The Kansas City Star Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Kansas City Star Company and Kansas City Web Printing Pressmen's Union No. 14, IPGC. Cases 17-CA-6054 and 17-CA-6054-2 June 12, 1978 DECISION AND ORDER On August 7, 1975, Administrative Law Judge Richard L. Denison issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs, and Respondent filed an answering brief to these exceptions, as well as exceptions and a support- ing brief. 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 the facts and issues involved in the alleged unfair labor practices have been fully and competently con- sidered and decided by an arbitrator pursuant to grievances filed under the parties' bargaining agree- ment. For the reasons more fully set forth below, we shall defer to the arbitration award and dismiss the complaint herein in its entirety. Respondent publishes a daily newspaper: the Charging Party has represented a unit of pressmen for over 50 years, until the events giving rise to this proceeding. The most recent collective-bargaining agreement between Respondent and the Union con- tained a no-strike clause and a grievance procedure culminating in final and binding arbitration. On May 3, 1974, David Bowlen, a journeyman pressman, was transferred to an oiler's job for failure to perform his duties as a pressman. Bowlen com- plained to the Union and to fellow employees. Union President Fowler and Union Vice President Ellis, in a telephone discussion with Respondent's labor rela- tions manager, expressed dissatisfaction with Bowlen's transfer, asked that the transfer be revoked, and intimated that the employees were upset. Man- agement reviewed the incident and, as a result, dis- charged Bowlen for neglect of duty. Employees on the day shift with Bowlen were up- set but stayed on the job and completed their over- time work. The employees on the next shift reported for work but stood around rather than working. Af- ter being warned that failure to work would result in discharge, the approximately 97 pressmen continued to refuse to begin working and were fired. After some delay, the pressmen left the plant and set up a picket line. On May 5, 1974, Respondent's board of direc- tors decided to rescind the bargaining agreement with the Union and so notified the Union, offering to arbitrate grievances which arose when the contract was in effect. The remaining pressmen, who were not fired, joined the picketing. On May 6, 1974, Respon- dent gave notice that it would begin seeking perma- nent replacements for the strikers who had not been discharged. The same day, the Union offered to re- turn the pressment to work. Respondent answered that it would reinstate only those employees who had not been fired. As indicated above, the Union grieved the dis- charges of the pressmen. Being unable to resolve the grievances in the earlier steps of the grievance proce- dure, the parties sub~mitted the matter to arbitration pursuant to the terms of their bargaining agreement, except they waived an arbitration board and agreed to have Peter M. Kelliher serve as sole arbitrator. The arbitrator held hearings on February 3, 4, 5, 6, 7, 10, and 11, 1975, at which the parties fully partici- pated. A transcript of the proceeding was taken, and both parties submitted posthearing briefs. The arbi- tration decision, an exhibit therein, fully describes the facts, determines questions of credibility, sets forth the positions of the parties, analyzes the issues, and reaches definitive conclusions. The arbitrator found that Bowlen had "caused a serious delay and loss of production by his neglect of duty and absence from his work station" and con- cluded that his transfer was proper. The arbitrator also found that only after the Union threatened a work stoppage if the transfer were not then revoked did Respondent decide to discharge Bowlen. The ar- bitrator found that Bowlen's discharge was not in any way a reprisal for his attempting to file a griev- ance. Of the other pressmen who were discharged, the arbitrator found that all but two had engaged in the May 3, 1974, work stoppage in contravention of the collective-bargaining agreement. The arbitrator or- dered that the two be offered reinstatement with backpay; he concluded that the others had been dis- charged for just cause. The arbitrator cited a memo- randum of agreement in which the Union pledged to prevent work stoppages and agreed that employees engaging in work stoppages "are properly subject to disciplinary action by the Company, including dis- charge." The arbitrator found that the pressmen had a past pattern of refusing to work pending the pro- cessing of a grievance. In discussing the events of May 3, 1974, the arbitrator cited testimony of three witnesses that they heard Ellis, the union vice presi- dent, threaten a work stoppage. Although Ellis de- nied doing so, the arbitrator stated that he "simply cannot find that Mr. Ellis was a credible witness." 236 NLRB No. 119 866 KANSAS CITY STAR COMPANY The arbitrator found, "There can be no question Mr. Ellis was in command of the situation that evening." The arbitrator concluded that Ellis "was in a leader- ship role in this work stoppage and took no effective action to prevent it." The complaint herein alleges in essence that Re- spondent violated Section 8(a)(3) of the Act by un- lawfully discharging Bowlen and the pressmen who refused to go to work and Section 8(a)(5) by rescind- ing the collective-bargaining agreement. The Board, however, holds that it will defer to an arbitration award where the proceedings appear to have been fair and regular, all parties have agreed to be bound, and the decision of the arbitrator is not clearly repug- nant to the purposes and policies of the Act. Spiel- berg Manufacturing Company, 112 NLRB 1080, 1082 (1955). We find that the arbitration award herein meets these standards.' A full factual record was made before the arbitrator; he considered and reject- ed the contention that the discharged employees had been engaged in protected activities; and he found that the Union, through its vice president and agent, was responsible for the work stoppage. All issues contained in the complaint were presented, consid- ered, and determined in the arbitration proceeding.2 Although the arbitrator made no specific finding that Respondent's rescission of the bargaining agreement was legally permissible, the arbitrator made factual findings regarding union responsibility for the stop- page which precluded any other result. Chairman Fanning's and Member Jenkins' dissent on this point has been ably answered by Member Truesdale in his concurrence and need not be repeated here.3 Member Murphy points out that she has consistenily and whole- heartedly adhered to and followed the principle of Spielberg, uprra although she has in some cases, such as those cited by Member Penello in fn. 3, below, concluded that on the particular facts there presented such deferral was not appropriate. See, especially, the discussion of Spielherg In Member Murphy's concurnng opinion In General .Ameriwan Tranporitalion ('orpora tion, 228 NLRB 808, 812. and fn. 20 (1977). See also Lnited Parel Sncriie, Inc., 232 NLRB 1114 (1977): Owners Maintenance C(orp. 232 NLRB 104) (1977); Automobile Transport. Inc., 223 NLRB 217 (1976); and Fikts BrL,, Inc., 220 NLRB 1301 (1975), reversed and remanded 550 F 2d 535 t(.A. 9. 1977). Here, in adopting the Administrative Law Judge's Decision, Member Murphy relies only on the agreement of the parties to be bound by the decision of the arbitrator, the nature of the arbitrator's findings. and the fairness and regularity of the proceedings. Contrary to the Administratise Law Judge, she does not rely on Electronic Reproduerion Service ( iorporation, et at., 213 NLRB 758 (1974). inasmuch as she does not subscribe to its principle that deferral is essential where an arbitrator coulu have decided an issue even if "it was not in fact presented for determination" 2Thus, Electronic Reproduction Seriice Corporation. 213 NI.RB 758 (1974), is distinguishable from the instant proceeding. Accordingly. the Ad ministrative Law Judge's citation of that case is immaterial herein. and we find it unnecessary to rely thereupon. 3 Member Penello believes that Spielherg stands for the principle that. absent specified abuses, the Board will yield its authority to that of another forum-i.e., defer to an arbitrator's decision. Chairman Fanning and Meim- her Jenkins. in their separate opinion, again pay lipser sice to .5pielherg. even claiming to have deferred to part of the arbitrator's award. Ihes hiave not deferred but. instead, after de noo, re iew of the facts, have ad.pted Ihalt part For the above reasons, we find that the arbitrator's award herein is not repugnant to the policies of the Act: is, on its face, fair and regular; and was reached by a procedure to which the parties have agreed to be bound. Accordingly. we conclude that it will effectu- ate the purposes of the Act to give conclusive effect to the grievance award and, on that basis, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended. the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the com- plaint be, and it hereby is, dismissed in its entirety. MEMBER TRUIESDALE, concurring: Although I substantially agree with my colleagues, Members Penello and Murphy, I am concurring separately because I have not heretofore expressed views on the Spiel- berg doctrine.4 In my view, this case presents two questions under Spiel- berg.: (I) the degree to which the Board will scrutinize an arbitrator's decision; and (2) the extent to which the Board will rely on an arbitrator's decision in ruling on an issue which was not before the arbitrator, but which is inextrica- bly tied to issues which were decided. In the instant matter. the arbitrator was asked to determine the lawfulness of the Employer's (here Respondent's) discharge of employee Da- vid Bowlen. and of 97 strikers-including the union vice president. Chester Ellis. and another union representative, Kenneth E. Bailey-who protested Bowlen's discharge. The arbitrator found that employee Bowlen was dis- charged solely for negligent performance of his duties as a reelman. The Administrative Law Judge, in passing on an allegation that Bowlen's discharge violated Section 8(a)(3). deferred to the decision of the arbitrator under Spielberg, and accordingly recommended dismissal of this part of the complaint. I agree with this disposition. The arbitrator also found that Respondent had lawfully discharged 95 to 97 employees, since-with the exceptions of 2 employees (for whom he ordered reinstatement)-all others, including Vice President Ellis, had participated in the strike which was prohibited by various sections of the collective-bargaining agreement. The Administrative Law Judge, again adhering to Spielberg, deferred to the arbitrator's decision. and recommended dismissal of the remaining 8(a)(3) and (I) allegations in the complaint. He of the aiard with which the? agree. In cintrast. Member Penello has consl,- lentls. aid somnetines alone. supported the Spielherg principle See. e.g, his di,,ents in l ia.t 1I1, Pr,-iodulcing Dp.lirtment, Ilousron Diniiion. 233 NL.RB 37s ( 1477), and D)liuiaA .ilrc rft ( oniptnli Component of UcDonnell Dougtqi (orporatiton. 234 Nl RB No 80 '1978) Member Pencllo notes that his posti- tliini on Srpilhberti does nit significantl differ from that taken todai bh lembei- I ruesdale. w ho has not pres iuskl addressed the issue. and that Mlembethe urph, also joins in deferral to the arbitration award. hus, this Inmgsitanding. sometimes tripping. later falling. hut not set dow ned Board precedent has been re ised to stand anew In Member Penello's experience. oth nimanagemnent and .labor generalli haie accepted Spielhergt and should welcom e its re it.lh,. an1101 t4 .>,'lbrg Slfitinl ltotrinc ( ottpa.ln 112 N RB 108t (l1955) 867 DECISIONS OF NATIONAL LABOR RELATIONS BOARD also stated that the arbitrator had found that the Union was responsible for the strike. I also agree with this deter- mination. The full Board today affirms the Administrative Law Judge's decision to defer to the arbitrator's finding that Respondent's discharge of Bowlen and 94 of 95 strikers was lawful. Thus, the area of disagreement between the majority and the dissent is not great. In addition, however, Members Penello and Murphy and I defer to the arbitrator's findings both with regard to the discharge of Vice President Ellis (the remaining striker), and in de- termining the lawfulness of Respondent's rescission of the collective-bargaining agreement. My dissenting colleagues, Chairman Fanning and Member Jenkins, would not defer to the arbitrator's findings in either of these matters. With regard to Ellis's discharge, the dissenters review exhaustively the record evidence before both the arbitrator and the Administrative Law Judge, and determine '"prima facie" that Ellis, at the time of his discharge, was engaged in protected activity because, in their view, he was seeking to settle the strike. They, therefore, conclude, from facts quite different from those found by the arbitrator,5 that the arbitrator's upholding of Ellis' discharge was "repugnant to the Act." My dissenting colleagues' exhaustive review of the evi- dence regarding Ellis' discharge contrasts sharply with their review of the evidence supporting the arbitrator's other findings. For, in deferring to the findings on the other 94 dischargees, they have not engaged in the same laborious review of the record evidence, but rather, have approached that aspect of the case with the same standard of review used by the majority. Their different approach for Vice President Ellis seems unwarranted, and inconsis- tent with the theoretical underpinnings of Spielberg. Under Spielberg, the Board will respect the parties' choice of the arbitral forum, and will accord recognition to the arbitrator's resolution of their dispute, so long as the proceedings meet certain criteria: (I) they are fair and reg- ular; (2) the parties have agreed to be bound; and (3) the arbitrator's decision is not clearly repugnant to the policies and purposes of the Act.6 The parties having chosen this forum, the Board binds them to the arbitrator's decision, unless they can show that one of the criteria has not been met. The Board has not, however, refused to defer to an arbitrator's decision simply because, in the Board's judg- ment, the record evidence is susceptible of other inferences. Rather, the Board has acted more like a reviewing court, and has not engaged in a de novo review of the record evidence. As the Board stated in Spielberg at 1082: [T]he arbitration award [here] is not, as it was in Mon- santo, at odds with the statute. This does not mean that the Board would necessarily decide the issue of the alleged strike misconduct as the arbitration panel did. We do not pass upon that issue. [Emphasis sup- plied.] See discussion in fn. 7. infru. There is also a requirement, added later, for the arbitrator to have con- sidered the unfair labor practice issue and ruled on it. Raytheon Compuan. 140 NLRB 883 (1963), enforcement denied 326 F.2d 471 (C.A. 1, 1964) This issue is considered separately, infra. In my view, the vice of my dissenting colleagues' conclu- sion is their willingness to engage in a de novo review of the evidence.7 This willingness to review the evidence exhaus- tively and then substitute their judgment for that of the arbitrator can only serve to undermine the integrity of the arbitral process. It further suggests that the dissenters do not believe, as they say they do, that the proceeding was fair and regular. For, if they really believe that the parties were accorded due process, that the parties had presented all of their evidence, 8 and that they were heard by the arbi- trator before he made his findings, why do the dissenters look behind those findings and second-guess the arbitrator's reading of the record? The arbitrator, instead of being the parties' chosen decisionmaker, becomes more The dissenting opinion justifies its de novo review of the evidence on the ground that, unlike the other findings, the arbitrator's finding that Ellis was discharged for participating in the strike as a union officer was ambiguous. The Administrative Law Judge thought otherwise, and a reading of the arbitrator's decision supports the Administrative Law Judge. Thus, as noted by Members Penello and Murphy, the arbitrator found that, soon after Bowlen's transfer. Ellis threatened a work stoppage unless Bowlen were transferred back to his original position that same evening: "We are not going to wait for a grievance, you have to put the men back." Thereafter, the employees refused to work, even after a company spokesman called them to a meeting and told them they would be discharged unless they returned to work. Moreover, the arbitrator found that Ellis was present when the Company made its ultimatum to the strikers, but that he nevertheless failed to urge them to return to work and to allow the grievance to be pursued through arbitration. On the other hand, the arbitrator cited several other instances in which the employees obeyed the orders of Union Vice President Ellis. Based on these findings and others, the arbitrator concluded that Ellis was not a credible witness, that he had been a leader in the work stoppage, and that, accordingly, Ellis was lawfully discharged. My dissenting colleagues, however, sift through the record and the arbitrator's decision for evidence which contradicts these findings, and for statements by the arbitrator which seems to undermine his ultimate conclu- sion. With reference to the finding of Ellis' leadership role in the strike, they assert that this is contradicted by Ellis' having held a meeting at which he asked the employees to return to work. In the first place, the arbitrator took this evidence into account in reach- ing the conclusion that Ellis led the strike. It is clear from the decision that the arbitrator found Ellis' defense that he was trying to stop the strike incredible because it was inconsistent with his threat to strike, his own work stoppage-even after being told he would be discharged if he did not work-and his demonstrated ability, with reference to all matters except the strike, to command effectively the activities of the employees. Thus, the record shows that they would not obey even the police until Ellis gave the word. In this context, it is indeed incredible that he had sincerely ordered the employees to return to work, but they refused. Moreover, it is unfair to the arbitrator's decision to claim that the basis for his upholding Ellis' discharge was solely Ellis' failure to work. It was not simply his failure to work, but rather Ellis' participation in the work stop- page-which was established by many pieces of evidence-including Ellis' not working. Indeed, the arbitrator recognizes that there could be valid reasons for refusing to work which would render the discharge unlawful, but that Ellis and the other employees-except for two-failed to provide any. (Arbitrator's Decision, pp. 18 and 21-23.) Similarly, a later statement relied on by the dissent does not undermine the finding of Ellis' leadership role, since it merely points out that the Union did not have to pressure the employees to strike. Surely. if the dissenters believe these findings ambiguous and inadequate to warrant deferral, they will search long and hard for future decisions in which they will be able to defer under Spielberg 8 In this respect, this case is distinguished from Electronic Reproduction Service Corporation. Inc., 213 NLRB 758 (1974), because here both parties presented all of the evidence relevant to the issues before the arbitrator. In Electronic Reproduction. the union failed to present evidence in its posses- sion that two grievants were laid off for union activity. Accordingly, I join Members Penello and Murphy in not relying on that decision for the result reached herein. 868 KANSAS CITY STAR COMPANY akin to a hearing officer who merely takes evidence from which the Board draws its own conclusions. If this change in the arbitrator's role occurs, then the parties' agreement to be bound by the arbitrator's decision becomes mean- ingless. Thus, Spielberg loses its force, and a doctrine which has worked well in the past is vitiated. On the other hand, the majority's approach-used in part by my dissenting colleagues-preserves the purpose and doctrine of Spielberg. The majority reviews the record evidence, sees no irregularities in the proceedings and no facial errors in the arbitrator's factual findings, and then examines the arbitrator's legal conclusion to see if, on the facts he has found, it is consistent with Board law. Finding that it is, and that the arbitrator actually considered Board law in ruling on all of the discharges-including Ellis-the majority defers to the arbitrator's decision. This approach is more consistent not only with past Spielberg decisions, 9 but also with the strong labor policy which favors volun- tary arbitration.' ° For this reason, I concur with my col- leagues' deferral to the arbitration proceeding. Secondly, the dissenters and I disagree on whether the Board should rely on the arbitrator's findings in deciding whether Respondent violated Section 8(a)(5) in rescinding the collective-bargaining agreement. The majority has re- lied on his findings, while the dissenters strike out on their own, and review the evidence, thereafter concluding that rescission was not lawful because the Union-really Ellis- did not sanction the strike as required for a breach of the no-strike clause. My dissenting colleagues also argue that, even if the facts were as the arbitrator found, they would not defer because: (1) the issue of rescission was not specif- ically before the arbitrator, and Spielberg requires that the legal issue be before the arbitrator before the Board may defer; and (2) even if Spielberg does not require the arbitra- tor to have considered the specific issue, the arbitrator failed to make a finding critical to our deciding the issue. to wit, whether the Union was responsible for the strike. With respect to the first issue, this case is unique. For, while the arbitrator did not pass on the legality of rescis- sion, he was required to rule on every factual and legal question necessary to the resolution of this issue, since the legality of rescission-as a self-help remedy available to Respondent-turns on whether Respondent could legally discharge the strikers, and whether the strike was legal.' Both of these issues were considered fully by the arbitrator in the context of the pending unfair labor practices. 12 The arbitrator found that Bowlen's discharge was lawful, and that a strike in protest of the discharge violated the con- tract. He then made findings with respect to each 9 See, e.g., AMF Voit, Inc., a subsidiary of A MF Incorporaled. 223 NI.RB 363 (1976); Howard Electric Co., 166 NLRB 338 (1967). Disney land. a Divi- sion of Walt Disney Productions, 157 NI.RB 1342 1966). ,o United Steelworkers of America %. Enterprise Wheel & Car Corp. 363 U.S. 593 (1960). In noting this established policy, I do not mean to pass on any aspect of the Collyer doctrine. Collver Insulated Wire. A Gulf and West- ern Sysiems Co., 192 NLRB 837 (1971). The Spielberg and (Colli rer doctrines. although predicated on similar policy considerations, are distinct legal con- ceqts which should not be needlessly confused. Marathon Electric Mfg. Corp.. 106 NLRB 1171 (1953). 1 Thus, this case is distinguishable from Raytheon Corpans, supra. in which the arbitrator had not been aware of the effect of his ruling for labor law purposes. employee's participation in the strike, including Vice Presi- dent Ellis and Bailey, another union representative. The findings that Ellis and Bailey participated in the strike '3 also established, a fortiori, the participation of the Union in the strike, since even my dissenting colleagues concede that, whatever Ellis' substantive role, he participated in the events in his capacity as vice president. Thus, my decision to concur rests on the unique relationship between the is- sues decided and the one omitted-since all of the factual and legal findings necessary to the resolution of the 8(a)(5) allegation concerning rescission were also necessary to a determination of the legality of the discharges. These issues were vigorously litigated before the arbitrator, and he reached his decision on the basis of a full record. No more is required. For these reasons, I concur in the majority decision. CHAIRMAN FANNIN(; AND MEMBER JENKINS. concurring and dissenting: Contrary to our colleagues, we believe the Company's May 5, 1974, rescission of the Union's contract violated Section 8(a)(5). The Company contends that the May 5, 1974, rescission was justified because, 2 days earlier, on May 3, the Union had violated the contract's no-strike clause. This, accord- ing to the Company, was the type of material breach that, under Board precedent, entitles an employer to effect a rescission. The Administrative Law Judge agreed with the Company and found the Union had violated the no-strike clause. We do not believe the record supports that conclu- sion. The strike of May 3 did not start until after the night shift had begun. The majority of the pressmen assigned to that shift reported to work at 9 p.m. as scheduled, but, to protest the earlier discharge of David Bowlen, a pressman assigned to the day shift, refused to run the presses. The shift's five men-in-charge, or leadmen, were discharged within the first 5 or 10 minutes of the shift, allegedly for disobeying orders to go to work. About 9:45 p.m., the Company discharged the shift's 92 other pressmen, includ- ing Chester Ellis, the Union's vice president, for refusing to work. Some of the dischargees then started picketing the Company's premises. The next morning, the Company obtained a state court temporar) restraining order enjoining the strike. Later that day, the union leadership distributed a leaflet instructing the pressmen to comply with the temporary restraining or- der and to report to work as scheduled.'4 The bulk of the unit's remaining 44 pressmen appear to have ignored these instructions and joined the strike. After rescinding the See suinmnar) of arbitratr's findings with respect to Ellis in fn 7, rupra ' 'he leaflet explained what conduct the temporary restraining order applied to. and further stated: Accordingl\, the t nl.l and Janimes I oler. (hester tlihs Jr and Jack Gash instructs each and eser? member of L.ocal 14 to cease and desist from engaging in ans activity prothihbited in the temporars restraining order and Instructs its menmhers sh. are Star employees to report for work in accordance wllh their regularly scheduled shlfts of Work The tinlon will take appropriate action agains, those rnmember wvho refuse to compl) Fotler Ilihs. and (Gash were offcers of the Unlon The leaflet Aas prepared after these threc were serred w ith the temporart restraining ouldcr and after Lonsuhlt.il, n with the t inon'x aitirnel 869 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union's contract, the Company sent letters, dated May 6, to the 44 pressmen who had not been discharged, offering them reinstatement. 5 The Union filed 8(a)(3) and (5) charges, and the General Counsel issued a complaint, alleging that Bowlen was dis- charged for trying to file a grievance and that the strike to protest his discharge was therefore protected under Mastro Plastics, 6 despite the contract's no-strike clause. Alterna- tively, the General Counsel alleged that the strike of May 3 was a wildcat strike for which the Union was not responsi- ble and that therefore the Union had not violated the no- strike clause. Under the latter theory, the May 5 rescission violated Section 8(a)(5), because it had not been preceded by a material breach on the Union's part. The Union also grieved the discharges and the rescis- sion; the Company, however, agreed to arbitrate only the grievances involving the discharges. After the Board hear- ing, the parties held a hearing before an arbitrator. The arbitrator upheld the discharge of Bowlen, specifically finding the Company had not discharged him for filing a grievance.'7 The arbitrator also appears to have decided that the May 3 strike was prohibited by sections 4C '8 and 10B 19 of the contract, which was executed December 16, 1973, and made effective from October 1, 1973, through September 30, 1975, and by two memorandums of under- standing, dated December 1972 20 and February 1973.21 The penalty invoked was also warranted, according to the arbitrator, because the pressmen had repeatedly broken ' The letters stated: This is to notify you that commencing Thursday. May 9. 1974. the Company will begin seeking replacements to perform necessary me- chanical department jobs This is not a notice of discharge. Such jobs will remain available until they are being performed by returning em- plosees or permanent replacements In a subsequent telegram. dated Ma) 7, the Company stated: During the emergenct conditions created by the actions of Pressman's Local 14. its officers and members, The Kansas City (Company has continued to urge that all pressroomn emplosees not discharged return to) their jobs at the company under existing terms and conditions. We continue to do so. 'I hose former pressroom empioyees who were dis- charged on Ma) 3. 1974 are not and will not be offered reinstatement as employees of the Kansas C(its Star C(ompany f Mautrro Plar-'s ( orr.. and [rc, h American Reeds Mfg (o.. Inl A.L. RB., 350 UIS. 270 (19506) I Arbitrator's D)ecision at p. 21 it Sec. 4(C ;ated: TIhe Union or its officers. a;gernts or representatives shall not authorize, encourage. induce or sanction any strike, slowdown, work stoppage ior ans action bh its members or any of them individuall] or in concert which will impede. interfere with or dela) the prompt and regular pub- lication of the publisher's products during the life of the contract. '9 Sec I 0B stated: the right of the Publisher through the foreman to discharge shall not be questioned during a shift nor shill operations be interfered with during a shift becaulise of such ,aclion. 2(The memorandum. entered into when the existing contract did not include an express no-strike clause, was a settlement agreement: the Crom- pany withdrew a suit for injunctive relief against the Union. and the Union pledged the following: I The t nmon and its officers pledge to the C(ompany that the) will assist the ('ompany hb all means reasonably possible in assuring that there are no work stoppages. slow dowtns, sabotage or other individual or concerted refusals to perform assigned work bs members of the Pressman's U nion employed by the ('ompan. prior no-strike agreements with the Company and had been warned several months earlier that the Company in- tended to discharge future strikers. The arbitrator found that there was no just cause to discharge two of the press- men, however, because neither had refused to work the night of the strike. At the Company's request, the Administrative Law Judge reopened the record to receive into evidence copies of the transcript and exhibits of the arbitration hearing and the arbitration award. Citing Spielberg Manufacturing Com- pany,2 2 the Administrative Law Judge decided to defer to the award with respect to the 8(a)(3) allegation involving Bowlen. Adopting the arbitrator's finding that Bowlen was not discharged for filing a grievance, the Administrative Law Judge also decided that the strikers were not protected under Mastro Plastics, supra. As for the General Counsel's alternative theory, the Administrative Law Judge read the award to hold that the Union was responsible for the strike, and, adopting this alleged holding, concluded that, because the Union had therefore violated the contract's no-strike clause, the May 5 rescission had been lawful. Applying the Spielberg standard of review, we would de- fer to the arbitrator's award with respect to the 8(a)(3) alle- gation involving Bowlen. As Bowlen's discharge therefore did not involve an unfair labor practice, we also agree that the strike was not protected under Mastro Plastics. As the contract otherwise prohibited the May 3 strike,23 we must also find that, with the exception of Ellis, the Union's vice 2. The Union and its officers agree that any members of the Union employed by the Company who engage in work stoppages, slow downs, sabotage or other individual or concerted refusals to perform assigned work will be subject to all sanctions available to the Union under its constitution and by-laws. 3. The Union and its officers agree that any of its members em- ployed by the Company who engage in work stoppages, slow downs, sabotage or other individual or concerted refusals to perform assigned work will not be protected by the Union and they acknowledge that any of its members employed by the Company who engaged in such conduct are properly subject to disciplinary action by the Company, including discharge. 4. The Union acknowledges and agrees that any disputes or dis- agreements with the Company must and will be resolved through the grievance-arbitration procedures of the applicable labor agreement and will not be resolved by acts of misconduct such as described herein. 5. The Union agrees that it will promptly notify each and everyone of its members employed by the Company of the foregoing pledges and agreements. will provide each of its members employed by the Compa- ny with a copy of this memorandum of understanding and will make every bona fide and good faith effort to comply with and enforce the foregoing pledges and agreements. r21 his memorandum included a settlement of an) unfair labor practice charge filed bh the Company against the Union and of a company grievance seeking monetary damages against the Union. The Company withdrew the grievance subject to two conditions: that the Union (I) "continue to take affirmative action to honor and comply with" the December 1972 memo- randum. and (2) agree to a set of office rules satisfactory to the Company. :112 NLRB 1080(1955). 2' See sec. 10B at fn. 19, supra. We also note that sec IOK, the contract's grievance-arbitration clause, stated: Pending the settlement of the question or questions involved, work shall he carried on as directed by the foreman without interference or interruptions. 870 KANSAS CITY STAR COMPANY president, the discharges of the other pressmen that night also did not violate Section 8(a)(3). We do not agree, how- ever, with the Administrative Law Judge's further holding that the Union violated the contract's no-strike clause and his rejection of the General Counsel's wildcat theory for finding an 8(a)(5) violation. As to the 8(a)(5) allegation, the key issue is whether the Union breached the contract's no-strike clause, section 4C, which states that no union officer, agent, or representative could "authorize, encourage, induce or sanction any strike." 24 This issue was not before the arbitrator. The Ad- ministrative Law Judge nevertheless concluded the arbitra- tor had found the Union responsible for the strike. As the award does not make such a finding, this conclusion ap- pears to stem from certain remarks by the arbitrator about Ellis' conduct the night of the strike. These remarks and the arbitrator's decision to uphold his discharge suggest that Ellis participated in the strike and thereby "encour- aged" or "sanctioned" it. Because Ellis was an officer of the Union, his participation could have amounted to a breach of section 4C. Our examination of the undisputed record testimony, however, reveals that from the time the strike began until his discharge Ellis was engaged in pro- tected activity; i.e., attempting to keep the pressmen from striking. As a result, we cannot now agree that Ellis partici- pated in the strike. Responsibility for the strike or, more accurately, a breach of section 4C, therefore, cannot be attributed to the Union through Ellis. For the same reason, the part of the award that upholds Ellis' discharge is repug- nant to the Act.25 Ellis' activities during the night shift can be summarized as follows. At 9 p.m., Ellis reported to his work station. Within a few minutes, McCoy came by to report that he 24 We will assume, without deciding, that a breach of the no-strike clause would have entitled the Company to rescind the contract. This proposition is open to question. See Pence Construction (Corporation Hoisting and Port able Engineers Local 450 of the International Lnion *f Operating Engineerr, .4FL-CIO. 484 F.2d 398 (C.A 5. 1973): N 1, RB v. State Elhctric Serve, Inc., 477 F.2d 749 (C.A. 5. 1973). 25The issues before the arbitrator were (I) whether the strike of Ma, 3 was prohibited by prior agreement between the Union and the Compan), and (2). if so, whether the employees who were discharged that night .ere strike participants, As noted, the arbitrator found the stnke had been pro- hibited by prior agreement. As the test for resolving the second issue. the arbitrator looked to whether any of the dischargees had performed isork that night or expressed a willingness to management to do sot Arbitrator's Decision at pp. 21 and 25 35. After that, the arbitrator essentially decided that because of the Union's admissions there was a prima fac ie case that all those discharged had failed to meet this test and that, as a result, the burden to prove otherwise had been shifted to the individual dischargees. Of the discharged pressmen, 13 attempted to meet this burden: the arbitrator found that only 2 of these did so successfully. The award thus upheld 95 of the 97 discharges. Ellis did not do any work after the initial five discharges. Under the test set forth above, and because of the prima facie case established by the Union's admissions, his discharge was found warranted and upheld The statutory issue before us cannot be resolved. however, by looking onls at whether Ellis did any work after the night shift began. We must also look at what else Ellis did after that point and whether it was protected. For the reasons explained infra. Ellis' failure to work was irrelevant to the issue iof whether his discharge violated Sec. 8ay( I) and (3). The Spielherg doctrine is appropriately applied "only where the resolution of the contractual issues is congruent with the resolution of the statutory unfair labor practice issues.- Baonard v. N.L R. B. 505 F 2d 342, 346 C(' A.) C.. 1974) Here. these issues were not congruent. Thus, contrary to the concurrence, we cannot defer to that portion of the award involsing Ellis and the four other men-in-charge had been fired. Ellis im- mediately went to the chapel chairman's office where Fowler, the Union's president, who was at home recuperat- ing from an operation, called him. Fowler had just spoken to Frank McKinney, the Company's general manager, and Mike McKinney, the Company's labor relations manager. Frank McKinney had told him that the pressmen would be fired if the strike were not stopped; Mike McKinney had urged Fowler to do what he could to get the men back to work.2 6 Fowler called Ellis to repeat Frank McKinney's warning and to tell him to get the men to go to work. Ellis apparently spoke next to Baird, an assistant to the general manager. who had just arrived at the plant. Baird told Ellis to grieve the discharges, suggested a meeting "up- stairs" to talk about them, and also warned Ellis that the pressmen would be fired if they did not go to work. When Ellis said that the strike was not a union action, Baird re- plied that the men would go to work if Ellis told them to do so. The conversation ended, and Ellis started towards the machine shop.2' About 9:30, Ellis told Bailey, an assistant chapel chair- man, to get the men together for a chapel meeting around the machine shop area. At this meeting, Ellis told the press- men what the consequences of the strike would be and that the Union was ordering them to return to work; they ig- nored him. Ellis then rejected a motion that a strike vote be taken, saying the Union would not be party to any strike. The meeting lasted about 10 minutes. 28 About 9:45, Frank McKinney addressed about 85 or 90 of the pressmen. McKinney ordered them to go to work, paused a few seconds, repeated his order, and then after a 10- to 15-second pause. discharged them and ordered them out of the building. From the time of the initial five discharges until Frank McKinney gave his order to return to work, Ellis spoke to McCoy regarding the discharges of the men-in-charge, re- ceived instructions from Fowler to get the members to go to work, spoke to Baird about a possible settlement, and held a chapel meeting to order an end to the strike. As a result, Ellis did not work during this 40- to 45-minute pe- riod. For the reasons stated below, however. we believe that his activities during this period were protected: his failure to work during these 40 to 45 minutes therefore would not establish just cause for his discharge. Section IOK of the contract provided that the chapel chairman "shall attempt to adjust all grievances or disputes arising between the foreman and the employees of the pressroom." McCoy w.as apparently serving as acting chapel chairman that night, but had been ordered to leave the building after his discharge and therefore could not handle his own grievance, or those of the four other men- in-charge discharged with him at the beginning of the shift. Ellis, as the UCnion's vice president, and, as the highest ranking officer present, was the logical choice to assume 2 he sibsiance of Fowler' consersltirn with the NMcKinnei, is taken the Icstnlions *of Mi ke kllsis. lneN Baird testified o nlt at tIc :rbitratlton hearing The substance of this culn' ers.silrli is t.aken froit that tetilnltorls 2 Ithe subhsutnce of whst h~appencd i1 thi meeting is taken front Ellis' testis is,. Ihe ( onlpan', did nili dispute his credibility as to wha; was said at thri I llc ling 871 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McCoy's duties under the contract as chapel chairman; acting within that capacity, Ellis had a Section 7 right to use working time to spend with McCoy, and also with Baird, as the Company's representative. Fowler's call to Ellis would also have to be treated as an integral part of the contract's section 10K dispute resolution process; Fowler was, after all, the ultimate authority with respect to the Union's stand regarding the discharges and the strike. Holding the chapel meeting also was protected. Under section 4C, the Union's officers, agents, and representa- tives could not sanction any strike. Despite this section, McCoy, an acting chapel chairman, and Gloyd, the chair- man of the joint standing committee,30 appear to have joined the strike at its start; they were two of the men-in- charge fired after the shift began for allegedly refusing to go to work. Fowler's instructions to Ellis, however, indi- cated that the Union wanted the strike stopped. By or- dering the members to go to work and also disavowing the strike at the chapel meeting, Ellis made clear that the Union did not sanction the strike, despite the participation of McCoy and Gloyd. Ellis took this step, at Fowler's in- structions, to satisfy the Union's obligations under section 4C; his conduct at this meeting would, for that reason, constitute protected activity under the Act.31 There are thus primafacie grounds for finding that Ellis' conduct during the strike was protected. That part of the award that upholds his discharge is therefore repugnant to 29 (Cameron Iron CW orks& Inc.. 194 NLRB 168 11971). This right is suhbjectt to reasonable and necessary limitations. 30 The joint standing conmmittee, consisting of two representatives each from the Company and the t'nion was established under the contralct to handle grievances 3 See Pontiac Motors Division. General Motors Corporation. 132 NI.RB 413 (1961) If this were not protected activity. the result would be a Hobson's choice: by holding the meeting. Ellis risked discharge for engag- ing in an unprotected strike; b, not holding a meeting. Ellis risked exposing this Union to liability for the strike because of McCoy's and Gloyd's earlier participation. We also take note of a telephone conversation Mike Mc- Kinney and Ellis had earlier that evening. At the Board hearing. McKinney testified that during this conversation Ellis said. "I'm mad and the men are mad. This transfer of Bowlen is the last straw. [Bowlen was first transferred before he was fired.) I can't control these men down here anr more. There is nothing that canl be done until you people start abiding by the terms and conditions that you have agreed to." (Emphasis supplied.) By McKinnev's own admission. Ellis did not threaten the Company with a union-led strike. but only gave an accurate account of an explosive situation. We cannot treat these remarks as a threat to) violate the no-strike clause. Ellis vas demanding the revocation of transfer that he thought violated the crontraci's bidding procedure. Such a demand does not amount to a repudiation of the contractual grievance procedure To hold otherwise would leave unprotect- ed employee complaints aimed at protecting contractual rights We also note that the arhitrator's statement regarding Ellis' leadership role during the strike, quoted by the majority, is contradicted bs the arbitrator's subsequent findings. First. the award found the strike was a spontaneous response to Bowlen's discharge and did not result from pres- sure by the Union's leaders (Arbitrator's Decision at pp. 19 20.) Second. the arbitrator credited Ellis' testimony about his attempt to stop the strike at the chapel meeting (Arbitrator's Decision at pp. 20. 23) and relied upon this testimony to support his findings upholding the discharges of certain indi- vidual pressmen. (Arbitrator's Decision at 31, 32. and 33.) Further. the arbi- trator credited union witnesses who testified that Ellis directed them to start work. (Arbitrator's Decision at 15.) flis statment by the arbitrator therefore renflected a conclusion that was drawn from testimony regarding the conser- sation Ellis had with Mike McKinney before the strike began and which is described above. For the reasons also stated above. however. Ellis' remarks during this conversation were protected and therefore could not be used as a basis for concluding that Ellis intended to violate the no-strike clause the Act. For the same reason, a breach of section 4C can- not be attributed to the Union through Ellis. The arbitrator, however, also found that at least two or three union representatives, including Gash, the Union's secretary-treasurer, participated in the strike. A breach of section 4C might arguably be attributed to the Union through them. Ellis' attempt to stop the strike and the Union's efforts the next day to achieve the same end,32 however, rebut any inference that the Union, through these lower ranking officers or representatives, condoned the strike. As there is no evidence to show Ellis had either authorized or induced the strike, no breach of section 4C by the Union can be found. 33 The Company's May 5 re- scission therefore violated Section 8(a)(5) of the Act. We must, as a result, also reach the issue of whether the 44 strikers who were not discharged are entitled to reinstate- ment as unfair labor practice strikers. As indicated, the Company's May 6 letters urged these strikers to return to work; they also stated that permanent replacements for the strikers would not be sought until May 9 at the earliest.34 The letters therefore condoned the conduct of these strikers and amounted to a waiver of the Company's right to discharge or refuse to reinstate them because of such conduct until at least May 9.35 Two days before May 9, at the May 7 executive board meeting, how- ever, the Union's officers for the first time called a strike. According to Ellis, the strike was declared to protest the Company's rescission of the Union's contract.36 The strik- ers whose conduct had been condoned continued the strike, but now as a protest against the May 5 rescission. As these approximately 44 strikers retained employee status as of May 7, they did not lose the right to strike to protest the Company's unlawful rescission.3 7 For the reasons stated above, we would not defer to the arbitrator's award with respect to Ellis' discharge and 32 See fn 14. supra. 3 See. generally, United Stares Steel Corporation v. United Mine Workers of America. 519 F.2d 1249 (C.A 5, 1975). The Company also argues that the rescission was justified because the Union violated par. 2 of the memoran- dum of understanding of December 1972 when Ellis failed to fine or other- wise discipline the May 3 strikers. (See fn. 20, supra.) The Administrative Law Judge. however, refused to allow this memorandum and the memoran- dum of February 1973 into evidence after the Union objected to their ad- mission on the ground that they were no longer binding. We would affirm this ruling to the following extent. The Union violated sec. 4C of the con- tract only when it or its officers, agents, or representatives authorized, en- couraged. induced, oresanctioned a stnke. This clause significantly limited the Union's liability; its failure to discipline members who violated the no- strike rule did not amount to X breach of sec. 4C. For this reason, we believe sec. 4C of the contract and par. 2 of the 1972 memorandum were inconsis- tent. Because of this inconsistency. we also find that sec. 4C, which was negotiated after the memorandums were signed, necessanly rescinded par. 2 of the memorandum of understanding of December 1972, as reaffirmed by the memorandum of understanding of February 1973. See Bechtel Corpora- tion v. Local 215/ Laborers International Union of North America, 544 F.2d 1207 (C.A. 3, 1976). Assuming par. I of the 1972 memorandum was still binding, we would find that the Union satisfied that paragraph's pledge to try to stop the strike by "all means reasonably possible." See fn. 16, supra. t 5Cf. Raleigh Water Hearer Mfg. Co.. Inc. 136 NLRB 76 (1962). i6 Ellis testified to this fact at the arbitration hearing. ' If the strikers who were not discharged could have returned to work on May 7 and then walked out again on May 8 to protest the rescission, they would have without question become unfair labor practice strikers. Under the circumstances. it would be ludicrous to require that they first return to work in order to regain the right to strike over an unfair labor practice. 872 KANSAS CITY STAR COMPANY would also find that the Company's May 5 rescission of the Union's contract violated Section 8(a)(5). We would fur- ther find that the 44 strikers discussed above were unfair labor practice strikers. 873