Insurance Workers International Union Local 60,

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Insurance Workers International Union, AFL-CIO, Local 60 (John Hancock Mutual Life Insurance Company) and Raymond James Ottomeyer, Jr. Case 14-CB-3296 May 25, 1978 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On March 17, 1977, Administrative Law Judge James L. Rose issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief, and Respondent filed an answering brief. 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. We agree with the Administrative Law Judge that Respondent did not violate Section 8(b)(l)(A) of the Act by threatening to discipline and actually initiat- ing intraunion disciplinary proceedings against cer- tain of its members because they refused to partici- pate in union-sponsored "lunch demonstrations." Our dissenting colleague, on the other hand, would find a violation based on her perception that the picketing in question constituted a violation of Re- spondent's no-strike and no-slowdown obligations arising out of the collective-bargaining agreement and, alternatively, on her position that the employees were insulated from union discipline because of their "apparently reasonable belief" that the activity was a violation of the contract. The Employer in this proceeding is an insurance carrier which employs a number of persons repre- sented by Respondent as sales agents. While there are no uniform standard business hours for these agents, they work on a commission basis between 50 and 75 hours per week as the business demands and their stamina permits. Each agent is expected to pick those times of the day when business calls or other work will be most productive, which for most agents is between the hours of 8 a.m. and 9 p.m. during the week as well as occasional weekends. Each agent is also permitted to select appropriate periods during the day for personal activities or to attend regular union meetings which the record discloses were held on certain afternoons during the week. Confronted with what they considered a unilateral change in working conditions relating to sales re- quirements. the International Union directed each of its locals, including Respondent herein, to engage in protest activity consisting of picketing during a 2- hour-a-day, 2-day-a-week period deemed most ap- propriate by the local. The locals were instructed not to disrupt the business activity of the Company, and to excuse members from picketing duty who had spe- cific assignments for the Company during the pe- riods of picketing. At the south St. Louis district of- fice, picketing occurred on each Tuesday and Thursday from 10:30 a.m. to 12:30 p.m. between March 18 and April 6, 1976. When several union members decided to return to work after the first day of picketing, however, Respondent initiated intraun- ion disciplinary proceedings, claiming that persons declining to participate in the demonstrations were not excused therefrom. One of these persons, who was subjected to the disciplinary procedures, filed charges with the Board, alleging that the Union had violated Section 8(b)(1)(A) of the Act. Union discipline is unlawful if it should violate some recognized public policy. N.L.R.B. v. Industrial Union of Marine & Shipbuilding Workers of America and its Local 22 [U.S. Lines], 391 U.S. 418 (1968); Local 138, International Union of Operating Engineers (Charles S. Skura), 148 NLRB 674 (1964). For exam- ple, a union violates the Act if it attempts to disci- pline a member for refusing to engage in unprotected activity. Thus, the determinative question here is whether the applicable collective-bargaining agree- ment between Respondent and the Employer pro- hibited the union-sponsored demonstrations, render- ing such activity unprotected.' However, since this case involves activity which is normally protected under the Act, any contract which is deemed to ren- der it unprotected must be "clear and unmistaka- ble." 2 Contrary to our dissenting colleague, who relies on the testimony of several agents that, but for the pick- eting, they would have engaged in company business during the period of the demonstrations, we do not find that Respondent's conduct was a slowdown The Administrative Law Judge found that the picketing was engaged in to protest the Employer's unilateral imposition of minimum sales quotas. Minimum standards had been discussed and expressly rejected by the Union during collective negotiations and the Union viewed the Employer's later unilateral action as a "double cross." Arguably. it was also a violation of Sec. 8(aX5) rendering any ,tnke activity by the employees protected irr- espective of the no-strike pledge made by Respondent. Mastro Plastics Corp. v. N I.R.B.. 350 U.S. 270 (19'56)L but cf. Arlan' Department Store of Michi- gan, Inc. 133 NLRB 802 (1961). In any event. since the case apparently was not litigated on this theory, are shall assume. arguendo, that the activity in question was purely economic activity -Unequivocal waiver may be found in contract language or in bargaining history. 236 NLRB No. 50 440 INSURANCE WORKERS INTL. UNION, LOCAL 60 within the meaning of the contract. The applicable provision in the agreement prohibits all strikes and slowdowns, slowdowns being defined as any "con- certed action by a group of Agents for the purpose of coercing the Company into granting their demands by the willful cessation or reduction of normal busi- ness activity." Citing bargaining history, the Admin- istrative Law Judge found that the no-strike and no- slowdown language was designed to preclude con- certed refusals by agents to attend company meetings or to report weekly sales. No evidence of either a refusal to attend company meetings 3 or a reduction in reported sales was presented or alleged by the General Counsel. To argue, as does our dis- senting colleague, that the no-strike clause prohibits any concerted activity occurring during the hours of 8 a.m. and 9 p.m., those hours when the agents con- cededly performed their selling duties, would be to infer a waiver by the Union far beyond the evident intent of the agreement. Moreover, at the very least, the clause is ambiguous and hence not "clear and unmistakable" with respect to these demonstrations, since, as the Administrative Law Judge specifically found, "the hours and amount of business activity vary between agents." 4 Furthermore, we disagree with our dissenting colleague's assertion that a union violates Section 8(b)(1)(A) of the Act if it seeks to discipline persons who refuse to engage in concerted activity because of "an apparently reasonable belief" that the activity is barred by the contract. A rule which immunizes union members from intraunion discipline under such circumstances is inconsistent with the principles announced by the Supreme Court in Scofield, et al. (Wisconsin Motor Corp.) v. N.L.R.B., 394 U.S. 423 (1969), and N.L.R.B. v. A4 Ilis-Chalmers Manufacturing CompanV, 388 U.S. 175 (1967). It is fundamental that when an individual union member insists on inter- preting the contract's no-strike clause differently from the union the member acts at his own peril. If the Board later finds that the concerted activity was unprotected, then no union discipline can follow, but where, as here, the concerted activity is protected, then the union can initiate disciplinary proceedings against the member without violating Section 8(b)(l)(A) of the Act.' So long as union discipline is 3 n fact, the record shows that Respondent scheduled its picketing so as not to interfere with company meetings. 4Although citing the dictionary definition of "normal" in support of her contention that the clause barred the activity in question, iour dissenting colleague apparently admits that "the contract language . . . is uncertain, unclear, and therefore ambiguous in meaning." 'Of course, where union rules and bIlaws contain no restraints on the resignation of members. a union mas not fine an ex-member who first re- signs from the union, then refuses to engage in concerted activity. N. i R B v. Granite State Joint Board. Terxtile iforkeris nion of Ameririwa Inrernaiional Paper Box- Machine Co.]. 409 U.S. 213 (1972). neither in derogation of a recognized public policy nor procedurally unfair, Congress has mandated that it is insulated from scrutiny by either the Board or the courts. We are of the view that the union's legiti- mate interest in maintaining the integrity of the strike and other forms of concerted activity outweighs a member's interest in avoiding potential discipline by the employer for engaging in unprotected activity by allegedly violating an ambiguous contract. For, we have long held that the conduct of employees, other- wise protected, becomes unprotected only where it is barred clearly and unmistakably by the collective agreement. Thus, unless the contract is unambigu- ous, union members are not presented with our colleague's hypothetical dilemma, and where it is un- ambiguous and the union nevertheless seeks to disci- pline those members who refuse to violate its provi- sions, we have no difficulty in finding that the union violated the Act. Finally, the dissent's approach would pose signigicant difficulties in administration since, by its nature. it involves an inquiry into the subjective states of mind of union members declining to participate in union-sponsored activity. 6 Accordingly, we agree with the Administrative Law Judge that Respondent did not violate Section 8(b)(l)(A) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dis- missed in its entirety. MEMBE R M RPH'Y. dissenting: I disagree with my colleagues' adoption of the Ad- ministrative Law Judge's Decision dismissing the complaint in its entirety. Unlike my colleagues, I would find that Respondent Local 60 violated Sec- tion 8(b)(1)(A) of the Act by threatening certain of its members with intraunion charges, and by holding a hearing based on such charges, because they re- fused to participate in authorized picketing against their employer, John Hancock Mutual Life Insur- ance Company (herein called the Employer), in the face of a broad contractual no-strike no-lockout pro- hibition.7 Thus, I also disagree with the Administra- 6 See, Atelston. Lnion Fines and Picket Lines The NI.RA and Union Disci- phnari Puer., 17 U C.i.A. L. Rev. 681, 756 11970). 'Art IV of the agreement. dealing with strikes, slowdowns. and lockouts, reads as follows: Although the parties recognize that so-called lockouts and strikes are practically unknown to the business and. in fact. are accepted as inimi- Continued 441 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive Law Judge's and my colleagues' finding, as not- ed, that the picketing by the district sales agents ev- ery Tuesday and Thursday between the hours of 10:30 a.m. and 12:30 p.m. was not a strike or "slow- down" as defined in the foregoing collective-bargain- ing agreement between the Employer and Respon- dent's parent organization (herein called the International). 8 The facts surrounding the picketing and Respon- dent's subsequent actions to discipline certain of its members, including the Charging Party, for failing to participate in such picketing, are not materially in dispute and are fully set forth in the attached Admin- istrative Law Judge's Decision. Briefly, they show that the International has a contract with the Em- ployer covering all of the Employer's district sales agents. This contract, effective from June 25, 1975, through June 28, 1978, contains the no-strike or no- slowdown provisions described above. Some 3 or 4 months after the foregoing contract was executed, the Employer sought to impose on the unit employ- ees a minimum sales requirement similar to the one which the parties, during their recently completed contract negotiations, had agreed not to impose. The International considered the Employer's action a "double cross" and, in February 1976. advised each local union and district office chairman that the In- ternational would undertake protest demonstrations. These demonstrations were to be in the form of pick- eting at each of the Employer's district offices for 2 hours a day on each of 2 days per week, timed to coincide with the contractually required report days when all agents are required to come to the office to report on their sales, etc. The International advised cal to the interests of the policy holders, during the term of this con- tract, the Company will not lockout any District Agents. and the Union. including all locals thereof. will neither cause. direct nor permit an) manager, officer, or representative. to engage, participate. or in ann way assist in a strike (or slowdown. No officer or representative of the Union or any local thereof, will authorize, approve. ratify, or condone any strike or slowdown. s A "slowdown" is defined in the same art. IV as follows: The term "slovdown" as used in this Article shall mean, but ntl ho way of limitation, concerted action by a group of Agents for the pur- pose of coercing the Company into granting their demands by the will- ful cessation or reduction of normal business activity. My colleagues assert that to read into this definition, as I would, a prohibi- tion against "any concerted activity during the hours of 8 a.m. and 9 p.m., those hours when the agents concededly performed their selling duties, would be to infer a waiver by the Union far beyond the evident intent of the agreement." But their position flies in the face of the plain language of the clause. specifically "by the willful cessation or reduction of normal hu.inevs activity lemphasis supplied]." Webster's Third New International Diction;lr (unabridged) defines "normal," inter alia, as "according to, constitutirg. or not deviating from an established norm, rule, or principle: conformed to a type, standard or regular pattern: . . . REGULAR . . . [working hours] ... Clearly their "normal business activity" refers to and encompases the working i.e, regular, hours of the agents--or as my colleagues put it "those hours when the agents . . .performed their selling duties," In short, the prohibition against a "slowdown" or work stoppage during the regul.ir workday was complete its locals that agents specifically scheduled to work on picketing days were to be excused from picketing duty. In the south St. Louis district, the only facility in- volved herein, the report days are Tuesdays and Thurs- days, with the agents normally being in the office from 8:30 or 9 a.m. until about 10:30 a.m. doing nec- essary paperwork. On Thursdays, there generally would be a sales meeting starting about 10 a.m. and lasting half an hour or so. Respondent decided to picket this facility from 10:30 a.m. until 12:30 p.m. on Tuesdays and Thursdays commencing March 18. Such picketing continued in this fashion until April 6. The Charging Party and eight other agents refused at one time or another to participate in the picketing, essentially because they believed that the picketing during the time they normally would be working constituted a slowdown and violated article IV of the contract. Respondent's district office committee brought charges against these employees for failing to join in the picketing without a proper excuse. A hearing on such charges was held on July 14, 1976. At the time of the hearing herein, the employees had not yet been advised as to the disposition of the charges against them. The Administrative Law Judge found that, without question, the picketing was concerted action by a group of agents for the purpose of coercing the Com- pany into rescinding its imposition of the minimum standards requirement. He also found that if the agents had not been engaged in the picketing activi- ties during the hours of 10:30 a.m. and 12:30 p.m. on Tuesdays and Thursdays, they would have been en- gaged in some activity involved in the business of selling life insurance for the Employer. And, indeed the employees who did not participate in the picket- ing testified that they worked during these periods. Notwithstanding the foregoing findings, the Admin- istrative Law Judge concluded that the picketing was not a "slowdown" as defined by the contract because it did not result in a "reduction in normal business activity." He reached this conclusion because district agents do not have set working hours and, in fact, work 10 to 12 hours a day as their stamina permits. I cannot subscribe to this logic. It is clear that, but for the picketing, the employees would have been en- gaged in normal sales activities. The fact that diligent agents may have made up for the time spent in pick- eting by working extra hours at night or on weekends does not justify a finding that the picketing did not interfere with or reduce normal business activity. I therefore would find that the picketing was in viola- tion of the parties' broad contractual no-strike provi- sion. Since picketing in violation of a no-strike clause 442 INSURANCE WORKERS INTL. UNION, LOCAL, 60 is not protected by Section 7 of the Act, it follows that Respondent may not lawfully discipline its members for declining to participate in such picket- ing. Accordingly, I conclude that by threatening to bring charges against certain of its members, and by holding a hearing on such charges, all because they failed to participate in unprotected picketing activi- ties, Respondent Local 60 violated Section 8(b)(1)(A) of the Act. My colleagues argue that when a union member disagrees with the union's interpretation of the contract's no-strike provisions, he acts at his peril in refusing to honor the strike; presumably, any con- cern the member may have about employer reprisal for allegedly violating such contract, however rea- sonable that concern may be in light of the contract's ambiguity, is outweighed by the union's legitimate interest in maintaining the integrity of its strike. Un- der their view, no matter how he guesses, the member may well be wrong, for he exposes himself to adverse action from either or both contracting parties. It is unconscionable to present a member with such a di- lemma. Instead the consequences must fall on the contracting parties, in this case the Union. since it was the one who agreed to the contract language which is uncertain, unclear, and therefore ambiguous in meaning. The union cannot penalize its members for not acting in accord with its dictates and avoid responsibility for its own failures in draftsmanship or the like. That I will not be a party to. Hence, I would find the violations as alleged even assuming that the picketing here did not violate the contract's no-strike provisions." Accordingly, I would find the violation under either of the alternative theories advanced by me above. In reaching this conclusion, I am aware that there are and uill be situa- tions where the interpretation of a no-strike clause will be necessars to determine the scope or extent of its coverage to certain situations,. such as sympaths strikes. See, e.g.. Garu-Hohurt ateur (C-rporarion. 210 NL RB '42 (1974). enfd. 511 F.2d 284 iC(A. 7. 1975), but this is not one of those situa- tions DECISION STATEMENT OF THE CASE JAMES L ROSE. Administrative Law Judge: This matter was heard I before me in St. Louis, Missouri, on January 11-12, 1977. The General Counsel's complaint alleged in general terms that Respondent threatened certain of its members with intraunion charges and held a hearing con- cerning those charges because these members had refused I Respondent's motion to correct the record in certain respects Is herchs granted to participate in certain picketing. It was alleged by these acts that Respondent violated Section 8(b)(1)(A) of the Na- tional Labor Relations Act, as amended, 29 U.S.C. § 151, ec seq. Upon the record as a whole, including my observation of the witnesses, briefs, and arguments of counsel, and the entire record in this matter I hereby make the following: FINDINGS OF FACT 1. THE Bt:SINESS OF THE COMPANY John Hancock Mutual Life Insurance Company is a cor- poration engaged in the selling of life insurance and related services throughout the United States of America, includ- ing St. Louis, Missouri. In the course and conduct of its business at its south St. Louis, Missouri, district office, the facility here involved, the Company annually derives in excess of $500,000 of which more than $50,000 is from premiums collected in the State of Missouri and submitted to its place of business in Massachusetts. Respondent admits, and I find, that the Company is an employer engaged in commerce within the meaning of Sec- tion 2(2). (6). and (7) of the Act. 11 THE LABOR ORGANIZATION INVOLVED The Respondent. Insurance Workers International Union, AFL-CIO, Local 60, is admitted to be, and I find is, a labor organization within the meaning of the Act. III THE ALI.EGED UNFAIR LABOR PRACTICES A. Factual Background Respondent's parent organization, Insurance Workers International Union, AFL CIO, Local 60 (herein called the International) is a party to a collective-bargaining agreement with the Company effective June 25, 1975, through the last Wednesday of June 1978. This contract covers a bargaining unit of all district agents employed by the Company throughout the United States excluding district managers, staff managers, and clerical and supervisory employees. There are approximately 6,000 district agents covered by this contract working out of approximately 300 district of- fices. The only facility involved in this matter is the St. Louis district office, one of four district offices of the Com- pany in the metropolitan St. Louis area. During negotiations for this contract, the Company pro- posed, among other things, a minimum standards clause, the essence of which was that each district agent would have to produce commissions of at least 50 percent of the nationwide average. Failure would subject him to dis- charge. The Company also proposed clarification of the article concerning agent's duties and responsibilities to in- clude that agents "will sell the products of the Company." The Union advised the Company during negotiations that the minimum standards proposal, if the Company continued to insist on it, would be a strike issue; however, the Union would agree to the "will sell" language. During 443 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the final hours of bargaining, the Company capitulated on its demand for the minimum standards. The "will sell" lan- guage was included in the contract. Approximately 3 or 4 months after execution of the con- tract, however, the Company began to enforce a minimum standards requirement similar to the one it had proposed during negotiations. The Union was advised that the Company began calling in agents whose quarterly sales records showed less than 50 percent of the company average. These individuals were warned that unless their production increased they would be discharged. The Company also advised in writing to all the agents whose production in 1975 was 50 percent below average that unless their performance improved they would be terminated. The International, specifically through Arthur Higgin- son, the International vice president in charge of the John Hancock contract, concluded that the Company's action was a "double cross." Accordingly, in or about February, Higginson advised the president of each local union as well as the district office chairman of each John Hancock district office that the International would undertake protest demonstrations. Such would be in the form of picketing the district offices of the Company throughout the United States 2 hours on each of 2 days a week. Apparently this time was picked because under the contract (art. XXI) there are two report days each week, normally on Tuesdays and Thursdays, when all of the agents of a particular district come to the district office to report sells, have meetings with the district manager, and related activities. Higginson, in his letter, specifically advised the local presidents and district chairmen that any district agent who was scheduled to have an audit, inspection, or other- wise was scheduled specifically to work during the period of the picketing would be excused from doing so. In the south St. Louis district, the report days are Tues- days and Thursdays with the agents normally being in the office from 8:30 or 9 a.m. until about 10:30 a.m. During these times they would do paperwork, and on Thursdays there would be a sales meeting starting about 10:00 a.m. and lasting one-half hour or so. It was determined by Re- spondent to picket the south St. Louis district office from 10:30 a.m. until 12:30 p.m., on Tuesdays and Thursdays, commencing March 18. There was, in fact, picketing dur- ing these hours on each Tuesday and Thursday from March 18 to April 6. The Charging Party, Raymond James Ottomeyer, Jr., as well as fellow employees Phillip P. Wilson, Jr., Robert Achter, Jerry Beal, Dennis Bullock, Cecilia Cappiello, Ma- rie Massey, Ray Pulmer, and William Stienmetz refused at one time or another to join in the picketing. The principal reason they gave for not picketing was that they believed the picketing to be violative of article IV of the collective- bargaining agreement which says, in pertinent part, "the Union, including all Locals thereof, will neither cause, di- rect, nor permit any member, officer or representative to engage, participate or in any way assist in a strike or slow- down." These individuals felt that the picketing action dur- ing what they considered to be time they would normally be working constituted a slowdown in violation of the con- tract and that to engage in such activity would jeopardize their jobs. They also questioned the International's posi- tion with regard to the substance of the protest. Ottomeyer testified that he felt the Company could do what it was doing because of the "will sell" language. For failing to join in the picketing, and not being ex- cused therefrom, the district office committee of the south St. Louis facility (Mitchell Assaf, chairman, Robert Ah- sens, secretary, and William Shriner, treasurer and publici- ty member) brought charges against them. These charges were set for a hearing before a trial board pursuant to the International constitution by the local union officers. The trials of each were held on July 14, 1976. To the date of the hearing, the district agents involved had not been advised concerning the disposition of the charges against them. B. The Contention of the Parties The General Counsel contends that by threatening to bring charges against these employees, and by actually doing so, and trying them for violating the direction of the International, Respondent thereby restrained and coerced them in violation of Section 8(b)(1)(A) of the Act. Implicit in the General Counsel's argument, although not alleged in the complaint, is that the picketing ordered by the International was in fact violative of the contract. Hence, the picketing was unprotected activity and to disci- pline an employee because he refuses to engage in unpro- tected activity violates Section 8(b)(l)(A). Respondent contends that it is privileged by virtue of the proviso to Section 8(b)(1)(A) to discipline its members. Thus, its threats to do so as well as actually trying the employees in question is not violative of Section 8(b)(l)(A). Implicit in Respondent's contention is the picketing, or- dered by the International and actually performed by members of Respondent, was not violative of the contract. C. ,4 nalvsis and Concluding Findings Section 8(b)( 1)(A) does not prohibit a union from discip- lining its members, so long as the reason for the discipline is not violative of some overriding public policy 2 such as where the member files a charge with the Board; 3 or where the member refused to honor a sister local's picket line, because to have done so would have been violative of the no-strike clause of a contract; 4 or where members were disciplined for crossing their union's picket line and per- forming work which, in a 10(k) proceeding, the Board said was theirs.9 If the activity here, directed by the International and engaged in by Respondent through its district committee and the district agents, was in violation of the collective- bargaining agreement then Respondent could not lawfully threaten or discipline those members who refused to partic- - Sofieldr, et ai ( Weonsim Motor Corpl v. N.L.R.B., 394 U.S. 423 (1969). Local 138. Intrrnationul Union of Operauing Engineers, AFL CIO (( harle S Skura), 148 NLRB 679 (1964) 4 L.ocal 12419, International Union o f Dist.ri. 50, United Mine WBorkers of .4nlerica (Natlional Grinding W'heel ( mnlpanv, In ), 176 NLRB 628 (1969). International Alliance Olf heatrical Stage Emplorees IRKO General, Inc. 4 OR I i' Division). 223 NLRB 959 (1976) 444 INSURANCE WORKERS INTL. UNION, LOCAL 60 ipate. 6 If, on the other hand, the activity was not in breach of the contract, or some other overriding public policy. then the Union might threaten to discipline its members and in fact do so without violating Section 8(b)(I)(A) of the Act.7 The General Counsel does not allege any act violative of an overriding public policy other than requiring employees to picket during times of "normal business activity." It is alleged only that the picketing by employees at the times indicated breached the contract. Thus, the dispositive issue is whether the picketing, in fact, did not breach the contract. The alleged breach of contract, however, is not an unfair labor practice, thus, whether there is a contractual relationship between Re- spondent and the Company is not material. Respondent is not alleged to have breached the contract in violation of the Act. Respondent is alleged to have urged employees to breach the contract and when they refused, disciplined them for the refusal. The contractual language relied on by the General Counsel is in article IV which prohibits the International or its locals from engaging in "a strike or slowdown." Article IV continues: The term "slowdown" as used in this Article shall mean, but not by way of limitation, concerted action by a group of Agents for the purpose of coercing the Company into granting their demands by the willful cessation or reduction of normal business activity. There is no question here but that the picketing was con- certed action by a group of agents for the purpose of coerc- ing the Company into rescinding its imposition of the mini- mum standards requirement. Indeed, the picketing was apparently successful inasmuch as the Company did in fact rescind the minimum standards requirement. Thus, the issue is whether by picketing the employees engaged in a "slowdown" within the meaning of the con- tract. While a literal reading of article IV could conceivably make the picketing a breach of the contract, for the reasons hereinafter given, I conclude that the protest demonstra- tion was not violative of the collective-bargaining agree- ment. Compensation of Company's employees specifically, and in this industry generally, is on a commission basis. One's salary is therefore tied directly to the number and value of policies he sells. This in turn is dependent directly upon the number of prospective purchasers he talks to. The number of prospects he talks to is tied directly to the amount of prospecting he does-telephoning or otherwise contacting people who might be interested in purchasing insurance. The more hours each week an agent works, the greater his likelihood of success. While there are some unproduc- tive hours (e.g., after 9 p.m.) the number of hours an agent can work each week is limited principally by his individual Co-mmunications .W orkcrs j.4 erilca, .4 Fl. ('10 and ,Ve i I r, Local a , 11()., (ommuniiation, I{orAt'r, A I .4mrira. .41t. ('10 204 NlRH 782 (1973). ' LRB 1. . 4li , ( hbalmiers .fanuftituring ( o,,,ipan, 388 t S 175 (1967) stamina. It follows, therefore, that some insurance agents work more hours than others and that, in any event, the work hours of insurance agents vary to some extent de- pending on the needs of the consumer public and the agents' capacity. Typically during the daytime hours--from approximate- ly 9 a.m. until 4 or 5 p.m. an agent does his "prospecting" as well as a certain amount of required paperwork involv- ing previously sold policies. In the evenings, from 6:30 or so. the agent makes personal visits to people with whom he had arranged appointments. This is done most evenings, Mondays through Fridays, and occasionally on Saturdays. Some agents (do work a few hours on Saturdays and occa- sionally on Sundays, again depending on the particular agent's capacity and desire. Other than the two specific reporting days and an occa- sional special occasion, the agents are not required to be at the district office. The district debit agent is, to an extent, an exception to this in that he works out of the district office, whereas the others work out of their homes. Though he is available to service walk-in accounts and receive pay- ments. there are also clerks available for these purposes. But he also must, and does, spend much of his time out of the office. Thus, I find that for purposes of this case, the district debit agent was no different from the others. While there are no uniform normal business hours for insurance agents, the general pattern appears to be 10 or 12 hours a day. Monday through Friday, and a few hours on the weekends. Again depending on the particular agent, time is taken off for lunch, supper, as well as other activi- ties, including attending union meetings. The question, therefore, is whether by picketing on Tues- days and Thursdays from 10:30 a.m. to 12:30 p.m., the employees were engaged in a "slowdown," that is, a "re- duction in normal business activity." From the totality of the record it is apparent that had they not been involved in picketing during the times indi- cated. they would in almost every case have been engaged in some activity involved in the business of selling life in- surance for the Company. The testimony of Ottomeyer, Cappiello, and Wilson is that they refused to participate in the picketing and, in fact, during the hours of the picketing did engage in work activity on behalf of the Company. Wilson testified, for instance, that he picketed on the first day, determined that it was not a good idea, and on the other days did his usual work which included being at the district office as the district debit agent. On the other hand, the picketing employees might very well have used these particular blocks of time for personal business. In any event, that the employees may very well have had work which could have been done during the picketing hours does not necessarily mean that by picketing they were involved in a "reduction of normal business activity." Since the hours and amount of "business activity" vary between agents, what is "normal" is necessarily ambigu- ous. The precise meaning of the work "slowdown" in the contract, therefore, is open to interpretation. The only meaningful evidence brought forth at the hear- ing concerning what this clause means was the testimony of Higginson concerning its origin. He testified that in the years prior to this particular clause having been agreed to. 445 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occasionally agents would concertedly determine, for in- stance, not to report all their sales of the previous week or concertedly refuse not to go to the district meeting. It was this sort of thing that the Company wanted stopped. This type of activity, which the parties agreed to pro- hibit, is not what Higginson referred to as "lunch demon- strations," wherein the agents, during the lunch hour or similar short periods of time, would picket or otherwise protest company actions. Higginson's undenied testimony is that "lunch demonstrations" were not prohibited by arti- cle IV. In addition, Higginson instructed the local unions that the time for this particular protest should be set as conven- iently as possible to the particular district's reporting hours but should not interfere with them, and that members who had specific assignments for the Company should be ex- cused from the picketing. (Ottomeyer was in fact excused on the two occasions he was out of town on company busi- ness.) It is apparent that the International, and presumably Re- spondent, sought to demonstrate against the Company but without requiring employees to be away from a specific job assignment. As to prospecting, meeting with prospective customers and the like, the individual agent could control the precise time of this work. Therefore neither picketing, nor doing anything else during those specific hours, would necessarily interefere with their ultimately doing that work. The thrust of the activity here was not that the employ- ees were refusing to do all their work. They were not with- holding any services. They simply were not doing any work from 10:30 a.m. to 12:30 p.m. on Tuesdays and Thursdays in order to picket the company office. The fact that no calls, or whatever, were made during these times was inci- dental. The employees were not protesting by refusing to work-they were protesting by picketing. Such was the International's instruction and such, I find, was the case. To conclude that the picketing here was violative of the slowdown proscription of the contract would mean that at no time during the day or night could Respondent direct its members to engage in protest picketing of the Company. This is so because a given agent might conceivably have something to do involving the Company's business. In short, to agree with the General Counsel's contention that this picketing was violative of the contract would mean that from the hours from 8 a.m. until 9 p.m., or so, Respon- dent could not demonstrate or do anything involving the participation of its members. It could not, for instance, hold union meetings, which it does in the afternoons, or have agents appear at legislative hearings, as other locals have done. To interpret the contract so restrictively would be to conclude that the International willfully negotiated away its right to engage in protest activity against the Company, where, as in the instant case, it had strong reason to believe that the Company was itself breaching the contract. Upon the state of this record and reading the clause in question I cannot make such a finding. I cannot conclude from the contract language that the International give up its right to engage in protest picketing on the very limited basis that it did in this case. This superimposed on Higginson's testi- mony concerning what the parties actually meant when they negotiated this language leads me to conclude that picketing during normal business hours, but at times when the district agents are not required specifically to be work- ing, is not a violation of the contract. The picketing was therefore not unprotected activity. Accordingly, Respon- dent could lawfully threaten to discipline and actually dis- cipline its members who refused to participate. THE REMEDY Having found that Respondent did not violate Section 8(b)(1)(A) of the Act, I will recommend that an order be issued dismissing the complaint in its entirety. CONCLUSIONS OF LAW 1. John Hancock Mutual Life Insurance Company is an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. Insurance Workers International Union, AFL-CIO, Local 60, is a labor organization within the meaning of Section 2(5) of the Act. 3. By picketing the Company's south St. Louis district office from 10:30 a.m. to 12:30 p.m., on Tuesdays and Thursdays, from March 18 to April 6, 1976, Respondent did not breach, nor require its employee-members to breach the contract Insurance Workers International Union, AFL-CIO, has with the John Hancock Mutual Life Insurance Company. 4. By threatening to discipline and actually disciplining the employees named in the complaint because they re- fused to participate in the picketing described above, Re- spondent did not violate Section 8(b)(1)(A) of the Act. Upon the foregoing findings and conclusions, the entire record in this case and pursuant to provisions of Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 8 The complaint is hereby dismissed in its entirety. 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. 446