strike clause in the governing collectise-bargaining agreement. As such, he was engaged in con- duct beyond the protective pale of the Act. Horek went on to testify that Cicini and Augustinelli were on the list because of their involvement in grievance ac- tivity.22 Marston credibly testified that he had no first-hand knowledge that such a list existed, but assumed that it did because shortly after the commencement of the strike, all foremen were individually interviewed by the general fore- man and director of personnel who sought information as to which of the strikers under their jurisdiction they wanted back. Marston credibly testified that the names he passed on to Horek and Anderson at their meeting was based on information he received from conversations with foremen in other departments. I credit the testimony of Marston over that of Horek and Anderson. While it is a fact that Marston, at the hearing, adhered to the view that he had heard that the Company had no inten- tion of reemploying Horek and Anderson and while it also appears that Choley, after the strike, attempted to secure the discharge of Horek and Anderson from an interim em- ployer,2 in the circumstances, it is somewhat difficult to believe that any special interest on the part of Respondent Employer in eliminating them from its work force figured to any extent in Walsh's decision to nullify reemployment rights of some 124 strikers. I would note, in passing that the evidence of animus against the named individuals is also lessened by the failure of the record to unambiguously re- flect that it was based on anything other than their unpro- tected activity. With respect to the General Counsel's contentions in this regard, and in contrast with the inferences he urges upon me, I find the testimony of Industrial Relations Director Walsh as to why the Company sought abrogation of the award to be entirely credible. I consider it unlikely that the Company's insistence upon abrogation of the award was motivated by anything other than its interest in resurrecting the discipline meted out against the entire group of strikers for their unprotected conduct. Respondent Employer's hos- tility to the unlawful strike, to participants therein, and to the award of the arbitrator was perfectly understandable. The walkout of June 11 was the fourth in a series of unpro- tected stoppages within a 16-month period. Nonetheless, the Employer's position after the walkout of July 11, 1974, and prior to the discharges reflected a willingness to com- promise over the strikers' grievances in order to encourage 22 A tape exists which amounts to a partial reproduction of the conversa- tion in question. Although the tape was not complete, all parties had the opportunity to introduce whatever segments they wished. Respondent Em- ployer's Exh. I is a partial transcription thereof. It indicates that Barski's name was brought up by Horek and not Marston, but more significant is the fact that the only reasons afforded by Marston appearing on the face of the exhibit for inclusion of strikers on the alleged list were agitation during the work stoppage, and theft. Nowhere in the transcript does it appear that Marston made any reference to grievance activity by the strikers. After their discharges, Horek and Anderson obtained interim employ- ment with a security service, called M & T Security, in the fall of 1974. M & T Security was under contract with an industrial park known as BIDA. The Employer's plant was located in the BIDA complex. Choley admitted that he telephoned Warren Haas, a BIDA representative responsible for security services in the complex, and complained as to Anderson's and Horek's employment with M & T, a firm whose billings were paid in part by Strick. Choley requested the discharge of Horek and Anderson from M & T expressing his doubt as to whether they, as wildcat strikers, could provide adequate security to incumbent employees attempting to enter and leave the plant. 216 STRICK CORPORATION them to abide by their contractual commitment and to re- turn to work while utilizing agreed-upon dispute settlement machinery to remedy any adverse conditions. Even after the discharges, the Employer in August 1974 offered to re- store all the strikers, albeit as new employees and without seniority. While I am convinced that the effort to secure and negotiate repudiation of the remedial aspects of the arbitrator's award was in its entirety motivated by a desire to perfect discipline against the strikers as a class, I am mindful that as an incidental effect of said action, certain strikers whom the Employer considered undesirable were eliminated for future employment. Nonetheless, fair consid- eration, based upon the realities, precludes even faint suspi- cion that a desire to accomplish any such objective was a substantial contributing factor herein. Accordingly, a pre- ponderance of the record does not substantiate the charge that independent evidence exists showing that Respondent Employer acted upon any proscribed motivation. b. The breach of the dut of fair representation 'the credible evidence in this case fails to raise any ques- tion as to the diligence with which the exclusive representa- tive sought to vindicate the rights of the discharged strikers prior to the opening of contract renewal negotiations in July 1975.14 The International and Local participated in the preparation and actual prosecution of the grievance chal- lenging the discharges, and represented individual strikers seeking unemployment insurance compensation. There is also evidence that continuing allegiance to the strikers prompted union officials to ignore the nonstrikers and re- placements until January 1975. In that month this latter category of actively employed workers designated their own shop committee. Subsequently, in July 1975, contract re- newal negotiations opened, with the Employer stressing throughout that abrogation of the reemployment provisions of the arbitrator's award was indispensable to the execution of a new contract. As negotiations neared the impasse stage, Respondent Unions were pushed to the dilemma. Powerless to strike because employees on payroll status and their shop committee agreed with the Company's position on clause 21.01, and faced with the Employer's adamant insistence upon that provision in any new agreement, the Union was confronted with the very real choice of either losing the unit or accepting an agreement within the frame- work of the Employer's demand. Because it took the latter course, and in doing so did not allow the strikers to partici- pate in the ratification process, or notify them thereof, it is claimed that the Union violated its duty to represent fairly the discharged strikers and thereby violated Section 8(b)(1)(A) and (b)(2) of the Act. The concept that a labor organization which fails to rep- resent all employees equally may commit an unfair labor practice was first enunciated by the Board in Miranda Fuel Company, Inc., 140 NLRB 181 (1962). The Board adopted that view against a background of judicial authority ac- knowledging a legally enforceable duty on the part of labor organizations toward represented employees. Thus, in 14 Testimony by Horek and Anderson suggesting otherwise was not be- lieved. Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192, 202 203 (1944), the Supreme Court stated: Congress has seen fit to clothe the bargaining repre- sentative with powers comparable to those possessed by a legislative body both to create and restrict the rights of those whom it represents . .., but it has also imposed on the representative a corresponding duty. We hold that the language of the Act ... expresses the aim of Congress to impose on the bargaining represent- ative of a craft or class of employees the duty to exer- cise fairly the power conferred upon it in behalf of all those for whom it acts. without hostile discrimination against them." As for the proof responsibilities under that doctrine, it appears that the party asserting such a breach carries an initial burden which varies depending upon the circum- stances. "The test is whether the Union's conduct toward a unit employee is arbitrary, discriminatory, or in bad faith. A union has violated its duty of fair representation and Section 8(b)(1)(A) of the Act only if this question can be answered in the affirmative."2 " Conduct on the part of a union which results in a detriment to an individual or class of represented employees may on its face be arbitrary and discriminatory. In such circumstances bad faith is not an indispensable element of a violation and need not be sub- stantiated by collateral proof." On the other hand, where, as here, the impropriety stems from collective-bargaining negotiations, inquiry as to moti- vation achieves heightened significance. In such circum- stances, it is necessary to accommodate tension between the duty of fair representation and the wide area of discretion afforded the bargaining representative. "The complete sat- isfaction of all who are represented is hardly to be expected. A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents, subject always to complete good faith and honesty of pur- pose in the exercise of its discretion."2 ' The need for judicial and administrative restraint where intervention might im- pair the bargaining process was expressed early in the de- velopment of this concept to assure that the duty of fair representation not be invoked in the manner which ham- strings labor organizations in effecting one of their most critical responsibilities. Thus, in Steele v. Louisville and Nashville R.R., supra, it was stated at 203: This does not mean that the statutory representative of a craft is barred from making contracts which may have unfavorable effects on some of the members of the craft represented. Variations in the terms of the contract based on differences relevant to the autho- rized purposes of the contract in conditions to which they are to be applied, such as differences in seniority. the type of work performed, the competence and skill with which it is performed, are within the scope of the 25 The statute involved was the Railway Labor Act. 26 See King Soopers. Inc. 222 NLRB 1011. 1019 (1976): United Steelwork- ers of America, AFL-CIO, et al (Duval Corporation), 226 NLRB 772, 784 (1976). 27 See Vaca v. Sipes, 386 U.S. 171 (1967); Ruzica v. General Motors Corpo- ration, 523 F.2d. 306, 309-310 (6th Cir. 1975). Warehouse Umnion, Local 860, Teamsters (The Emporium), 236 N'LRB 844 (19781. "2 Ford Motor Conmpan) . Huffman, 345 U.S. 330, 338 (1953). 217 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining representation of a craft, all of whose mem- bers are not identical in their interest or merit. In Ford Motor Company v. Huffman, supra at 338, the Su- preme Court stated: Inevitably differences arise in the manner and degree to which the terms of any negotiated agreement affect individual employees and classes of employees. The mere existence of such differences does not make them invalid ... And in Simberlund v. Long Island Railroad Company, 421 F.2d. 1219, 1227 (2d Cir. 1970), the Court stated: To hold otherwise on this record would prevent a union from ever striking a bargain which benefits some of its members over others, a situation clearly at odds with Federal labor policy as enunciated in such cases as Steele and Ford Motor Co. The foregoing makes clear that the element of majority rule embedded in the concept of free collective bargaining may frequently collide with the duty of fair representation where the latter is invoked on behalf of those adversely affected through the give and take of negotiations. Neither individual rights nor the interest in fostering a free system of collective bargaining should be preferred at the expense of the other. Accommodation of these competing interests may only be realized by imposing an evidentiary burden upon the party seeking to upset a duly negotiated agree- ment that the labor organization did in fact act upon arbi- trary, invidious, or discriminatory grounds. With these general principles in mind, and taking full account of the realities, in the light of the credible testi- mony on this record, I am convinced that the Union har- bored no animus against the strikers, and that it entered the 1975 negotiations with no interest to be served by curtail- ment of their rights. Faced with the Employer's adamant position in negotiations, it ultimately agreed under condi- tions in which the only employees who could effectively bring pressure upon the Employer would be asked to strike in support of a position which threatened their own job security and with which they disagreed. Furthermore, any failure to agree on the Unions' part would most certainly have deferred benefits for the actively employed replace- ments and nonstrikers. There could be little doubt in Sep- tember 1975, when negotiations drew to a close, that fore- stalled negotiations over Article 21.01 would, to put it mildly, endanger the Unions' representative status at Ber- wick. While representatives of the Unions waivered in their testimony in this respect, I am convinced that to avoid the obvious consequences of provoking an impasse over this issue and in the interest of self-preservation the Unions ulti- mately accepted." w9 G.C. Exh. 9(b) is entitled "ANSWERS OF LOCAL 644 TO PLAIN- TIFFS' INTERROGATORIES." That document is signed by Robert C. Cohen as an attorney for Local Union No. 644. The accuracy of the content thereof is affirmed by sworn affidavit of Joseph R. Connors. The interrogato- ries were prepared as part of the pretrial discovery procedure in the suit by the Charging Parties under Section 301 of the Act in the U.S. District Court for the Middle District of Pennsylvania. Connors testified in the proceeding that it was Clauser, not himself, who acted as the principal spokesman dur- ing the negotiations. Item 7 of the G.C. Exh. 9(b) recites as follows: a. The provision was demanded by Strick which threatened to bargain to impasse for its inclusion. Both the General Counsel and the Charging Parties con- tend that the foregoing afforded no justification for offend- ing the rights of the strikers, urging that ". . . a political threat to a union's security does not justify the sacrifice of the employment interests of a politically weaker group of employees." The substance of their claim is that labor or- ganizations generally are enjoined by the duty of fair repre- sentation from sacrificing individual employment rights to enhance their own status. For support, the General Counsel and Charging Parties rely heavily upon Red Ball Motor Freight, Inc., 157 NLRB 1237, enfd. 379 F.2d 137 (D.C. Cir. 1967); and Barton Brands, Ltd., 213 NLRB 640 (1974). In Red Ball, the issue arose in the context of a merger of two distinct working complements, represented by different labor organizations, into a single integrated operation. It was agreed that the election process of the NLRB would be utilized to resolve the competing claims for representation. During the preelection campaign, the union which formerly represented the larger group offered assurances to those em- ployees that, if designated, it would, through the process of negotiation, provide them with a higher seniority ranking than would be afforded employees previously represented by the other union. In finding that this statement consti- tuted coercion within the meaning of Section 8(b)(l)(A) of the Act, it was concluded that the duty of fair representa- tion was violated by such preelection statements since no reasonable basis for the discrimination proposed against the smaller group was demonstrated and because the promised action did ". . . not reflect the kind of compromise between competing interests which collective bargaining daily re- quires, but would serve the interest of UTE and the major- ity of the employees in the unit it [UTE] sought to represent with hostility to those of the minority." ° In Barton Brands, Ltd., supra, the Board found a breach of the duty of fair representation growing out of negotia- tions which took place after the merger of separate bargain- ing units. Initially seniority of employees in the newly inte- grated unit was dovetailed. However, during subsequent contract negotiations, the union proposed and ultimately obtained the employer's assent to a provision discriminat- ing, for purposes of seniority, against the employees whose prior employment was in the smaller unit. The Administra- tive Law Judge initially dismissed the complaint in its en- tirety. The Board reversed, finding that the Union violated Section 8(b)(2) and (b)(l)(A) and that the Employer vio- b. Existing employees in the plant threatened to initiate decertification proceedings if individuals not employed who had been discharged as wildcat strikers were reemployed and given senionty over them. c. The general give and take of negotiations, together with the above factors, persuaded Local 644 that the individuals who (1) had partici- pated in the wildcat stnke; (2) had subjected the Union to possible damage claims; (3) had properly been discharged by the employer; and (4) had not paid dues to the Union for over a year, should not be given preferential seniority treatment. Fairly construed, against the credible evidence in this record, I do not take item (c) above as an admission against interest as to the motive of the Union. In the circumstances, I am convinced that this portion of the interrogatories consisted of argumentative expression, calculated to arouse sympathy for the Unions' action as distinguished from accurate revelation as to the consider- ations which actually prompted the union representatives to accept the Em- ployer's proposal. 21.01. 0 157 NLRB at 1245. 218 STRICK CORPORATION lated Section 8(a)(3) and (1) of the Act concluding that the union breached its duty of fair representation by effecting a reduction in seniority at the expense of a smaller group of employees. The Board described the basis for the union's action as follows: "[T]he motivation for the Union's stand was to assure the election of Ken Cecil by the numerically superior Barton employees at the expense of the small mi- nority of former Glenco employees. 213 NLRB at 641.3' Barton Brands, supra, and Red Ball, supra, afford no clear-cut answer to the issue under consideration here. Det- rimental action against segments of a bargaining unit to bolster the political stature of a union official or to enable a labor organization to obtain advantage over a rival union with respect to a pending question concerning representa- tion has little resemblance to the motivation on which Re- spondent Unions acted herein. Here, we have an incumbent representative, acting out of the institutional consideration of self-preservation under most extenuating circumstances. While there can be no question but that, in the process, the union representatives knowingly disadvantaged one cate- gory of employees, the inquiry does not end there. Under the precedent, the action by the Union must be found to have been an "arbitrary sacrifice of a group of employees' rights in favor of another stronger or more politically fa- vored group .... " See A. Gainey v. Brotherhood of Railway and Steamship Clerks, etc., 313 F.2d 318, 324 (3d Cir. 1963). Basic statutory policies might well be offended by any notion that arbitrary conduct is inherent in a labor organi- zation's effort to preserve its representative status at the expense of certain employees. To so hold would clash with the desirability of maintaining the stability of existing col- lective-bargaining relationships, long recognized as a cen- tral objective of the Act. Consistent with such objective, over the years, concepts have been devised by the Board to implement that policy, which apply often at the expense of even a majority of employees in a particular bargaining unit. Included are the Board's contract bar rule, the pre- sumption of continuing majority, and the principle that an established relationship is invulnerable to challenge within 1 year after certification or a reasonable period of time if established pursuant to informal recognition. To serve these same ends, it would seem that, at the very least, a labor organization's action in the interest of preserving its repre- sentative status-an ever-present concern upon those on the union side of the negotiating table-should only be con- demned after careful thought as to the standard of respon- sibility which should rightfully emerge from all surrounding facts. Consistent therewith, it is concluded that a negotiated I1 The Circuit Court of the United States for the Seventh Circuit in Barton Brands, Ld. v. N.L.R.B., 529 F.2d. 793, 797 (7th Cir. 1976), disagreed with the Board, and concluded that the record did not support a basis for imput- ing the above-described motivation to the union. The court reasoned that the union official was not acting within the scope of his authority, and therefore his motivation was not chargeable to the union as a whole. Nonetheless, the court remanded the proceeding to the Board for consideration of whether its decision might be sustained on other grounds. Thereafter, the Board reaf- firmed its original findings. after concluding, within the framework of the court's remand, that the union failed to make the required showing necessary to absolve it of liability; i.e., that the negotiated endtailing of the seniority of the smaller group was based upon objective justification. As for the em- ployer, the Board similarly concluded that the employer failed to demon- strate that its entry into that agreement was based upon legitimate business considerations. See Barton Brands, Ld, 228 NLRB 889 (197 7). change to the detriment of a segment of the bargaining unit in the interest of avoiding decertification lacks the inherent strain of arbitrariness. With the foregoing in mind, I find that the discharged strikers should be relegated to whatever remedies might be available to them under Section 301 of the Act.32 The fac- tors set forth below lead to the conclusion that the duty of fair representation was not violated herein. Thus, the Unions' necessity to preserve their status as exclusive representative was occasioned by forces which were not of their own making. They neither inspired, abetted, nor condoned the conduct of the dischargees which robbed all substance from the contractual assurance pro- vided the Employer that during the years 1972 to 1975, production would continue unabated by disruptive influ- ences of work stoppages. Similarly the proposal to abrogate the arbitration award was contrived, injected into the nego- tiations, and insisted upon as the price for a new contract, all solely by the Employer. The Unions were caught up in that drift of events when on September 18, 1975, they as- sented to the Employer's proposal 21.01. True, at that time the discharged strikers, by virtue of the arbitration award, had a reasonable expectancy of future unemployment and as such were within the class benefiting from the duty of fair representation. Any definition of what that duty entailed, however, must take account of the con- flicting interest of the other segment in the represented unit, who also fell within the protective scope of that doctrine. Thus, nonstrikers and replacements, by virtue of the collec- tive-bargaining agreement under which they were em- ployed and the union-security provisions thereof, were re- quired to become union members. It is not inconceivable that many of them crossed the picket lines and reported to work under the assumption that their future job security would not be threatened by individuals discharged because of their participation in the unlawful strike." The collective- bargaining agreement in effect at that time specifically pro- vided that seniority shall be broken "if an employee is dis- charged for good cause."" Under such a clause there would be no reason for them to assume that an arbitrator would conclude that strikers, though discharged for cause. should be entitled to seniority superior to theirs. Their support of the Employer's position on clause 21.01 was predicated upon more than an outright power grab. More significant, however, to assessment of the degree of responsibility to be imposed upon the Unions are the hard practical considerations, which bore directly upon the Unions' position in the 1975 negotiations, and the relative standing of the represented groups with respect to those conditions. The dischargees had no interest whatever in timely culmination of the negotiations, for their participa- 12 it is entirely possible that such a contract action on the facts involved would produce a remedy more compatible with the equities than those which would be imposed here. 13 Testimony was adduced from Horek and Anderson to the effect that they were not willing participants in the strike, but did not report to work during the period prior to their discharges, solely because coerced by the conduct of other strikers. Both were regarded as unreliable witnesses. The testimony of Horek and Anderson as to their uncommunicated state of mind was self-serving. contradictory, and did not have a ring of truth. It impressed me as afterthought and, like other uncorroborated aspects of their testimony. was not believed. '4 See G.C. Exh. 2, sec. 908(b). 219 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion in ultimate benefits was inchoate and perhaps even conditional. On the other hand, any prolongation of the negotiations would be at the expense of the actively em- ployed nonstrikers and replacements. To them, continued resistance by their representative to proposal 21.01 meant deferred enjoyment of other agreed-upon benefit gains. Yet, this was the sole group in a position to impose economic restraints upon the Employer in the event of impasse. The Unions were in no position to marshal support from the latter in furtherance of a bargaining position which, if suc- cessfully maintained, would weaken the job security of that group. Such irreconcilable conflict within a represented unit and its radiating effects at the negotiating table hardly provide an ideal format for application of technical legal concep- tions. No term or condition of employment potentially is more divisive than seniority. Any negotiated change in an existing seniority structure doubtless operates to disadvan- tage certain unit numbers. In such circumstances, the exclu- sive representative is asked to serve two masters, and overzealous attentiveness to egality ought not be practiced by the authorities to the point whereby such considerations are superficially applied so as to confuse the duties of a fiduciary with the more stringent standards applicable to insurers. Respondent Unions in this case preferred agreement to inertia, and their having done so, albeit at the expense of the dischargees, was not in disharmony with the pragmatics of collective bargaining. Considering all the foregoing, I find that the record does not substantiate that the Union, in yielding to the Employ- er's demand and acting in a fashion consistent with the interest of all actively employed elements in the bargaining unit, breached any standard of responsibility owed to the discharged strikers. It is my further conclusion that there is no merit in the General Counsel's contention that the 8(b)(2) and 8(b)( )(A) allegations are nonetheless substanti- ated by reason of the Unions' failure to notify the dis- charged strikers of the agreement reached and to allow their participation in the ratification process. Here, the Unions' contract settlement was based on hard practical considerations inoffensive to statutory interests. It was at that juncture that the "die was legitimately cast."35 Any reversal of that conclusion must rest upon imposition of a duty of notification, which would have required the Unions to invite a meaningless yet potentially explosive confronta- tion between the conflicting groups. Allowing the discharg- ees to participate in the ratification process could inflame and obstruct, even though that group could not alleviate the conditions leading to the Unions' agreement. Having found that in the particular circumstances of this case, Re- spondent Unions' deference to the actively employed work 15 Cf. General Truck Drivers, Warehousemen, Helpers and Automotive Em- ployees, Local 315. Teamsters (Rhodes & Jamieson, Ltd.), 217 NLRB 616, 619 (1975). force did not entail a breach of any fiduciary obligation, the notice issue is controlled thereby. That view should not be altered through indirection by giving overarching weight to matters which, in the circumstances, would derogate from rather than facilitate the process of collective bargaining. Accordingly, it is concluded that the 8(b)(1)(A) and 8(b)(2) allegations are not substantiated by the Unions' failure to afford the discharged strikers notice of and an opportunity to participate in the ratification process. Based upon the foregoing, and as no independent evi- dence exists that Respondent Employer pressed for abroga- tion of the arbitration award for reasons violative of Section 8(a)(3) and (1) of the Act, said allegations have not been substantiated by a preponderance of the evidence, and dis- missal thereof shall be recommended. CONCLUSIONS OF LAW 1. The Respondent Employer is an employer within the meaning of Section 2(2) of the Act and is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent Unions are labor organizations within the meaning of Section 2(5) of the Act, and at all times material herein have been the exclusive representative of certain employees of the Employer fbr the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 3. Respondent Employer did not violate Section 8(a)(3) and (I) of the Act and Respondent Unions did not violate Section 8(a)(1)(A) and (b)(2) of the Act by entering an agreement nullifying seniority and employment opportuni- ties acquired by certain discharged strikers pursuant to an arbitration award. Based on the foregoing findings of fact and conclusions of law and upon the entire record in this proceeding, and pursuant to Section 10(c) of the Act." I issue the following recommended: ORDER37 It is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety. c Respondent Unions seek assessment of litigation costs against the Charging Party and General Counsel in view of alleged bad faith exhibited by them in litigating this proceeding. Aside from the question as to whether authority exists for affording such reimbursement, neither the underlying unfair labor practice charge, the complaint issued thereon, nor the litigation pursuant thereto, involved frivolous claims or bad faith on the part of either the Charging Party or the General Counsel. The request of Respondent Unions is denied. 1" In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 220