Wagoner Transportation Co.

452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wagoner Transportation Company and Earl Puckett. Case 7-CA-6591 June 30, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On November 8, 1968, Trial Examiner Maurice S. Bush issued his Decision in the above-entitled case, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision . Thereafter, the Respondent filed exceptions and the General Counsel filed limited cross-exceptions to the Decision and briefs in support thereof. The General Counsel also filed an answering brief. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, cross-exceptions and briefs, and the entire record in this case,' and hereby adopts the findings, conclusions , and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Wagoner Transportation Company, Muskegon, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified.' 'As the record herein, including the exceptions and briefs, adequately present the positions of the parties, the Respondent's request for oral argument is hereby denied. 'Add as the second indented paragraph of the Appendix the following WE WILL. notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. TRIAL EXAMINER'S DECISION MAURICE S. BUSH, Trial Examiner: The truck drivers of Respondent Company, a motor carrier, engaged in an unauthorized strike of less than 24-hour duration in the month of January 1968, contrary to the terms of their collective-bargaining agreement with Respondent. Respondent discharged driver Earl M. Puckett for allegedly "encouraging a refusal of Wagoner Transportation Company employees to report to work" after the wildcat strike had started in violation of the terms of the collective-bargaining agreement and of his duties thereunder as job steward. Respondent similarly discharged driver Robert L. Burns for both instigating the unauthorized strike and encouraging a refusal of Wagoner employees to report to work after the strike had started. These discharges were upheld by a duly constituted employer-employee committee under the grievance procedures of the collective-bargaining agreement. The principal issue is whether Puckett and Burns were discriminately discharged in violation of Section 8(a)(3) of the National Labor Relations Act for their alleged union activities in connection with the strike. As the right to strike is a protected activity unless waived by a collective-bargaining agreement , the principal issue in turn involves the question of whether the statutory right to engage in strikes of less than 24 hours' duration has been reserved to Respondent's employees under the terms of the collective-bargaining agreement. A further related issue is whether the awards of the employer-employee committee upholding the discharges of Puckett and Burns are binding upon the Board under the rule established in Spielberg Manufacturing Company, 112 NLRB 1083. The final issue is whether Respondent is in violation of Section 8(a)(1) of the Act by reason of its threat some hours before the unauthorized strike commenced that it would fire any drivers who engaged in the work stoppage. The complaint herein was issued on June 26, 1968, pursuant to a joint charge filed by Earl Puckett and Robert L. Burns (and others not here directly involved) on February 15, 1968, and served the same day on Respondent. The case was heard at Muskegon, Michigan, on July 31 and August 1, 1968. Briefs were filed by General Counsel and Respondent on August 30, 1968. These have been carefully reviewed and considered. Upon the entire record and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent Wagoner Transportation Company, a corporation organized under the laws of the State of Michigan, is a motor carrier engaged in the transportation of liquid bulk petroleum products in interstate and intrastate commerce from terminals in both Muskegon and Napoleon , Michigan . The Muskegon terminal is the only facility involved in this proceeding which also serves as Respondent's principal office and place of business. During the fiscal year ending September 1, 1967, a representative period, Respondent performed services valued in excess of $500,000 which were performed in the furnishing of transportation services of commodities in interstate commerce for various enterprises located in states other than the State of Michigan . Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 177 NLRB No. 22 WAGONER TRANSPORTATION CO. 453 II. THE LABOR ORGANIZATION INVOLVED Local No. 527, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America (Ind), hereinafter called the Union , is a labor organization within the meaning of Section 2(5) of the Act. Ill. BACKGROUND AND ALLEGED UNFAIR LABOR PRACTICES Respondent at all times here pertinent operated under an industrywide negotiated collective-bargaining contract entitled "Central States Area Tank Truck Agreement," hereinafter called the Master Agreement, which bears the signature of Respondent as the Employer and the Central Conference of Teamsters, Tank Truck Negotiating Conference, and the Union as the representatives of Respondent's employees. The term of the Agreement was for the period November 15, 1964, through November 14, 1967, and its provisions make it applicable to a territory consisting of 12 North Central States, including the State of Michigan. The Master Agreement was modified in certain respects, not here material, by an agreement known as the "Michigan Rider" which was executed on or about the same time as the Master Agreement. The two agreements were further modified by a supplemental agreement dated February 3, 1965, applicable only to Respondent and Local No. 527. The principal intent of the latter was to provide some variations from the hourly rates of pay called for in the Michigan Rider as it applied generally to the industry in the State of Michigan. The Master Agreement under Article 43 provides for its automatic renewal on a year-to-year basis after its stated expiration date of November 14, 1967, "unless written notice of desire to cancel or terminate the Agreement is served by either party upon the other at least sixty (60) days prior to the date of expiration." (Emphasis supplied.) However, article 43 also provides machinery for the negotiation of "changes and revisions" of the subsisting Agreement's provisions where (a) both parties desire to continue the agreement and (b) neither has served a cancellation or termination notice on the other. Under the express provisions of Article 43, negotiations for such revisions of the existing Agreement may be initiated by either party through the service upon the other of a simple "notice at least sixty (60) days prior to November 14, 1967, . . . advising such party desires to revise or change terms or conditions of such Agreement."' Neither party to the Master Agreement exercised the right to cancel or terminate the Agreement by the required 60-day notice prior to its November 14, 1967, expiration date. However, the Union and the Central Conference of Teamsters served a timely joint notice on Respondent under date of August 24, 1967 (G.C. Exh. 7) 'The full text of art. 43 of the Master Agreement (G.C. Exh. 2, at p. 20) reads as follows: This Agreement shall be in full force and effect from November 15, 1964 to and including November 14, 1967 and shall continue from year to year thereafter unless written notice of desire to cancel or terminate the Agreement is served by either party upon the other at least sixty (60) days prior to date of expiration. Where no such cancellation or termination notice is served and the parties desire to continue said agreement but also desire to negotiate changes or revisions in this Agreement , either party may serve upon the other a notice at least sixty (60) days prior to November 14, 1967, or November 14th of any subsequent contract year , advising that such party desires to revise or change terms or conditions of such Agreement, that they desired "to negotiate changes or revisions" in the Master Agreement and the "riders and supplemental contract pertaining thereto for the contract period commencing November 15, 1967."2 (Emphasis supplied.) The notice further stated that it was being forwarded to Respondent "in compliance with Article 43" of the Master Agreement.' In a further notice under date of September 29, 1967, the Union notified Respondent that the particular provisions of the Master Agreement for which it desired to negotiate "changes or revisions" were "the clauses relating to hours, wages and working conditions." Pursuant to the Union's request for such changes and revisions, negotiation meetings were held by the Employees and the Employers through their respective representatives. Out of these meetings there evolved a new proposed Master Agreement and a new proposed Michigan Rider for submission to the various constituent local unions for approval or disapproval by ballot. These were preliminarily presented solely for informational purposes and discussion to the membership of Local No. 527 at a mass meeting held on Saturday, January 13, 1968, at Muskegon.' 'It is noteworthy that the underscored portion of the modification notice quoted above is expressive of the intent of the Central Conference of Teamsters and the Union to allow the automatic renewal clause of the Master Agreement to take effect upon the expiration of the original term of the Agreement on November 14, 1967. 'General Counsel, relying on Delux Metal Furniture Company, 121 NLRB 995, contends that the Union' s modification notice "had the effect of forestalling automatic renewal" of the Master Agreement. If this were true, then the Company and the Union would not have been under a collective-bargaining agreeement at the time the strike here in question took place and thus Respondent's discharge of Puckett and Bums for encouraging the strike and Respondent 's threats of discharge to its drivers if they engaged in a work stoppage, would be clearly violative of the Act. The record, however, does not lend itself to this simplistic solution, but on the contrary supports Respondent's contention that the strike took place at a time when the Master Agreement, which forbade unauthorized strikes, was in full force and effect. From this premise , Respondent argues that it had the right under the Master Agreement to fire Puckett and Bums for encouraging an unauthorized strike and to make the threats in question The Board decision in the Delux case, supra. on which General Counsel relies, holds (at p. 1003) that, "When a contract contains separate modification and automatic renewal clauses each of which provides for notification at approximately the automatic renewal date . . , the notice will be treated as one to forestall automatic renewal ." The Delux case, however, expressly states an important and only "exception" to this general rule in situations "where the contract specifically provides that if notice pursuant to the modification provision is given, the contract will nevertheless renew, and the notice is specifically made pursuant to such a modification clause." (Emphasis supplied ) In the Examiner's opinion, art 43 of the Master Agreement falls squarely into this exception to the general rule of the Delux decision. The above-quoted language of art 43 clearly shows that a modification notice may be served only "where (a) no such cancellation or termination notice is served and (b) the parties desires to continue said Agreement but also desire to negotiate changes or revisions in this Agreement . " (Letters (a) and (b) supplied ) As found above, neither party to the Master Agreement served upon the other the required cancellation or termination notice Moreover, as heretofore noted the joint modification notice sent by the Union and the Central Conference of Teamsters under date of August 24, 1967, specifically refers to their desire to negotiate changes and modifications for the "contract period commencing November 15, 1967 " (Emphasis supplied.) Thus the modification notice plainly and affirmatively stated the Union's intention to continue under the Master Agreement pursuant to the Agreement's automatic renewal clause, beyond the Agreement's then expiration date of November 14, 1967. Under all of these facts of record , the conclusion is inescapable that the Master Agreement in all of its clauses including its bar of unauthorized strikes, was still in full force and effect when the brief wildcat strike of Respondent's drivers took place in January of 1968. 'The membership of Local No. 527 consists of the Employees of a 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The following day, on Sunday morning, January 14, the new Master Agreement and Michigan Rider were presented to Respondent's employees for balloting at their regularly scheduled union monthly meeting for that day. The meeting was presided over by Robert Rosencrants, the Union's full time Business Representative. Some 17 or 18 drivers, including job steward Puckett and driver Burns, and 2 or 3 mechanics were in attendance at the meeting out of the approximate 33 drivers and 10 mechanics employed by the Company at its Muskegon terminal! Also in attendance at the meeting was Stephen Schultz, a member and chairman of the Central Conference of Teamsters Tank Truck Negotiating Committee which had negotiated the new proposed Master Agreement and Michigan Rider. Rosencrants, Schultz, and Puckett recommended that the meeting ratify the two agreements. The only stumbling block at the meeting to the ratification of the Master Agreement and Michigan Rider was the Rider's retroactive pay provision. The drivers believed the provision called for too little backpay to be satisfactory. After a bitter discussion on the subject, the drivers refused to vote on the matter of ratifying the new proposed Master Agreement and Michigan Rider on the technical ground that notice thereof had not been posted for the prescribed 3-day period prior to the meeting although the documents in draft form had not been received in sufficient time to allow for such posting. The retroactive pay clause in the proposed Michigan Rider called for backpay of 15 cents for every hour worked for the retroactive period November 15, 1967, to January 13, 1968. The proposed Rider also had a much desired clause giving the employees overtime pay after a 40-hour week to replace the overtime after a 48-hour week they were then receiving, but this liberalized overtime was not retroactive. Most of the drivers wanted a clause making the new overtime provision retroactive to November 15, 1967, in lieu of the Rider's proposal of straight backpay of 15 cents per hour for all hours worked during the retroactive period, as the former would give them a substantially larger amount of backpay due to the fact that Respondent's drivers work a twelve hour shift. As the meeting progressed, the mood of the drivers became more angry over the retroactive pay offered by the new Rider. A motion to strike was made. Although there is no direct testimony on the purpose of the strike motion, the record carries the inference that the purpose of the motion to strike was to seek a more favorable retroactive pay provision . Business representative Rosencrants as chairman of the meeting spoke out strongly against the motion and declined to accept it because it called for an unauthorized strike. Puckett, one of the alleged discriminatees, in his capacity as job steward, vigorously joined Rosencrants in opposing the motion. He told the drivers that the strike motion was illegal and warned them that a strike could lead to discharges for those who participated. He further told the drivers that the only matters before them for action were the proposed Master Agreement and Michigan Rider and urged the drivers to vote on these documents, whether it be for them or against them. The number of Employers in the Muskegon area, including the Respondent 'The Board has certified a unit of employees in the employment of Respondent as follows "All truck drivers and garage employees at the Employer's terminal at Muskegon and Napoleon , Michigan, excluding office clerical employees, dispatchers, administrative employees, professional employees, guards and supervisiors as defined in the Act." other alleged discriminatee , driver Burns, on the other hand, by his own admission vehemently and enthusiastically supported the strike motion which he had seconded. The spirit of the meeting, as reported by Burns, was such that nothing could have deflected the drivers from voting to strike. Upon the insistence of the drivers, the motion which had been seconded by Burns was put to vote about 10 a.m. by secret ballot and was carried. Puckett did not vote because he deemed the motion to strike illegal . Burns voted for the strike motion. The meeting at which the strike vote was taken took place at a time when no work was under schedule by Respondent. By stipulation, it is established that Respondent had not scheduled any work for drivers or mechanics at its Muskegon terminal from 3:30 p.m. Saturday, January 13, 1968, until midnight Sunday, or more precisely until 12:01 a.m., Monday, January 15.` The drivers did not begin their strike until about midnight Sunday in order to have it coincide with Respondent's resumption of operations at that time. Picketing commenced at that time. Burns participated in the picketing although he was scheduled to be on vacation that week. As a result of the strike, there was a complete stoppage of work. Puckett was not scheduled to work on the day the strike started, but nevertheless went to the terminal where he unsuccessfully tried to persuade the men on the picket line to report to work. After the vote to strike had been taken and before the meeting adjourned, the drivers selected driver Burns, in the temporary absence from the meeting room of Business Representative Rosencrants and job steward Puckett, to notify Respondent's secretary and attorney, Mr. John P. Boeschenstein , of the strike vote. Burns at about 10:15 a.m. telephoned Boeschenstein that the drivers had voted to strike that day at midnight.' Boeschenstein, surprised, inquired incredulously, "A strike without discussion?" Burns' testimony shows that the objective of the strike vote was to get Boeschenstein who has handled Respondent's labor relations for the past 12 years, to come and talk to the drivers about the retroactive pay clause. The meeting adjourned in pandemonium without the appearance of Boeschenstein shortly after Burns had spoken to him. Immediately after receiving the word about the strike from Burns , Boeschenstein notified Respondent's virtually sole shipper-customer, American Oil Company, about the impending strike and advised that the strike would start that night at midnight. A second meeting of Respondent's employees was called the next morning, Monday, January 15, at the Union Hall while Respondent's terminal was being picketed. This meeting, unlike the strike meeting, was attended by all of Respondent's Muskegon terminal employees . At or about the time the employees were assembling at the Union hall, Puckett met with `Respondent's operations are devoted almost solely to one customer, Amencan Oil Company which it has served since 1948 American Oil utilizes Respondent's transportation services Mondays through Fridays with service on Saturdays as requested , and with emergency services only on Sundays The shipper did not require any emergency services from the Respondent on the Sunday in which Respondent's drivers decided to strike It is found that Respondent did not schedule any work for its drivers and mechanics from 3 30 p .m Saturday, January 13 to midnight Sunday, January 14, 1968, because American Oil, as its chief customer, did not require or request any transportation services in that period. 'Boeschenstein in his testimony stated that Burns had told him the strike would start at midnight WAGONER TRANSPORTATION CO. Boeschenstein at Puckett's request at the terminal at around 9 a.m. Puckett requested and urged Boeschenstein to meet with Respondent's employees at the Union hall "to help us straighten this thing away." By this he meant the controversy over retroactive pay that led to the strike. The credited testimony of Puckett shows that Boeschenstein agreed to do this as soon as he had an opportunity to have a discussion with the terminal's Operations Manager, Olin Seymour. After the employees had waited for Boeschenstein for more than an hour and were becoming irritable and impatient, Puckett telephoned Boeschenstein at the terminal at about 10:45 a.m. that the men were waiting for him to talk to them. Boeschenstein told Puckett he would not meet with the employees until they went back to work, using the phrase, "No work, no talk, until back to work." Puckett reported the position of the drivers and mechanics to be, "No contract, no work."" In the ensuing telephone conversation, Boeschenstein, according to his credited testimony, reminded Puckett of a number of concessions the Company had made to its drivers and accused Puckett and some of his friends of "keeping the Company in a constant state of turmoil as well as the majority of our employees . " Boeschenstein's testimony shows that Puckett heatedly replied that "he was not behind this action [strike], that he himself had counseled these people not to take action, [and] that he was doing everything he could to get these people back to work " Boeschenstein's testimony also shows that Puckett left the impression with him that he (Puckett) was powerless to stop the strike. Boeschenstein further testified that Puckett in the same conversation, apparently in pleading with Boeschenstein to speak to the assembled employees at Union Hall, told him that, "we aren't far apart on negotiating something better than the Michigan Rider negotiated by the International." Puckett vigorously denied that he made this statement to Boeschenstein, but his testimony under cross examination by Boeschenstein (see pages 184-186 of the transcript) supports an inference and the conclusion that he made the statement. For this reason and also by reason of demeanor factors, the Examiner credits the testimony of Boeschenstein that Puckett made the remark in question to him. The question of whether the remark can be interpreted as one "encouraging a refusal of Wagoner Transporation Company employees to report for work after midnight January 14, 1968," the reason given by Respondent for Puckett's discharge, will be determined in the "Discussion and Conclusions" below. Puckett's above related telephone call to Boeschenstein was made in the presence of Business Representative Rosencrants. When the assembled employees in the Union hall were told that Boeschenstein refused to come to the Hall to talk to them, they asked Rosencrants to telephone Boeschenstein who when called again declined to speak to the employees until they voted on the Michigan Rider which up until that time they had declined to do, as heretofore noted. When the results of Rosencrants' unsuccessful talk with Boeschenstein were reported to the employees they quickly voted by majority vote to accept 'This attributed and credited remark of Puckett is based on the testimony of Boeschenstein . Puckett when asked under cross examination by Boeschenstein if he did not make such a remark to him, replied that he didn't remember This denial, if it can be characterized as such, is not credited Driver Burns' testimony shows that the position of the drivers was indeed "No contract , no work." But it should be noted that the portion of "No contract, no work" was not Puckett's personal position as he was opposed to the work stoppage. 455 the Master Agreement and Michigan Rider and to return to work.' Rosencrants reported this by telephone to Boeschenstein at about noon that day (Monday) and in reply to his request as to when the employees should report to work, Boeschenstein told him he would have the Company's Operation Manager Seymour get in touch with him on this. Somewhere between 1 and 3 p.m., Seymour issued instructions that the mechanics were to report to work at 10:30 p.m. that day and the drivers at midnight that same day (Sunday). These were regular reporting times for the mechanics who worked in three shifts and for the drivers who worked a two-shift day. As the employees had called off the strike at about noon time (Monday, January 15), the reporting time given to them by Seymour to report to work entailed a delay of 10 to 12 hours before they could resume working. Seymour's reasons for the delay was the desire to avoid an overlapping of the various shifts of mechanics and drivers which would be entailed in calling employees to work at times other than their regular starting times and the necessity to warm up the trucks before they could be sent out due to the severe cold winter weather that weekend. Respondent's employees stopped their picketing Monday noon (January 15) immediately after the meeting in which they had voted to accept the Master Agreement and Michigan Rider and to return to work. As the employees had begun their work stoppage or strike at 12:01 a.m. Monday (or more loosely speaking at midnight Sunday) and ended the strike at noon that same Monday, they were engaged in work stoppage of approximately 12 but not exeeding 13 hours." Some 7 hours before the strike started, Respondent's Operation Manager Seymour on instructions from Boeschenstein called employees Robert Leverence, John Peoples, Robert Shavalier, and Archie Baird and told them that "if any one doesn't show up for work Monday who is scheduled to work Monday [the day the strike was to start] and doesn't have a doctor's certificate he would be fired."" Seymour testified that he made these threats "due to the fact this was a wildcat strike." In the morning of January 15 during the course of the strike, Boeschenstein sent telegrams to the Local and to the Michigan Tank Truck Committee inquiring into the status of the work stoppage. In the midafternoon of the same day after the strike had ended, Boeschenstein received a telegraphic notification from the Local and the Michigan Truck Committee that the strike had not been authorized. Puckett reported for work as scheduled': at 6 p.m. Tuesday, January 16, and worked his usual 12-hour shift. 'Burns was in the minority voting "No." "Although the vote to engage in a stoke was taken at about 10 a.m. Sunday , January 14, 1968, it is evident that the strike or actual work stoppage could not and did not start until 12.01 a.m Monday, January 15, when the picketing began , due to the fact that the Company had not scheduled any operations from 3.30 p.m. Saturday, January 13, until the following Monday at 12 01 a.m Obviously a work stoppage cannot in any reality start during a period in which an Employer has not scheduled any work. "A stipulation by counsel shows that Seymour used the phrase "would fire" in his threat but Seymour subsequently testified that he used the word "might fire." This difference is immaterial because the essential issue with respect to the threat is whether Respondent had a legal right to make such a threat under its collective-bargaining agreement , to employees planning to engage in a wildcat stoke. If Respondent did not have such right, either version of the threat would constitute a violation of Sec. 8(a)(1) of the Act. "Puckett had not been scheduled to work during the period encompassed by the stake. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Before the start of his next shift he was discharged by a letter dated January 16. The letter gave the following reasons for his discharge: Encouraging a refusal of Wagoner Transportation Company employees to report for work after midnight January 14, 1968 with knowledge the refusal to report for work was unauthorized by Teamsters Local 527 or the International Union. Burns was also discharged by letter dated January 16. The reasons stated in the letter for his discharge are as follows: Instigating a refusal of Wagoner Transportation Company employees to report for work midnight January 14, 1968, and encouraging a refusal of Wagoner employees to report for work after midnight January 14, 1968, with the knowledge the refusal to report for work was unauthorized by Teamsters Local 527 or the International Union. At the time of their discharge Puckett had 12 1/2 years of continuous service with Respondent as a driver and Burns had worked as a driver for the Company for a total of 18 years. In addition 3 other employees, mechanics Robert Shavalier and Richard Peoples, and driver L. Geistel were discharged by Respondent at or about the same time for their connection with the strike. Shavalier's discharge letter dated January 16, 1968, states that he was being discharged for: Instigating a refusal of Wagoner Transportation Company employees to report for work midnight January 14, 1968, with the knowledge the refusal to report for work was unauthorized by Teamsters Local 527 or the International Union. Although the contents of Peoples' and Geistel's discharge letters are not of record, from the record as a whole it is found that they were discharged for the same reason as stated in Shavalier's discharge letter. Respondent grounds the discharge of Burns on the provisions of the Master Agreement outlawing unauthorized strikes and giving an Employer the right to discharge employees engaging in such unauthorized strikes. Respondent bases the discharge of Puckett on the same gound but also contends that he was discharged for violating his duties as job steward under the Master Agreement. Briefly stated, the Master Agreement, under article 8, section 8.1, entitled "Grievance Machinery and Union Liability," states "that there shall be no strike . . . without first using all possible means of a settlement, as provided for in this Agreement, of any controversy which might arise." Section 8.1 then sets forth in detail the appeal procedure for dealing with grievances. This appeal procedure was not invoked by any of the employees dissatisfied with the retroactive pay provisions of the new proposed Michigan Rider prior to the strike. Section 8.2 of article 8 of the Agreement gives the Employer certain rights of discipline in the event of an unauthorized strike. In the first 24 hour period of an unauthorized strike, the Respondent is given "the sole and complete right of reasonable discipline short of discharge . (Emphasis supplied.) After the expiration of the first 24 hours of an unauthorized strike the Respondent under the Master Agreement has "the sole and complete right to immediately discharge" any employee participating in the unauthorized strike. Another sentence of section 8.2 imposes the duty on the Tank Truck Committee upon the request of an employer to "declare and advise the party making such request by telegram whether the Committee has authorized any strike or stoppage of work." It was under this provision that the Michigan Tank Committee sent its heretofore mentioned telegram to Boeschenstein in the afternoon of January 15 advising that the work stoppage of Respondent's employees was not authorized. Counsel for General Counsel at the trial of this proceeding expressly refrained from claiming that the strike here under consideration was an authorized strike. There is no genuine issue in the case as to whether the strike was in fact unauthorized as claimed by Respondent and admitted by both the Local and the Michigan Tank Truck Conference. The record compels the conclusion and the Examiner finds that the strike was unauthorized. The duties of job stewards, as ,applicable to Puckett, are set forth in article 3 of the Agreement under the title of "Stewards." These are stated in both positive and negative terms. The positive duties imposed on the job steward are to present grievances to the Employer, to collect dues, and to transmit messages from the Local Union. Of these three duties, the only one here relevant is the duty to present grievances. In negative terms, article 3 states that, "Job stewards and alternatives have no authority to take strike action, or any other action interrupting the Employer's business, except as authorized by the official action of the Union." The particular phrase in this sentence upon which Respondent relies is that prohibiting a job steward from taking "any other action interrupting the Employer's business." Respondent contends that an alleged effort by Puckett to negotiate a settlement while the unauthorized strike was in progress violated the prohibition against taking "other action interrupting the Employer's business." The final sentence of article 3 reads in part that, "The Employer ... shall have the authority to impose proper discipline, including discharge, in the event the shop steward has taken unauthorized strike action, slow down, or work stoppage in violation of this Agreement." A day or two after their discharges, Puckett and Burns and the other three employees who were discharged for their alleged part in encouraging the unauthorized strike, filed appropriate grievances challenging their discharges under the grievance procedure provided by the aforementioned article 8 of the Master Agreement. The grievances came on for hearing on February 7, 1968, at Detroit before the Michigan Tank Carriers Joint State Committee consisting of a panel of three union representatives and three employer representatives. The minutes of the Committee show that each of the dischargees appeared before the Committee and denied involvement in the unauthorized stoppage. Boeschenstein appeared before the Committee in behalf of the Respondent. His chief contention was that the strike was unauthorized, that it lasted more than 24 hours, that the five dischargees "had joined in the unauthorized work stoppage for a period in excess of 24 hours, thereby subjecting themselves to discharge" under the Master Agreement which as above noted gives an Employer "the sole and complete right to immediately discharge any employee participating in any unauthorized strike" after the first 24-hour period of such work stoppage. The minutes show that the Michigan State Committee, being deadlocked by a vote of three to three on the disposition of the case of the five grievants, referred the grievances to the Joint Area Committee for ultimate disposition under the procedure set forth in the Master Agreement. The appeal hearing of the five dischargees before the Central States Tank Truck Committee, hereafter called Area Committee, was held at Chicago on March 21, 1968. WAGONER TRANSPORTATION CO. 457 This committee was composed of a panel of four union representatives and four employer representatives , but the individuals serving on the Area panel were entirely different than the representatives who had served on the deadlocked Michigan Tank Carriers Joint State Committee panel of six at Detroit. The minutes of the Area Committee shows that the only grievant to appear before that Committee was Puckett. The testimony of Puckett and Burns in the present proceeding shows that none of the grievants other than Puckett appeared in person before the appeals Area Committee in Chicago because of financial inability to make the round trip from Muskegon to Chicago. Rosencrants appeared before the Area Committee in behalf of the Local and Boeschenstein in behalf of Respondent . The minutes of the Area Committee consists of about a page and a half, the greatest portion of which is entitled "Facts" under which there is a one page condensation of the several pages of the minutes of the deadlocked Michigan State Committee. The next portion of the minutes states the issue as follows: "Should the discharges be substantiated?" The final portion reads as follows: After full and complete discussion and after hearing all of the evidence presented in Case Nos. 150, 151, 152, 153 and 154 [involving the grievants] due consideration was given, and the following decisions were rendered: Case Nos. 150 & 152-The discharges of grievants Burns and Puckett are sustained. Case Nos. 151, 153 & 154-Grievants Shavalier, Peoples and Geistel are to be reinstated with full back pay, less earnings, if any, with full seniority and the Company to pay all health and welfare and pension contributions if not paid by another employer. Although the " Decision" of the Area Committee states that the Decision was rendered "after hearing all of the evidence presented," the Examiner finds that the Decision was made primarily on the basis of the minutes of the deadlocked Michigan State Committee as four of the five grievants made no appearance before the Area Committee at Chicago because of Financial inability as heretofore noted. Pursuant to the decision of the Area Committee, employees Shavalier, Peoples and Geistel were duly reinstated by Respondent to their former positions with appropriate backpay. Puckett and Burns as the Charging Parties herein are seeking reinstatement under the Act. The New Master Agreement (G.C. Exh. No. 5) was executed on January 31, 1968, and the New Michigan Rider (G.C. Exh. 6), on some unidentified date in April 1968. Each by its terms became effective retroactively as of November 15, 1967, and each runs for a term expiring on November 14, 1970. The pertinent provisions of the old Master Agreement relating to "Stewards" and "Grievance Machinery and Union Liability," as set forth or described above, are carried over intact into the New Master Agreement. It thus becomes immaterial whether the old or new Master Agreement is used in determining the issues in the case. Discussion and Conclusions Any discussion of this case must start with the question of whether the brief strike here involved was a protected activity notwithstanding the fact that the work stoppage by common concession was wholly unauthorized under the terms of the collective-bargaining agreement between the Union and the Respondent as reflected in their Master Agreement . However, although unauthorized strikes are outlawed by the Master Agreement , it is clear from the Agreement itself that the parties agreed that the extreme penalty of discharge would not be applicable to employees who participate in unauthorized strikes of less than 24 hours' duration , as the Agreement gives the Respondent as an Employer only the right to impose "reasonable discipline short of discharge" upon such employees. It is accordingly held that to the extent that the Agreement prohibited the Respondent from exacting the extreme penalty of discharge on employee -participants in wildcat strikes of less than 24 hours ' duration, such strikes are protected activities under the provisions of Section 7 of the Act which guarantees to employees the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection ." It appears obvious that this time-limited right was reserved to employees by the Union in the Master Agreement by the process of negotiation in recognition of the fact that unauthorized strikes do occur and by the desire of the Union to protect wildcat strikers from discharge until the Union has had at least a 24 hour chance to persuade the strikers to quit the strike and return to work. Once the strike exceeds 24 hours, the Employer is given the absolute right under the Agreement to discharge immediately any employee-participants in such more than 24 hour strikes. It was found above that the strike here under consideration lasted only 13 hours at the maximum. The fact that the strike lasted less than 24 hours can hardly be a matter of serious controversy. The record is stipulated that Respondent did not schedule any work for any of its drivers and mechanics at its Muskegon terminal between 3:30 p.m. Saturday, January 13 and midnight Sunday, January 14, 1968. In view of this it is evident that the employees by their strike motion on Sunday morning, January 14, could not engage in any work stoppage until midnight that same Sunday as no one was scheduled to work until then . Boeschenstein, Respondent's attorney and labor relations manager, admits that he was notified by driver Burns in behalf of the drivers that the strike would start at midnight Sunday . Boeschenstein's testimony further shows that immediately thereafter , he notified Respondent's practically sole customer-shipper that Respondent's employees would strike at midnight that same Sunday . The record is further undisputed that the picketing of Respondent's facility at Muskegon did not begin until around midnight that Sunday . In view of these undisputed facts, the Examiner finds Respondent's contention that "for all `practical' operation purposes, the wildcat strike commenced Sunday , January 14, 1968, approximately 10:50 a .m. when driver Burns notified Boeschenstein of the strike action taken at the Union hall that morning" and thus lasted for more than 24 hours, untenable. Respondent discharged driver Burns for his participation in the unauthorized strike. Burns openly admits that he was one of the instigators of the strike and that he encouraged his fellow drivers to stay in strike status after the strike had started. He voted for the motion to strike and against the motion to end the strike and to return to work . Nevertheless, since the unauthorized strike lasted less than 24 hours and since the Master Agreement in effect prohibits Respondent from firing employees who participate in such strikes and in effect reserves to employees the statutory right to engage in such strikes without incurring the extreme penalty of 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge although subject to other lesser discipline, the Examiner is of the opinion that Respondent's discharge of Burns for his participation in the wildcat strike is in violation of Section 8(a)(3) of the Act unless Respondent has a separate defense to Burns' discharge under the doctrine of Spielberg case, supra, on the ground that his discharge was upheld by the Area Committee of the Union and Employer Representatives under the Master Agreement's prescribed procedures. Consideration of the application of the Spielberg doctrine to Burns is deferred to a later portion of this Discussion. The factual situation with respect to Puckett's participation in the wildcat strike is quite different than that of Burns . The record is clear that Puckett unlike Burns was not an instigator of the strike. On the contrary, the record shows that Puckett was unalterably opposed to the strike and sought by every means available to him to head the unauthorized strike off. He spoke against the motion to strike at the Union meeting of Respondent's employees and even warned his fellow employees that they would be subject to discharge if they participated in the wildcat strike. He refused to vote on the motion to strike on the ground that the motion was illegal. While Respondent appears to admit these facts, it nevertheless persists in claiming it had the right to discharge Puckett for a number of reasons under the provisions of article 8, sections 8.1 and 8.2, and article 3 of the Master Agreement. These provisions, as heretofore noted, outlaw unauthorized strikes, give the Employer the right to discharge employees who engage in wildcat strikes of more than a 24-hour duration, and define the duties of job stewards. Insofar as Respondent claims that it discharged Puckett solely under the provisions of article 8 of the Master Agreement as it did in the case of Burns, the Examiner is of the opinion that Respondent's discharge of Puckett is likewise in violation of Section 8(a)(3) not only because the strike lasted less than 24 hours and that Respondent has no right under the Master Agreement to fire employees who participate in such brief but unauthorized strikes, but also because the record shows that Puckett in fact did not participate in the wildcat strike as had been the case with Burns. Respondent's principal justification for the discharge of Puckett derives out of Puckett's alleged duties as a job steward under article 3 of the Master Agreement and factually relates to remarks made by Puckett to Boeschenstein in the course of a telephone call Puckett made to Boeschenstein from Union hall on Monday morning January 15 following the strike vote of the previous Sunday morning. In that conversation Puckett tried to persuade Boeschenstein to meet with the assembled drivers at Union hall that same Monday morning to discuss with them the issues that brought on the wildcat strike. During the conversation, as heretofore found, Puckett said to Boeschenstein, "We aren't far apart on negotiating something better than the Michigan Rider negotiated by the International." Respondent contends that this was an effort on the part of Puckett "to negotiate" while the wildcat strike was in progress and that such an attempt to negotiate constituted "action prolonging the wildcat strike, interfering with and interrupting a resumption of employer operations when proposed by a union steward is forbidden by Article 3 thereby subijecting the Union steward to discharge by the Employer." ' "Respondent seeks to bolster this argument "by analogy" to the part Puckett was alleged to have played in settling an earlier wildcat strike by In view of this justification for the termination of Puckett, it is imperative to again note the contents of one of the paragraphs of article 3 containing limitations on the authority of job stewards. That paragraph states negatively that a job steward shall "have no authority to take strike action, or any other action interrupting the Employer's business , except as authorized by official action of the Union." As Respondent does not claim that Puckett had taken any strike action, the facts being quite to the contrary, Respondent as justification for Puckett's discharge relies only on that part of the quoted paragraph which prohibits a job steward from taking "any other [unauthorized] action interrupting the Employer's business." In this connection, Respondent's contention, restated somewhat more directly, is that Puckett in urging Boeschenstein to meet with the striking drivers in an endeavor to settle the retroactive pay issue was in effect engaging in an "action interrupting the Employer's business" by lending encouragement to the strikers to continue the wildcat strike while there was hope of getting something out of it. At the trial Boeschenstrin contended that this effort by Puckett to get him to negotiate a settlement of the wildcat strike lent itself to the "possibility that an inference" (tr. 209-210) might be drawn that Puckett was not in reality urging the drivers to call off the wildcat strike, but was using the strike as a mechanism to effect settlement. Such an inference is untenable because the record firmly establishes the fact that Puckett tried at all times to get the drivers to call off their unauthorized strike. Moreover, the record shows that the drivers not only paid no heed to Puckett's pleas to call off the strike but also ignored the efforts of the Union and the Central Conference of Teamsters to get the drivers back to work. Accordingly and from the record as a whole, it is concluded that Puckett in seeking to get Boeschenstein to talk to the assembled drivers on the matter of the retroactive pay feature of the new Michigan Rider in an effort to work out a solution of that problem did not in any way constitute "action interrupting the Employer's Respondent's mechanics (not the drivers as here involved) in December 1967 while that wildcat strike was still in progress As in the drivers' wildcat strike here involved, Puckett similarly played no part in mstigitmg the earlier mechanics' strike which in fact was commenced by a strike vote taken in his absence Once he heard about the strike action, Puckett did everything in his power to end the mechanics' strike and the next day succeeded in getting the mechanics back to work under an understanding Boeschenstein had with the employees' bargaining committee that something would be worked out to settle the demands of the mechanics on which negotiations had commenced prior to the strike, after they stopped their strike and returned to work Shortly after the strike ended a supplement to the old Michigan Rider was worked out to give the mechanics an acceptable compromise on their economic demands . Puckett as job steward worked with the employees' bargaining committee in attaining the supplement to the Michigan Rider for Respondent's mechanics The Examiner sees nothing in the conduct of Puckett in connection with his efforts to bring the mechanics strike to an end by participating in the settlement negotiations in contravention of his duties as a job steward under the Master Agreement , but on the contrary his conduct appears to have been in fulfillment of such duties It is noteworthy that Boeschenstein played the larger and more significant role in settling the mechanics' strike than did Puckett who in his initial attempts to stop the wildcat strike was told by the mechanics , "Tend to your own business, we're not listening to you." Respondent is not now in the position to claim improper conduct on the part of Puckett to an incident to which it was a major party . The Examiner regards the incident here under discussion largely irrelevant to the issues of whether Puckett's conduct in connection with the drivers' wildcat strike was such as to give Respondent the right to terminate his services under the "Job Steward" provisions of article 3 of the Master Agreement WAGONER TRANSPORTATION CO. business" on the part of Puckett. On the contrary, the Examiner finds that Puckett was performing one of his positive duties under article 3 of the Master Agreement in calling Boeschenstein's attention to the drivers' dissatisfaction with the retroactive pay feature of the then proposed new Michigan Rider due to the fact that article 3 specifically imposes the duty on job stewards of the "presentation of grievances to his Employer or the designated company representative." If this were not true, an Employer would be deprived of official notice from a duly designated plant representative of grievances which have caused a strike. The final sentence of article 3 of the Master Agreement states that the Employer has "the authority to impose proper discipline , including discharge, in the event the shop steward has taken unauthorized strike action, slow down , or work stoppage in violation of this Agreement." As the record fails to show that Puckett has committed any of these prohibited acts , it follows that he is not subject for discharge under the quoted sentence of article 3. The remaining four justifications by Respondent for Puckett's discharge are without merit and require only brief comment. In the first of these Respondent charges Puckett with, "Failing to FIRST use any means provided for in the Tank Truck Agreement [MASTER AGREEMENT] to attempt to settle (negotiate) the retroactive controversy as required by section 8 of the Area Agreement [Master Agreement] BEFORE the wildcat strike." (Capitalization, underscoring and parenthesis as in Respondent's brief.) Briefly restated, section 8.1 prohibits the initiation of strikes "without first using all possible means of a settlement" under the grievance procedures set forth in the Master Agreement. Respondent appears to argue that Puckett should have filed a grievance against the retroactive pay provision of the proposed new Michigan Rider prior to the meeting of drivers at which the strike motion was passed. This was obviously impossible as it was not known, as far as the present record shows, until the strike meeting took place that there was dissatisfaction with the proposed retroactive pay. It is conceded that the drivers had the right to reject the new Michigan Rider and then seek something better which would normally be reflected, if the efforts were successful, in a supplement to the Rider, such as the supplement (G.C. Exh. 4) to the old Master Contract here involved. Furthermore, it is doubtful whether the seeking of a supplement to a proposed contract would technically require initiation by means of a formal grievance under the Master Agreement. The second justification advanced by Respondent for the termination of Puckett was his failure as the Union's job steward "to notify any Wagoner representative any time Sunday, January 14, 1968 that unauthorized strike action had been taken at the Union Hall and picketing was to commence at midnight Sunday as required by Section 8.2 of the area agreement [Master Agreement]." While it appears that Puckett was perhaps remiss in not giving Respondent notice of the strike action and picketing on the Sunday in which the drivers voted to strike, the Examiner fails to find any requirement in the Master Agreement imposing such duties on a job steward. The important fact is that Respondent did in fact receive immediate notice of the strike motion and planned picketing from driver Burns who in the temporary absence of Puckett from the Union meeting hall was commissioned by the assembled drivers to give such notice to Respondent's labor relations manager, Boeschenstein. 459 Although the record is silent on this, it may be presumed that Puckett deemed it unnecessary to give Respondent a second notice of the strike action taken on the same day that Burns had already notified Boeschenstein of the strike motion. It is significant that Puckett got in touch with Boeschenstein at the opening of the very next day, Monday, to work out some solution for getting the wildcat strikers back to work. Respondent's third justification for the termination of Puckett is his alleged failure "to undertake every reasonable means to induce the Wagoner employees to return to their jobs after 11:40 Sunday when the first picketing began as required by Section 8.2 of the Area Agreement." Respondent has not detailed anywhere in its brief just what Puckett could have done to induce the Employees to return to their jobs; th e record shows that he did everything in his power to prevent the work stoppage; the record is also plain that the drivers simply ignored Puckett's pleas that they refrain from the work stoppage. Moreover, on the assumption arguendo, an assumption that has no basis in fact, that Puckett did not undertake every reasonable means to induce the drivers to return to work after the strike began, there is nothing in the Master Agreement that gives Respondent the right to fire him for such failure. Respondent's final justification for Puckett's discharge is that he allegedly continued "to `participate' in a wildcat strike after 24 hours as prohibited by Section 8.2 of the Area Agreement." This argument is wholly untenable, first, because the record fails to show any participation by Puckett in the unauthorized strike and, secondly, because the strike, as found above, lasted no more than 13 hours. Article 8, section 8.2, it will be recalled, does not give the Respondent the right to fire employee-participants in unauthorized strikes of less than 24 hours' duration, but gives the employer in such cases only the right to impose "reasonable discipline short of discharge." (Emphasis supplied.) From the above analysis it is found that Respondent had no factual basis for discharging Puckett under any of the prohibitory provisions of article 3 of the Master Agreement as he had not engaged in any of the acts prohibited to him as a job steward under the article. Puckett's action in eliciting the cooperation of Boeschenstein to meet with the striking drivers on the issue of the retroactive pay issue was in line with his duty to present grievances to management and obviously constituted a protected activity under the guarantees of Section 7 of the Act. There being no factual basis for Puckett's discharge under the provisions of article 3 of the Master Agreement, the Examiner finds that his discharge was in violation of Section 8(a)(3) of the Act unless Respondent is saved under the Spielberg doctrine from such finding by the award of the Employee-Employer Committee under the grievance provisions of the Master Agreement upholding Puckett's discharge. Briefly stated, the Spielberg case, supra, holds that the Board in the exercise of its discretion will give recognition to an arbitration award as a matter of policy for the purpose of "encouraging the voluntary settlement of labor disputes" where such an award "is not clearly repugnant to the purposes and policies of the Act." The Board, however, made it clear in the Spielberg case under a savings clause that it is not bound, as a matter of law, by an arbitration award and that it would not hesitate to disregard an award where it "is at odds" with the National Labor Relations Act. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Spielberg doctrine appears to be applicable only to awards made by an arbitrator or panel of arbitrators. The awards here in question were made by an Employee-Employer Committee under the grievance provisions of the Master Agreement. Although the Employee-Employer Committees called for under the grievance procedure of the Master Agreement are not designated or referred to as arbitration committee, the Agreement leaves no doubt that such committees are endowed with the power, with exceptions not here applicable, to settle disputes with the Finality associated with arbitration awards. ° This is evident from at least two provisions in the Master Agreement. Article 8, section 8.1(b), provides that where a Joint State Committee is "unable to agree or come to a decision on a case," as was true in the present case, the case is appealable to a Joint Area Committee. Article 7, section 7.4, of the Agreement provides that, "It shall be the function of the various committees above-referred-to [which includes the Joint Area Committee] to settle disputes which cannot be settled between the Employer and the Local Union ...... (Emphasis supplied.) Article 8, section 8.1(a), gives the Joint Area Committee, in an analogous situation, the "final decision in such disputes." At the opening of the hearing, counsel for General Counsel, after referring to the awards of the Joint Area Committee affirming the discharge of Puckett and Burns, stated, "I am not prepared to argue that this was not an arbitration." The brief filed by General Counsel assumes that the awards here involved were arbitration awards but argues for their nonrecognition under the saving clauses of the Spielberg case. The Union, it is evident, deems itself bound by the awards under the Master Agreement as it is not the Charging Party, the Charging Parties herein being the Earl Puckett and Burns as individuals and dischargees. The Examiner finds and concludes that the awards here in question are essentially arbitration awards and entitled to recognition as such in this procedure under the Spielberg case.The Examiner is of the opinion, however, that the arbitration awards here involved must be disregarded under the saving clauses of the Spielberg case because they are repugnant to the basic rights guaranteed to employees under Section 7 of the Act. One of these rights is the right of employees "to engage in . concerted activities for the purpose of collective bargaining. ." The strike that Burns instigated and engaged in and for which he was fired and the work stoppage that Respondent, without foundation in fact, accuses Puckett of encouraging after the strike was in progress and for which he was fired, are the best known examples of "concerted activities" guaranteed to employees by the Act. The right to engage in such concerted activities can only be waived by mutual consent of Employees and Employers in a collective-bargaining agreement. In the present case, as heretofore noted, the Union in its Master Agreement with Respondent waives the right to engage in a strike without first exhausting the procedures for the settlement of grievances prescribed under the Agreement. The pivotal sentence in the Agreement, however, is not this waiver, but the limitation placed upon the Respondent on the sanctions it may impose on wildcat strikers where the duration of the unauthorized strike continues for no "American Jurisprudence states that, "The object of arbitration is the final disposition of differences between parties in a faster, less expensive, more expeditious, and perhaps less formal manner than is available in ordinary court proceedings." 5 Am Jr 2d, Sec 1, at page 519 more than 24 hours. In such unauthorized strikes of 24 hours or less, the Agreement expressly limits the discipline the Respondent may impose to discipline "short of discharge." The right to discharge is given to Respondent only "After the first twenty-four (24) hour period of such [work]stoppage. . ."Itis thus clear thattheMasterAgreement reserved to Respondent's employees the immunity granted by the Act against discharge for participation in work stoppages where such participation, as in the present case, lasts less than 24 hours. Consideration will be given first to the arbitration award upholding the discharge of Burns. Although the award states no reason for sustaining Burns' discharge, it is self-evident that the award was based on the erroneous conclusion that the work stoppage in which Burns participated lasted more than 24 hours because if the work stoppage lasted 24 hours or less, no discharge was permissible under Article 8 of the Master Agreement under which Burns was discharged. Respondent by stipulation admits that it scheduled no work for its drivers and mechanics for the Sunday, January 14, 1968, in which the strike vote was taken. The first schedule following the Sunday layoff was at midnight that Sunday, or more precisely 12:01 a.m. Monday, January 15. It was then that pickets appeared and the actual work stoppage started. The strike was called off at approximately 10:30 in the morning of that same Monday morning, that is, within about 11 hours after it had started. Respondent itself recognizes that the work stoppage started at midnight that Sunday because in its letter of discharge to Burns it told him that he was being fired for "Instigating a refusal of Wagoner Transportation Company employees to report for work midnight January 14, 1968, and encouraging a refusal of Wagoner employees to report for work after midnight January 14, 1968. . . ." (Emphasis supplied.) Similarly, Respondent informed Puckett in his termination notice that he was being discharged for "Encouraging a refusal of Wagoner Transportation employees to report for work after midnight January 14, 1968. . (Emphasis supplied.) Under these circumstances, the mere fact that the motion to strike had taken place on Sunday morning, January 14 is wholly immaterial as it could not be implemented until work was scheduled to resume at midnight that day. It follows that Burns' discharge was unlawful under the Master Agreement and that the award upholding his discharge must be disregarded as a matter of law as being repugnant to both the Act and the Master Agreement. For the same reasons it is found that Puckett's discharge was unlawful insofar as Respondent seeks to justify Puckett's termination under article 8 of the Master Agreement. Respondent also seeks to justify Puckett's discharge on the ground of his alleged violation of his duties as a job steward under article 8 of the Agreement, which states that, ". . . the Union shall undertake every reasonable means to induce such employees [wildcat strikers] to return to their jobs during any such period of unauthorized stoppage of work...."" Article 3, dealing "As the above quoted portion of the Master Agreement is taken out of its important context for purposes of readability, it is deemed desirable to set forth here the full text of the sentence from which the quotation was taken, to wit. "While the Union shall undertake every reasonable means to induce such employees to return to their jobs during any such period of unauthorized work mentioned above, it is specifically understood and agreed that the Company during the first twenty-four(24) hour period of such unauthorized work stoppage shall have the sole and complete right of WAGONER TRANSPORTATION CO. exclusively with the duties of job stewards, prohibits as heretofore shown a steward from taking unauthorized strike action or any other unauthorized action interrupting the Employer' s business and authorizes discipline even to the extent of discharge for a steward who "has taken unauthorized strike action, slow down, or work stoppage in violation of the Agreement." While article 8, as heretofore shown, limits the right of discharge of wildcat strikers to participants in strikes of a 24-hour duration or longer, article 3 does not have any similar express limitation on the discharge authority of an Employer for stewards who engage in unauthorized strike actions. However, since Respondent relies on the above-quoted portion of article 8 in arguing its justification for Puckett's discharge under article 3, the Examiner concludes that the restriction of article 8 against discharge of wildcat strikers who engage in strikes of 24 hours' duration or less would similarly apply to job stewards who violate their duties to refrain from strike actions under article 3. Under this conclusion, insofar as the arbitration award upholds Puckett's discharge under article 3, it should be disregarded for the same reasons that the arbitration awards for both Puckett and Burns were found, above, not entitled to recognition under article 8 of the Master Agreement. As the above-conclusion was reached without taking into consideration the question of whether or not Puckett engaged in any of the unauthorized strike actions prohibited to him as a job steward under article 3 of the Master Agreement, it should be again noted, as heretofore found, that Puckett did not in any way initiate or participate in the unauthorized work stoppage. The record is unchallenged that Puckett opposed and fought against the wildcat strike motion and refused in any way to participate in the work stoppage once it got under way. The record further shows that Puckett in opposing the strike motion even warned the drivers that their participation in an unauthorized strike could result in their discharges. In its discharge notice, the Company did not accuse Puckett of instigating the strike as it did Burns. Respondent's chief accusation" against Puckett is that he took action "interrupting the Employer's business" by telephoning Boeschenstein, Respondent's labor relations manager, during the course of the strike, in an effort to persuade him to meet with the assembled drivers on the issue of the retroactive pay which had brought on the wildcat strike. Respondent contends that this was an unlawful effort to negotiate a settlement of the strike while the unauthorized work stoppage was in progress. As the lack of merit of this contention was fully dealt with above, the matter needs no further discussion at this point. The concern here is only with the issue of whether the arbitration award upholding Puckett's discharge should be disregarded under the Spielberg case, supra, as being clearly repugnant to the purposes and policies of the Act. The Examiner finds that the arbitration award sustaining Puckett' s discharge must be disregarded not only because the record is entirely lacking in proof that Puckett "interrupted" Respondent's business by his efforts to get Boeschenstein to talk to the strikers about the issue which caused the strike, but also because the phrase "interrupting the Employer's business" must be defined in reasonable discipline short of discharge, and such employees shall not be entitled to or have any recourse to any other provision of this Agreement." (Emphasis supplied.) "Respondent's only other complaint against Puckett is that he failed to take reasonable means to induce the strikers to return to work. 461 the terms of the conduct for which an Employer is given the authority to discharge a job steward. Under article 3 of the Master Agreement the Employer is given authority to discharge a steward only "in the event the shop steward has taken unauthorized strike action, slow down, or work stoppage in violation of this Agreement." Thus the interruption of an Employer's business even if such interruption is an established fact is not a ground for discharge of a shop steward under the Master Agreement unlesss such interruption shows that the "shop steward has taken unauthorized strike action, slow down, or work stoppage." The record is clear that Puckett has not taken any of these prohibited actions. It follows that insofar as the arbitration award is based on the assumption that Puckett interrupted Respondent's business by seeking Boeschenstein's cooperation in settling the unauthorized strike during the course of the strike, the award upholding Puckett's discharge must be disregarded because the Master Agreement does not authorize the Employer to discharge a job steward for that kind of action. On the contrary as heretofore noted, Puckett's efforts to get the Company and the strikers together for a talk on the strike issue was in direct line with his positive duty under article 3 to present grievances to the Company in behalf of employees. Obviously a shop steward cannot legally be discharged for performing a duty which is imposed upon him by a collective-bargaining agreement. It is also found that insofar as the arbitration award upholding Puckett's discharge is based on the alternative conclusion that Puckett did not in the language of article 8, section 8.2, of the Master Agreement, "undertake every reasonable means to induce" the striking employees to return to their jobs, the record shows that Puckett did everything in his power to get them on back to work although it is evident from the Agreement that the responsibility for such action fell exclusively on the Union through its business representative, and not the job steward. This is clear from section 8.2 which states that the "Union shall undertake every reasonable means to induce such employees to return to their jobs during any such period of unauthorzed stoppage of work ...." The same section provides for the appointment by the Union of "authorized representatives who shall deal with the Employer, make commitments for the Union generally, and in particular have sole authority to act for the Union in calling or instituting strikes or any stoppages of work . ." Article 3 defining the duties of job stewards does not give any of the above described duties to the job steward; only the Union's business representative has such powers. It is thus clear that the responsibility for undertaking "every reasonable means to induce" wildcat strikers to return to their jobs was that of the Union's business representative, Rosencrants, and not that of Puckett's. Nevertheless as heretofore indicated the record shows that Puckett did everything in his power to get the striking employees back to work. Respondent has no where spelled' out what Puckett could have done to get the men back to work that he didn't undertake. For the reasons indicated, the arbitration award sustaining Puckett's discharge insofar as it is based on Puckett's alleged violation of his duties under article 3 of the Master Agreement to refrain from participation in unauthorized work stoppages is also wholly without foundation in fact. In summary it is found that Puckett was discriminately discharged because of his union activities in violation of Section 8(a)(3) of the Act and that the arbitration award upholding his discharge requires that it be disregarded as 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD repugnant to and at odds with both the Master Agreement and the Act. The final issue in this proceeding is whether Respondent is also in violation of Section 8(a)(1) of the Act by reason of its threats to a number of its employees some hours before the strike commenced that it would fire any employees who engaged in the work stoppage. The problem is not whether such threats were made because Respondent has stipulated that they were. The problem is whether Respondent had the right to make such threats under the Master Agreement. If the Agreement had given Respondent the unqualified right to fire immediately any employee who engaged in an authorized strike, the threats, in the Examiner's opinion, would have had protected status as they would constitute merely an expression of an intention to exercise an absolute right given to the Employer under the collective -bargaining agreement. But that was not the situation in the instant case. The Master Agreement did not give the Employer the right to discharge an employee who engaged in an unauthorized strike of 24 hours or less; on the contrary, as seen, the Agreement gave Respondent only the right of reasonable discipline short of discharge for such infractions of the Agreement, and the absolute right to discharge only if the engagement was in a work stoppage of 24 hours or more. Since strikes have protected status under the Act and since Respondent under the Agreement did not have the right to fire employees who engage in wildcat strikes of 24 hours' duration or less, it follows.that Respondent did not have the right to threaten discharge to employees who engage in such brief strikes although unauthorized. Accordingly it is found that Respondent is in violation of Section 8(a)(1) of the Act by reason of the threats of immediate discharge of employees who engaged in the strike of the duration here under discussion. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in connection with the operation of Respondent described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent engaged in certain unfair labor practices in violation of Section 8(a)(l) and (3) of the Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent discriminately discharged Earl M . Puckett and Robert L. Burns in violation of Section 8(a)(3) and (1) of the Act, it will be recommended that Respondent offer them immediate and full reinstatement to their former or substantially equivalent position , without prejudice to their seniority or other rights and privileges and to make them whole for any loss of earnings they may have suffered by reason of the discrimination against them , by payment to each of a sum of money equal to the amount each would have earned from the date of the discrimination against him until such discrimination has been fully eradicated, less the net earnings of each during the discriminatory period. Backpay with interest at the rate of 6 percent per annum, shall be computed in the manner set forth in F. W. Woolworth, Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce and the Union is a labor organization , all within the meaning of the Act 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 3. That Respondent discriminately discharged its employees Earl M. Puckett and Robert L. Burns contrary to the provisions of its collective-bargaining agreement. 4. That the arbitration awards of the Joint Area Committee upholding the discharges of the said Earl M. Puckett and Robert L. Burns are not entitled to recognition and are to be disregarded because they are repugnant to the purposes and policies of the National Labor Relations Act and to the provisions of the collective-bargaining agreement. 5. By discriminating in regard to the hire and tenure of Earl M. Puckett and Robert L. Burns, the Respondent has engaged in, and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, the Trial Examiner recommends that the Respondent, Wagoner Transportation Company, its officers, agents, and successors, and assigns , shall- 1. Cease and desist from: (a) Imposing the penalty of discharge on employees for participating in an unauthorized strike where due to the brevity of the strike the collective-bargaining agreement gives the Company only the authority to impose reasonable discipline short of discharge. (b) Threatening immediate discharge of employees who engage in unauthorized work stoppage where the collective-bargaining agreement grants them immunity from discharge for the first 24 hours of participation in such unauthorized activities. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer Earl M. Puckett and Robert L. Burns immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed and make them whole for any loss they may have suffered by reason of the discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. WAGONER TRANSPORTATION CO. 463 (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its Muskegon, Michigan, terminal copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notice to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply therewith." "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice. In the further event that the Board's Order be enforced by a decree of the United States Court of Appeals , the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." "In the event that this Recommended Order is adopted by a Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL offer Earl M. Puckett and Robert L. Burns reinstatement to their former or substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, and WE WILL make them whole for any loss of pay they have suffered as a result of their discharge. WE WILL NOT threaten immediate discharge of employees who take part in wildcat strikes that last no more than 24 hours because in such situations our collective-bargaining contract with the Union gives the Company only the right of reasonable discipline short of discharge. Dated By WAGONER TRANSPORTATION COMPANY (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 500 Book Building 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 313-226-3244.