Artim Transportation System, Inc.

ARTIM TRANSPORTATION, INC. 795 Artim Transportation System, Inc. and Morris Bar- bee and Sequoyah Colbert. Case 13-CA-7360 July 14, 1967 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On March 9, 1967, Trial Examiner Sidney J. Barban issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed excep- tions to the Decision and a supporting brief. The General Counsel filed cross-exceptions and sup- porting and answering briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board had delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, cross- exceptions, and briefs, and the entire record in this case, and hereby adopts the findings,, conclusions,2 and recommendations of the Trial Examiner, ex- cept as noted below.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the Respondent, Artim Transportation System, Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Delete from paragraph 2(a) of the Recom- mended Order the entire sentence beginning with the word "Offer" and ending with the word "above" and substitute therefor the following: "Offer to all employees discharged for participa- tion in the work stoppage beginning on February 14, 1966, who have not previously been offered reinstatement, and specifically the employees named below, 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 for any loss of pay they may have suffered by reason of Respond- ent's discharge and refusal to reinstate them, in the manner set forth in the section entitled `The Rem- edy' ": 2. Insert in the second indented paragraph of Appendix A immediately after the words "by reason of their discharge" the following: "and refusal of reinstatement from 5 days after the date of their unconditional application for rein- statement" ' For the reasons stated by the Trial Examiner in his Decision , we agree that it is unnecessary to consider whether Respondent also violated Sec- tion 8(a)(3) of the Act as alleged in the complaint 2 As we agree with the Trial Examiner 's finding that the provisions of article 43 of the Agreement were not applicable to the February 14 work stoppage and that the work stoppage was protected by the Act, we need not consider , nor do we decide , whether the work stoppage would be pro- tected if the no-strike provisions of article 43 were applicable. a The General Counsel requests that we make clear in our Order that all employees , who were discharged by Respondent on or about February 15, 1966 , are entitled to backpay from the date of their discharge to the date of reinstatement While not made entirely clear in his remedy, it ap- pears that the Trial Examiner granted the remedy as requested by the General Counsel . However, we find no reason in this record for altering our usual remedy where employees are unlawfully discharged while on strike. Accordingly , we hereby modify the Trial Examiner 's remedy and Recommended Order by limiting the period of backpay to run 5 days from the date of the employees ' unconditional application for reinstatement to the date of the Respondent's offer of reinstatement Member Brown, on the basis of the particular circumstances of this case, concurs in the limited backpay remedy . Cf his dissenting opinion in Sea-Way Distributing, Inc., 143 NLRB 460,461 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE SIDNEY J. BARBAN, Trial Examiner: This matter was heard before me at Chicago, Illinois, on October 17, 18, and 19 , 1966, upon allegations in the complaint issued on July 22, 1966, based on charges filed on February 17, 1966, that the Respondent had violated Section 8(a)(1) and (3) of the Act. In its answer, the Respondent denied that it had violated the Act as alleged. I Upon the entire record in this case ,2 from observation of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respondent, the Trial Examiner makes the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent, an Indiana corporation with its principal office at Hammond, Indiana, is an interstate motor carrier which in the year prior to the issuance of the complaint in this matter received revenue in excess of $50,000 from its interstate operations . Respondent admits and it is found that Respondent is engaged in commerce within the meaning ofthe Act. The name of the Respondent was corrected at the hearing 2 The transcript of hearing contains a number of typographical errors. 166 NLRB No. 87 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED Local No. 142, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization within the meaning of the Act, and at all times material herein was a party to a collective-bar- gaining contract with the Respondent, herein called the Agreement. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Basic Issues Certain employees of the Respondent engaged in a work stoppage beginning on February 14, 1966, and the Respondent notified those who did not return within 24 hours that they had been discharged. The discharges were based upon section 43 of the Agreement, which, in addi- tion to providing that there should be no strikes, provides that after 24 hours the Employer is free to discharge em- ployees engaged in an unauthorized strike. The General Counsel contends that the work stoppage was caused in substantial part by a failure and refusal of the Respondent to abide by a grievance award, made on January 20, 1966, by which action, it is asserted, the Respondent forfeited any right to the benefit of section 43 of the contract. Under this view, the employees were engaged in protected concerted activities justified by Respondent's own refusal to pay the awards due under the grievance procedure, and Respondent's discharge of the employees violated the Act. The Respondent, on the other hand, asserts that: (1) it did not refuse to pay the grievance awards of January 20, (2) the work stoppage was not caused by dissatisfaction over compliance with the January 20 awards, but was only the latest manifestation of a long-existing dissatisfac- tion with methods of compensation, and with a December 1965 grievance award setting methods of compensation with which Respondent was in compliance, and (3) the work stoppage was in derogation of the Union as representative of Respondent's employees. The Re- spondent therefore contends that the work stoppage waE unprotected and the discharges were lawful. B. The Facts 1. Introduction In October 1965, the Respondent, under authority granted by the Interstate Commerce Commission, took over the operation of a motor carrier service previously run by an employer identified as Steel Transportation, herein called Steel Transport. In an effort to avoid problems which might arise from this assumption of Steel Transport's operation, the Respondent, which had previ- ously operated a smaller over-the-road service of its own, met with representatives of the Union to seek advice and instructions. According to Respondent's vice president, Ralph Artim, among the matters discussed was the method to be used in dispatching trucks out of the Detroit terminal formerly operated by Steel Transport. Artim clearly considered that the parties there agreed, verbally, that dispatch of trucks out of that terminal should be on a "first in, first out" basis, without regard to whether the driver and equipment involved had previously been Steel Transport or Artim. This was a matter of importance since the compensation of the drivers was principally on a trip basis. The failure to get this matter properly settled led to the grievance awards of January 20, 1966, discussed hereinafter. 2. The methods of driver compensation Since contention over methods of compensation bulks so large in the testimony and in the issues presented in this matter, an attempt must be made at the outset to straighten out the requirements of the Agreement and the practices in effect when the Respondent took over the operations of Steel Transport. The applicable wage provisions of the Agreement, arti- cle 52, section 1, provide, in pertinent part, as follows: There shall be one method of payment under this Agreement, namely on a percentage of gross revenue. Driver's wages shall be no less than twenty- three (23%) per cent of gross revenue .... The above percentage rate method of compensation is a minimum for the convenience of computation and is not intended to substitute for wages due under all ap- plicable provisions ... herein. If a grievance is filed, compensation which may be due shall be determined by comparing percentage payment for driver and equipemnt against hourly or mileage payment for driver and equipment which may have been earned and due , as hereinafter pro- vided, on a calendar month basis: Rates of pay for driver's wages for guarantee com- parison purposes shall be as follows: [The Agreement here sets out applicable pay rates on a mileage basis, and applicable addi- tional allowances computed on an hourly basis.] Article 60, section 2, of the Agreement provides that "Vacation and holiday pay shall together be calculated on the basis of three (3%) per cent of gross revenue of the equipment driven." Steel Transport, with the acquiescence of the Union, had adopted a practice of paying some of its drivers on a basis different from that provided in the Agreement, which the employees were told by Steel Transport was in- tended to more fairly equalize their earnings. A repre- sentative of the Union contends that this practice gave the employees as much or more than required by the Agreement. It appears that one innovation by Steel Transport was the payment to some of the drivers of "supplemental" pay, also referred to as "loading and unloading" pay, which was not required by the Agreement. Respondent's Exhibit 4, relating to employee grievances over the methods of pay, indicates that there were three methods by which the drivers were paid, the first of which con- forms to the Agreement: (1) "23% and 3% and no supple- mental"; (2) "23% and vacations and holidays and sup- plemental"; and (3) "21% and vacations and holidays and supplemental." It is clear that even prior to the time that the Respond- ent took over the operations involved, the drivers were dissatisfied with the pay practices that had been instituted and had complained to the Union about the matter. Donald Sawocha, secretary-treasurer of the Union, ARTIM TRANSPORTATION, INC. 797 testified that this issue was not taken up through the grievance procedure because, prior to November 1965, the men had never filed a grievance concerning this problem.3 3. The November 1965 strike In November 1965, there was a strike of Respondent's drivers, not authorized by the Union, because the men were dissatisfied with the methods of pay and had discovered that no hearing had been scheduled on their complaints. Sawocha testified that, "The strike lasted two days. I finally got them to go back to work after I told them I would bypass our local grievance board, write their grievance and submit it to the Central States Board which met here in Chicago in December and let the Cen- tral States Board make a decision on this case." Among the leaders of the group which engaged in the November strike were employees Barbee, Ravenscroft, and Colbert. Artim identified them as having complained to him prior to the strike about the methods of pay. At the end of the strike the men selected a group headed by Bar- bee to speak for them at the December hearing and they did so. The hearing was held in Chicago, before a commit- tee referred to in the Agreement (articles 42 and 43) as the "Joint Steel and Special Commodity Committee," composed equally of employers and union representa- tives who are parties to the Agreement. The Joint Steel Committee decided that "all drivers hired after March 31, 1965, will receive 23% plus 3%. All drivers in the employ of the company prior to that date will receive 23% plus 3%, plus two hours where previ- ously paid.4 Retroactivity shall apply 30-days prior to the filing of the grievance." As a result a number of drivers were raised to 23 percent, and a number of them, includ- ing Barbee and Ravenscroft, received substantial backpay awards. Although some of the employee witnesses , including Barbee, indicated that they were satisfied with what they received personally, there was widespread dissatisfaction over the fact that the decision provided for more than one method of payment. The position of the men was that all the men should be paid on the same basis , that is, the highest standard that the Respondent was paying to any driver.5 Immediately after the award, Barbee and others made a protest to James Hoffa, the president of the parent organization with which the Union is affiliated. Com- plaints were also made to Ralph Artim, particularly by driver Ravenscroft. As a result of these complaints, Respondent scheduled a meeting of its drivers on January 9, 1966 , attended only by members of management and the men . The accounts of the principal witnesses with respect to the events of this meeting, Respondent's vice president, Ralph Artim, and driver Morris Barbee, do not greatly differ . The main topic of discussion was the continuance of two methods of pay for the drivers . The men vigorously argued that all should receive loading and unloading pay. According to Barbee, Ralph Artim, Senior, who was present, indicated that he was willing to meet and make a compromise offer on the point. This is not controverted and is credited. The men also claimed that they were entitled to either 23 per- cent or "miles and hours," whichever was the greatest, obviously referring to the alternative method of computa- tion of pay which seems to be provided by the contract clause quoted above. Ralph Artim testified that he advised the men that although the Respondent was itself dissatisfied with the result of the December hearing, it had committed itself to abide by the award and would do so. Artim argued that the men were likewise committed to accept the award. Artim stated that the alternative contention of the men for "miles and hours" was ridiculous, apparently contending that it was precluded by the award of the Joint Steel Com- mittee, and further suggested to the employees that they file a grievance on the point. According to Barbee, about at the point that Respond- ent indicated that it was inclined to compromise the loading and unloading pay issue, Respondent suggested that Barbee, Ravenscroft, and Colbert go with them to meet with the Union, and that they would arrange the meeting. Artim denied that this was suggested by Respondent, and stated that he acquiesced in it only reluctantly because none of the other men would speak up for themselves. Barbee's testimony is credited.6 The record does not indicate that any further action was taken as a result of this meeting. 8 It is contended in General Counsel's brief that the Trial Examiner erred in rejecting General Counsel 's offer of proof, made prior to the above-noted testimony, to the effect that the men, prior to November 1965, had difficulty with the Union over the pay practices , that "they could not get a grievance filed by them to resolve this matter," and that the men tried in various other ways to get a hearing on the issue before strik- ing in November 1965 Based on the pleadings and the positions outlined at the hearing, the Trial Examiner advised the parties that he considered the issue of whether the men were justified in being dissatisfied with the Union prior to November 1965, too remote and extraneous to the issues to be tried in this proceeding. After further consideration, the Trial Ex- aminer is satisfied that this ruling should be reaffirmed . Whether some of this material might have been admissable as an attack upon Sawocha's testimony on behalf of the Respondent is not before me because the General Counsel did not reoffer it for that purpose 4 The testimony of Artim and Barbee make it clear that the "two hours" refers to loading and unloading pay where previously paid. 5 This was based on article 6 of the Agreement requiring "Maintenance of Standards " 6 Artim exhibited a tendency to imprecise and overemphasized testimony , obviously in support of Respondent 's legal positions. Thus, with respect to the Respondent's contention that Barbee and others were acting in self-interest and in derogation of the Union Artim first testified, in response to a leading question , that about February 1, he was not aware of any employee committee . Later, Artim admitted he was aware of a committee composed of drivers Barbee , Colbert, Walker, and Ravens- croft , but insisted that they were "self-supported," because "there was to the union and discuss these problems," to which he stated the Re- spondent acquiesced because "none of the other drivers would speak for themselves." This and other evidence is convincing that Barbee and a few mittee was set up composed of Morris Barbee and- I don't know- there was four or five of them, that would represent the men at a grievance hear- ing some time in December . . . " He also later agreed that at the January drivers' meeting, " . . it was discussed that Mr Barbee and Mr Colbert and Mr Ravenscroft be appointed as spokesmen to go with the company to the union and discuss these problems." to which he stated the Respond- ent acquiesced because "none of the other drivers would speak for them- selves " This and other evidence is convincing that Barbee and a few other men were the recognized spokesmen for this group of drivers, and this was well known to the Respondent. In the same vein , Artim was early led to testify that it was not his "practice to deal directly with employees in the absence of a union representative ," a statement clearly at variance with Respondent's acts in setting up the January drivers ' meeting, without a Union representative present Artim was not impressive as a witness, a considerable part of his testimony was adduced through leading questions, and the Trial Examiner has relied on his testimony only where the record as a whole appeared to support it. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The "runaround" grievances The record shows that there were at least two other grievances filed on behalf of the drivers which were taken through the grievance procedure. One of these, filed in October 1965, referred to as the "runaround" grievances, involved claims by drivers Barbee, Ravenscroft, Walker, and Colbert for compensation because the Respondent had dispatched former Artim trucks out of the Detroit terminal (previously operated by Steel Transport) prior to dispatch of these four men who had been part of the Steel Transport operation. That is, it was asserted Respondent had run four Artim drivers "around" the complainants, causing them to lose work for which they were available. Respondent took the position that this was done on the basis of its understanding that the Union had no objection to the merging, or dovetailing, of the former Steel Transport and the Artim over-the-road divi- sions. The men, however, claimed that no dovetailing provision had been agreed to. A hearing was held on these runaround grievances be- fore the Calumet Joint Area Committee, a "Joint City Road Committee," composed of employer and union representatives (articles 42 and 43 of the Agreement), on January 20, 1966, and the Calumet Committee orally an- nounced a decision that day sustaining the grievances. Written confirmation was received by the parties on or about February 1, 1966. Because of Artim's illness on January 20, Respond- ent's representatives attending the hearing had been in- structed to ask the Calumet Committee for a postpone- ment so that Artim could be present and bring a man in from the Detroit terminal to testify. The Committee de- nied this request, proceeded with the hearing, and later, as had been noted, rendered an oral decision sustaining the grievances. The Respondent's representatives then requested the Committee for another hearing. This was denied, Respondent being informed that the decision was final and binding.7 These matters were reported to Ralph Artim the next day. Artim testified that after he received the decision of the Committee in writing, on February 1, 1966, he called Donald Sawocha. In this conversation, in effect, Artim requested Sawocha's cooperation in securing a rehearing of the runaround matter. Artim reminded him that "we had made a request at the hearing ... that we wanted a rehearing on this particular matter because it involved an operations function which needed to be cleared up," and argued that they had a meeting in October on the issue of dovetailing the two operations to avoid this problem and stated, "Now you render a decision like this. It is only fair to have a rehearing on this to present more evidence." Artim's testimony as to Sawocha's reply varied con- 7 There is a conflict between the testimony of Respondent's witness Biggerstaff, a member of the Committee, and Colbert, who testified for the General Counsel, as to whether this was stated by a representative of the employers or of the Union on the Committee. In the absence of a showing that any Committee member objected to the statement, the Trial Ex- aminer finds, as Barbee testified, that it was a denial by the Committee. In some of the testimony it is stated that the request was for an "appeal." The testimony of Artim and Biggerstaff refer to it as a request for "rehear- ing," although Biggerstaff also agreed that the request was for an "ap- peal." On the whole record it is found that the Committee, by its answer intended to convey the message that their decision was final and no further proceedings were warranted. The testimony of Biggerstaff, in response to leading questions, that the decision "would not be final and binding until such time as no request for rehearing [wasl made," and that siderably. However, in accordance with Sawocha's testimony, which is probably the more accurate version on this point, the latter merely told Artim to put his request in writing. Respondent, however, did not make a written request for a rehearing of the matter before the Committee. 5. Events immediately preceding the strike of February 14, 1966 After January 20, and prior to February 14, several inquiries concerning payment of the runaround awards were made by the drivers to Bart Linder, treasurer of the Respondent, and the man with whom the Steel Transport drivers had been accustomed to deal on these matters. Donald Walker, one of the drivers involved, asked Linder a number of times when Respondent was going to pay the awards. He states that at first Linder said he couldn't pay it because he didn't have "legal verification" of the awards, and then later said, that "they were not going to pay it and that they had a different interpretation on it, and they weren't going to pay it." This latter conversation was corroborated by James McCoy, a driver who was present at the time. Barbee also asked Linder about the runaround award prior to February 14, at which Linder told him that Linder did not have any information on the matter at that time. Originally, when asked about conversations with Walker on this matter, Linder stated that he had no recol- lection of such a discussion. Later, he testified concerning these inquiries involving payment of the awards: "First of all I was approached several times prior to receiving the written award and I advised the fellows at the time, I think, this was Mr. Walker and I believe Mr. Colbert and Mr. Ravenscroft -I don't think Mr. Barbee asked me - but the three I told I did not have anything in writing.... After February 1, I was approached probably two or three times ... I got in contact with Mr. Artim who was also in touch with the local union or at least as I recall he had been talking to the union about this specific situation in Detroit, and I told them that this would be handled in a few days." In response to direct and suggestive questions, Linder denied that he had told these em- ployees Respondent was not going to pay the awards.8 Obviously, the major conflict between the witnesses concerns whether Linder told Walker in McCoy's presence that, with respect to the award, the Respondent had a different interpretation of the matter and would not pay the award. Upon consideration of the whole record, and upon the evaluation of the witnesses and their testimony as a whole, the Trial Examiner believes that the version given by Walker and McCoy more accurately expresses the position of the Respondent conveyed to there was no vote rendered on the request for an "appeal," is not credited, as inconsistent with the findings made and with other credited testimony of Biggerstaff With respect to the latter point, since Respondent's grounds for reconsideration were the same as those advanced in support of its request for postponement, the Committee clearly had voted on and rejected Respondent's grounds for rehearing the matter. S Upon a direct query, Linder first denied any refusal to pay, later testified: Q. Is it your testimony that you never at any time told either Mr. Colbert or Mr. Barbee, "We are not going to pay it"'? A. Never once, no, sir Q. Is it your testimony that you never at any time told Mr Walker that, "We are not going to pay it"9 A. That is correct. ARTIM TRANSPORTATION, INC. 799 them by Linder. The record shows clearly that Respond- ent strongly opposed paying the awards, which it con- sidered "unfair," not because of the sums involved, which were small, but because the payment was inconsistent with Respondent's position that the two divisions had been dovetailed, and therefore no runarounds occurred, and also because the decision might affect future opera- tions. This, unquestionably, was the attitude expressed to the men by Linder. On Thursday, February 10, Respondent distributed copies of the Calumet Committee's written award to Bar- bee, Walker, Ravenscroft, and Colbert with a notation that "This matter has been held in suspense pending clarification of interpretation of the run-around as it ap- plied to Detroit terminal. You will be notified as soon as possible concerning same." According to the testimony of Logan Crider, one of Respondent's drivers, which is credited, this notice was also posted on Respondent's bul- letin board.9 According to Linder, the notice was prepared and distributed in response to the inquiries as to what the Respondent was going to do about the awards. This notice was widely discussed among the men between Thursday and the following Monday evening. At the regular meeting of the Union held the evening of Friday, February 11 , Barbee and Ravenscroft asked how the Respondent could suspend decision that had been handed down. They were informed by the president of the Union that "nobody had the right to go against the deci- sion of their board." When Barbee and Ravenscroft asked if the Union was going to take care of the matter, Andrew Sawocha, an agent of the Union , said that he was meeting with Artim the next day and he would take care of the matter. The record does now show what, if any, action was taken by Andrew Sawocha on this matter. Ralph Artim testified that he was not contacted by any representative of the Union following the January 20 award regarding the payment of the grievances involved. Donald Sawocha testified that , at some unspecified time, Respondent was ordered to pay the awards. At noon on Monday, February 14, Ravenscroft spoke to Linder with respect to payment of his runaround award. Their versions of the conversation are only slightly at variance. It is clear that Linder declined to pay the award, as Ravenscroft desired, and when asked for the reason, told Ravenscroft to call the Union hall. How- ever, when Ravenscroft called the hall, he found that neither Donald nor Andrew Sawocha was there, and had to leave to deliver the load on his truck without receiving any information. Barbee also called the Union hall for in- formation about the matter, probably on the same day. Barbee testified that an unidentified business agent told him that "it hadn't been taken care of." 6. The events of the evening of February 14 Beginning about 9 p.m., on Monday, February 14, the former Steel Transport drivers engaged in a work stop- page. Nevertheless, the drivers whose trucks were loaded proceeded to deliver their loads and those who were out of town appear to have returned their trucks to the ter- minal thereafter. Drivers whose trucks were not loaded, however, refused to accept dispatch of their trucks that evening. Thereafter this stoppage grew to the point that it included all the drivers, including the former Artim drivers, who, according to Ralph Artim, the Respondent had not expected to go out.10 Linder was advised of the situation through a telephone call to his home from the dispatcher at the terminal , and thereafter went to the ter- minal where he had a rather highly charged confrontation with a number of the drivers. The Respondent contends that the conduct and statements of the drivers that even- ing supports its position that the strike was caused by the employees' dissatisfaction with the December pay award rather than the Respondent's failure to pay or agree to pay the runaround awards. The drivers' testimony was to the contrary. Certainly, Respondent's failure to pay the runaround awards was a substantial topic of discussion among the men, and between Linder and the men, that evening. The testimony of Barbee and drivers Crider and Williams, who were present at the terminal that evening , is to the ef- fect that most of the discussion concerned this issue. Crider and Williams recalled that Barbee had Respon- dent's notice with him that night and used it in discussing the matter with the men. Barbee and Crider testified that Barbee asked Linder if the Respondent was going to pay the runaround and offered to work if Linder would agree to pay it, to which Linder replied that they had the Respondent's notice, that the runaround was not going to be paid, and if they had any further questions, they should go to see their Union. Barbee, however, admitted that other grievances were raised with Linder that evening, in- cluding the desire of the men to be paid for loading and unloading. On his part, although Linder tended to minimize the subject, his testimony also indicates that the runaround grievances were discussed in considerable detail. When first called as a witness, by the General Counsel, Linder readily admitted that during the conversations that even- ing, Barbee had asked him about payment of his ru- naround award. In later testimony, he further acknowledged that reference was made during the discus- sion to the Respondent's notice suspending payment, and that when Barbee had complained to him, "How come we have to abide by all'hearing decisions and the company does not," Linder responded- A. I told Mr. Barbee -again, I say this meeting lasted 30 to 45 minutes, there was quite a lot said; but as I best recall, I mentioned to him that this thing was like-like this document here indicates, was being held in suspense , not suspended, waiting for certain clarifications involving the Detroit run- around, No. 1; that Mr. Barbee was working for Steel Transportation; that the company was being - his pay check was coming from all them people. No. 2, the people he claimed ran around him, their pay checks also came from the Artim people. We are trying to get some clarification not in con- nection with these four but future problems. I t 9 Respondent's vice president , Artlm, first testified that the notice had been posted, and later changed that testimony. The notice may well have been put up without his knowledge 10 Artim testified that the Respondent directly employed about 60 drivers in over-the-road operations , and that at one point the walkout in- cluded about 80 employees. Artim stated that all 60 over-the-road drivers were discharged following the work stoppage 11 It does not appear that Linder or anyone else ever told the men how the Respondent expected to obtain the desired clarification Barbee testified that Linder stated that Rspondent had been in contact with its at- torney, and denied that he was told that the Rspondent was seeking a rehearing of the runaround matter 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to Linder, however, the main thrust of the statements made by Barbee and the men that evening was to the effect that they had gotten a "raw deal" at the hear- ing in Chicago in December, and that the Union wasn't "in their corner," and wasn't trying to help them. Linder stated that he was unable to persuade the men that they ought to take this matter up with their Union officials, "and handle it in the proper manner [as] these things had been handled once before," for "they had got a raw deal out of it." Linder denied that Barbee said to him that the men were not going to work unless the runaround awards were paid immediately, and testified to the effect that Barbee insisted that he would work only if paid for his loading time. 12 After careful consideration of the above, and the record as a whole, the testimony of Barbee, as supported by Crider and Williams, with respect to the discussions among the men and with Linder is credited, and Linder's testimony inconsistent therewith is not credited. It is clear that the work stoppage of February 14 was precipitated by the Respondent's suspension of payment of the runaround awards. The circumstances as well as the testimony of the drivers, Barbee, Crider, Williams, Walker, McCoy, and Colbert, are convincing that this was either the sole or a substantial reason for participa- tion in the strike. It would be incredible that this was not made plain to Linder during their discussions. In fact, his own testimony shows that it was. Undoubtedly, during the course of that tense and heated confrontation, in which Linder sought to persuade Barbee and the men not to stop work, and referred them to the Union for further information and assistance on the runaround grievances, other grievances, including their dissatisfaction with the Union, rose to the surface and were vigorously expressed as part of the exchange among them. 7. The discharges The Respondent contends that article 43 of the Agree- ment supports the discharges of drivers involved in the work stoppage. The General Counsel contends that, in the circumstances here involved, Respondent had for- feited the benefits of that article of the Agreement. Article 43, Grievance Machinery and Union Liability, provides, in pertinent part, that "there shall be no strike .. without first using all possible means of settlement, as provided in this Agreement, of any controversy which might arise." Failing adjustment by the employer and local union involved, the matter may go to a Joint City Road Committee whose decision, by majority vote, is "final and binding on both parties " Deadlocked deci- sions of a Joint City Committee, and some other situa- tions, may go to the Joint Steel and Special Commodity Committee. The latter Committee may decide, when it is deadlocked, to submit issues to an impartial umpire. "Otherwise, either party shall be permitted all legal or economic recourse." Subsection 1(d) of article 43 provides, in part, that "failure to comply with any final decision withdraws the benefits of Article 43." Subsection 1(e) states, in part, that "In the event of strikes, work stoppages, or other ac- tivities which are permitted in case of deadlock, default, or failure to comply with majority decisions, no in- terpretation of this Agreement by any tribunal shall be binding upon the Union or affect the legality of [sic] law- fulness of the strike unless the Union stipulates to be bound by such interpretation by mutual agreement." Section 2 of article 43, which immunizes the Union from liability for unauthorized strikes, gives the employer sole right of discipline for unauthorized work stoppages, with the proviso that the employer may not discharge em- ployees involved in such stoppages within the first 24 hours, but may do so thereafter. The Respondent sent telegrams to the drivers engaged in the work stoppage, within 24 hours, setting times for their return to work. Thereafter, a telegram was sent discharging those who did not return, with a letter con- firming the discharge As previously noted, Vice President Artim testified that Respondent discharged all of its directly employed over-the-road drivers as result of the stoppage. However, a number of drivers returned to work while the strike was still current.13 On or about March 15, 1966, the striking drivers, in a group, offered to return to work.14 The fol- lowing morning, the Respondent reinstated some of the drivers and refused to reinstate others. The Union, thereafter, refused to process grievances on behalf of these men on the grounds that since the strike was unauthorized, the discharges were permitted by the Agreement, and that upon settlement of the unauthorized work stoppage, the Respondent had the right to rehire whom they chose. The drivers appealed to the Joint Council with which the Union was affiliated, and the Joint Council directed the Union to process the discharge grievances before the Joint Steel Committee. However, after hearing the Respondent's representative, and ascer- taining from the union representative that the work stop- page was unauthorized, the Joint Steel Committee took no other evidence before voting not to hear these grievances. 8. Analysis and conclusions The work stoppage which began on February 14 was clearly triggered by Respondent's notice of February 10, "suspending" payment of the runaround awards which had been handed down by the Calumet Committee acting under the grievance procedure of the Agreement. While, ie At another point in his testimony, Linder stated that prior to the time he went to the terminal that evening, Barbee told him on the phone that the men had gotten a raw deal at the December hearing and "they were not going to run the trucks until such time as these things were straightened out " However, when Linder earlier testified about this phone conversation, he did not advert to the material quoted, and, at that time, denied that Barbee had made any suggestion for resolving the dispute during their phone conversation i3 Some returned after a meeting between the Respondent and the Union at the Union hall to discuss the strike on or about February 18, 1966 According to Donald Sawocha and Artim. the drivers present did not bring up the issue of the runaround grievances at this meeting How- ever, it appears that the men present were handpicked by the Respondent. with the drivers involved in the runaround grievance being excluded At a subsequent Union meeting on February 22 to discuss the strike, which was attended by Barbee, he testified that both the runaround grievances and pay for loading and unloading were discussed before the meeting broke up abruptly is This followed a decision of the Joint Steel Committee on March 15, 1966, refusing to grant a new hearing on a grievance based on the Respon- dent's methods of pay The drivers claiming " miles and hours" were in- formed that this would require the filing of a separate grievance under the Agreement Respondent had previously, in late February, paid the run- around awards ARTIM TRANSPORTATION, INC. concurrently, other pent-up and deeply felt grievances bubbled to the surface, there is no substantial basis on this record upon which to hold that the claim for payment of the runaround awards was merely a pretext for a strike over other issues as Respondent contends. Indeed, the evidence indicates that the principal, if not the sole, argu- ment used by the grievants to secure support from the other men for the stoppage was the protection of the grie- vants' right to payment of the awards granted under the grievance procedure. On the record in this case, in fact, there is no reason to believe that there would have been a work stoppage ex- cept for Respondent's failure to pay the runaround awards. Thus, the men did not strike from December 14, 1965, until February 14, although their dissatisfaction with the December pay award was vigorously evident from the outset. Indeed, in January, the drivers had secured indication of possible concessions from the Respondent on the subject and had given evidence of their willingness to adjust their problems through negotia- tion. This is further confirmed by their acquiescence in the Joint Steel Committee's refusal in March to rehear the grievance over methods of pay. The Trial Examiner is convinced and finds that but for the Respondent's re- sistance to the payment of the runaround awards, the work stoppage here involved would not have occurred. Cf. N.L.R.B. v. The Barrett Company, 135 F.2d 959 (C.A. 7, 1943), at 961-962; Paul Biazevich, et al., dlbla MV Liberator, 136 NLRB 13. However, the General Counsel's argument, relying on San Juan Lumber Company, 154 NLRB 1153, that such a work stoppage was justified because of the actions of the Respondent, even if the no-strike clause in the Agree- ment were effective and subsisting, is not accepted. The situation in San Juan is clearly distinguishable from that involved here. However questionable the actions of the Respondent with regard to the runaround awards, they certainly do not approach that degree of seriousness which would justify a work stoppage in violation of a sub- sisting, valid prohibition against such activity in a current collective-bargaining agreement. See Arlan's Department Store of Michigan, Inc., 133 NLRB 802, 807-808. The General Counsel's argument that the provisions of article 43 of the Agreement were inapplicable to the situation here presented, however, stands on firmer ground. In the Agreement, the parties consented to only a limited, and not an absolute, prohibition of the right to resort to economic self-help. Thus, where there is no final and binding resolution of a pending controversy through use of the grievance procedure, or where there is a "failure" to comply with a final and binding decision of one of the joint committees set up as part of the grievance procedure, strikes are expressly permitted by the con- tract. While the Agreement does not define "failure" in this context, it is clear that the term is used in its normal sense, and does not require that showing of willfulness which is encompassed by the term "refusal." Thus, in subparagraph 1(d) of article 43, it is noted that where the parties meant "refusal," they used that specific word. Webster's Seventh Collegiate Dictionary (G. & C. Merriam, 1963) gives as the first definition of the term "failure": "1: ommission of occurence or performance; specif.• a failing to perform a duty or expected action." On this record, it is found that Respondent's actions in resisting payment of the runaround awards constituted a "failure to comply" with the final and binding decisions 801 of the Calumet Committee, within the meaning of sub- paragraphs 1(d) and 1(e) of article 43, thereby permitting "strikes, work stoppages or other activities," and withdrawing from Respondent any benefits of article 43 of the Agreement. Not only was the January 20 decision of the Calumet Committee final and binding under the terms of the Agreement, but this was affirmed to the parties at the hearing by the Committee. There is no con- tention that the awards were incomplete or required more than a mere mechanical calculation of the amounts due. See Northern Crate & Lumber Company, 105 NLRB 218, 233. Indeed, it was conceded that Respondent's re- sistance to payment of the awards was not based upon any problems involved in calculating the amounts due to the men. Respondent's claim that it was not in default within the meaning of the Agreement because it was contemplating a request for a hearing is not persuasive. Assuming it had the right to ask for a rehearing, it never did so in the form required. Indeed, Respondent knew that the very grounds upon which it allegedly intended to seek a rehearing had been presented to the Calumet Committee as grounds for postponing the original hearing and had been rejected. It is further significant that Respondent at no time advised the drivers, whose acquiescence was certainly to be desired, that the basis for "suspending" the payment of the awards was its intention to obtain a rehearing of the dispute. On the evidence it is much more logical to con- clude that the Respondent did not so much expect to secure the "clarification" it desired from the Calumet Committee, which had already decided against it, as by resort to other means, which apparently produced the desired results. It is therefore found that in the circumstances of this case the provisions of article 43 of the Agreement were not applicable to the February 14 work stoppage, and that Respondent is stopped from asserting the benefits of that article of the Agreement. See Deaton Truck Line, Inc., 152 NLRB 1531; cf. Mineweld Company Division ofRasco, Inc., 127 NLRB 1616. However, the Respondent vigorously contends that even in the absence of any contractual prohibition, in the context of this case, the work stoppage of February 14 was an unprotected strike since it was unauthorized by, and allegedly in derogation of the representative capacity of the Union, citing N.L.R.B. v. Sunbeam Lighting Com- pany, Inc., 318 F.2d 661 (C.A. 7, 1963), and N.L.R.B. v. R. C. Can Company, 328 F.2d 974 (C.A. 5, 1964). In Sunbeam, where there was a work stoppage by a minority of the employees represented by a union in dissatisfaction over the last bargaining offer made to the union, the court held (318 F.2d at 662) that "the action of the minority of the employees ... was not protected ac- tivity but on the contrary constituted interference with bona fide bargaining activity in progress between the Company and the employees' certified representative." In R. C. Can, on the other hand, the court held that a work stoppage by some employees was a protected ac- tivity, where it was for the purpose of compelling their employer, who had been avoiding meeting with their bar- gaining representative, to meet for the purpose of collec- tive bargaining, and where the strike was afterward adopted by the union there involved. The court, balancing the conflicting interests involved, formulated applicable standards to be applied, in the following language (328 F.2d at 979, citations omitted): 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ... is the action of the individuals or a small group in criticism of, or in opposition to, the policies and ac- tions theretofore taken by the organization? Or, to the contrary, is it more nearly in support of the things which the union is trying to accomplish? If it is the former, then such divisive, dissident action is not protected. . . . If, on the other hand, it seeks to generate support for and an acceptance of the de- mands put forth by the union, it is protected so long, of course , as the means used do not involve a dis- agreement with, repudiation or criticism of, a policy or decision previously taken by the union such as, for example, a no strike pledge, a cooling off period, or the like during negotiation. It is clear, however, that the February work stoppage was not a minority action, but, in fact, was supported by all of the over-the-road drivers directly employed by the Respondent. Nor was it, within the sense of the standards set forth by the court in R. C. Can, in repudiation or criti- cism of a policy or decision previously taken by the Union. As has been found, the strike was in support of the grievance provisions of the Agreement and not in violation of it. According to the uncontradicted testimony of Barbee, prior to the strike, he and other members of the Union were informed by officers of the Union that the Respondent had no right to withhold payment of the run- around awards. Although Vice President Artim had a prior informal conversation with Donald Sawocha con- cerning the possibility of asking the Calumet Committee for a rehearing, this was never communicated to the em- ployees or to other union officials by Donald Sawocha or the Respondent. Indeed, the Respondent never filed a request for rehearing as Sawocha suggested. Nor does it appear that the employees were aware of the informal and unpublished practice of the Calumet Committee in per- mitting written requests for rehearing within a month of the original decision. In fact, the employees were justified, on the basis of the statements made at the original hearing, in concluding that no such procedure would be permitted in this case. In these circumstances , the language of the court in Western Contracting Corp. v. N.L.R.B., 322 F.2d 893, 899 (C.A, 10, 1963), seems particularly appropriate to the issues here involved: "The employees were entitled to engage in concerted action so long as such action was not in violation of their contract or in derogation of the position taken by their bargaining agent. The action here was clearly in support of rather than in derogation of the union's position. The single factor that the employee ac- tion had a spontaneous origin with individual employees is insufficient to bring the case within the principle enun- ciated in [Sunbeam and other similar decisions involving unprotected strikes]." For the reasons stated , and upon the entire record in 1; In coming to the conclusion that the discharges violated the Act, con- sideration has been given to the fact that the Joint Steel Committee refused to consider the discharge grievances under the Agreement. How- ever, the Committee, which was composed solely of union and employer representatives, with no impartial third party, listened only to the Re- spondent and a representative of the Union, which had already decided that the grievances were without merit. Nor does it appear that the Committee ever properly considered the critical issue involved here, i e., whether the Agreement was rendered inapplicable to the walkout because of the Respondent's actions. For these reasons no weight has been given to the decision of the Committee. Cf. D C International, this matter, it is found that the Respondent , by discharg- ing its employees on February 16, 1966 , because they had engaged in the work stoppage beginning on February 14, 1966, interfered with , restrained, and coerced its em- ployees in the exercise of their rights under Section 7 of the Act, and thereby violated Section 8(a)(1) of the Act. Inasmuch as there would be no essential difference in the remedy proposed, the Trial Examiner finds it unnecessa- ry to consider whether this conduct also violates Section 8(a)(3) of the Act as alleged by the General Counsel.15 CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The 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 affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that the Respondent engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative to effec- tuate the policies of the Act. It having been found that the Respondent discharged all of the employees who engaged in the strike beginning on February 14, 1966, in violation of the Act, it will be recommended that the Respondent offer immediate and full reinstatement to their former or substantially equivalent positions to all such employees who have not previously been offered reinstatement , and specifically the 37 employees named in the Recommended Order hereinafter, without prejudice to their seniority and other rights and privileges , and make them whole for any loss of earnings they may have suffered by reason of Respond- ent's discharge and refusal to reinstate them, by pay- ment to them of a sum of money equal to that which they would have earned as wages or pay from the date of their discharge to the date of offer of reinstatement, and in a manner consistent with Board policy set forth in F. W. Woolworth Company, 90 NLRB 289. Interest on backpay shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716.t6 It will also be recommended that the Respondent preserve and make available to the Board , upon request, payroll and other records to facilitate the computation of backpay. Inc, 162 NLRB 1383. 16 The amended complaint names 39 persons, together with others unamed, as having engaged in the February 14 work stoppage . Thirty- four are stipulated to have been discharged by letter dated February 16, 1966. There is evidence that three others , Ralph Cadawallader, William Cook, and William Roll, participated in the strike. Robert Williams (not to be confused with Robert E. Williams ) and Daniel Keesee, named in the complaint, were not identified in the record. The record also indicates that a number of employees named in the complaint have been reinstated by the Respondent. ARTIM TRANSPORTATION, INC. 803 RECOMMENDED ORDER Upon the basis of the above findings of fact and conclu- sions of law, and upon the entire record in this case, it is recommended that Respondent, Artim Transportation, Inc., Hammond, Indiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with the rights of employees to engage in protected work stoppages or other protected concerted activities by discharging, refusing to reinstate, or other- wise discriminating against employees in regard to their hire, or tenure of employment, or any term or condition of employment. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which will ef- fectuate the purposes of the Act: (a) Offer immediate and full reinstatement to their former or substantially equivalent positions to all em- ployees discharged for participation in the work stoppage beginning on February 14, 1966, who have not previ- ously been offered reinstatement, and specifically the em- ployees named below, and make them whole for any loss of earnings they may have suffered by reason of Re- spondent's discharge and refusal to reinstate them, in accordance with the provisions of the section entitled "The Remedy," above: Walter G. Babovac Williard Herrill Morris Barbee Harold Hooten Grover Bazzel Robert Joins Robert Berge Al Labs Robert E. Bowers James McCoy E. Buffington Thurman McGee James Butts Roy Nagel Ralph L. Cadawallader William Pilmore Sequoyah Colbert James H. Rachou William Cook John H. Ravenscroft Kenneth R. Cornwall William Rinker Logan Crider Clarence Ritter Marvin R. Craig William Roll William Duvall Eugene Smith Carl A. Dicharo Jimmy E. Smith Robert Ford Robert Van Beek Floyd H. Fultz Donald E. Walker Peter Griffin Robert E. Williams Melvin Heintz (b) Notify any of the above-named employees serving in the Armed Forces of their right to reinstatement upon application in accordance with the Selective Service Act and the Universal Military and Service Act, as amended, after discharge from the Armed Forces. (c) Post at its terminal at which over-the-road drivers are employed, copies of the attached notice marked "Ap- pendix A."17 Copies of the said notice, to be furnished by the Regional Director for Region 13, shall, after being duly signed by an authorized representative of Respond- ent, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notice is not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 13, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith.18 17 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order." 18 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify the Regional Director for Region 13, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT discharge, or otherwise interfere with, restrain, or coerce, our employees because they engage in work stoppages or other concerted activi- ties protected by law and not in violation of a collec- tive-bargaining contract covering the employment of such employees. WE WILL offer immediate and full reinstatement to their former or substantially equivalent positions to all employees discharged for participation in the work stoppage beginning February 14, 1966, who have not previously been offered reinstatement, and specifically the employees named below, and make them whole for any loss of earnings they may have suffered by reason of their discharge until the time of our offer to reinstate them: Walter G. Babovac Willard Herrill Morris Barbee Harold Hooten Grover Bazzel Robert Joins Robert Berge Al Labs Robert E. Bowers James McCoy E. Buffington Thurman McGee James Butts Roy Nagel Ralph L. Cadawallader William Pilmore Sequoyah Colbert James H. Rachou William Cook John H. Ravenscroft Kenneth R. Cornwall William Rinker Logan Crider Clarence Ritter Marvin R. Craig William Roll William Duvall Eugene Smith Carl A. Dicharo Jimmy E. Smith Robert Ford Robert Van Beek Floyd H. Fultz Donald E. Walker Peter Griffin Robert E. Williams Melvin Heintz ARTIM TRANSPORTATION SYSTEM, INC. (Employer) Dated By (Representative) (Title) NOTE: We will notify any of the above-named em- ployees serving in the Armed Forces of their right to full reinstatement upon application in accordance with the 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Selective Service Act and the Universal Military Train- If employees have any question concerning this notice ing and Service Act , as amended, after discharge from the or compliance with its provisions, they may communicate Armed Forces. directly with the Board's Regional Office, 881 U.S. This notice must remain posted for 60 consecutive Courthouse and Federal Office Building, 219 South days from the date of posting , and must not be altered, Dearborn Street, Chicago , Illinois 60604, Telephone defaced, or covered by any other material. 828-7570.