The Kroger Co.

THE KROGER CO. (CLEVELAND DIV.) 769 The Kroger Co. (Cleveland Division ) and Alvin Silbaugh, Jr. Case 8-CA-4639 June 30, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA On December 20, 1967, Trial Examiner Max Rosenberg issued his Decision in the above-entitled proceeding finding that Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. The Respondent filed a brief in answer to the General Counsel's exceptions. 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 and the entire record in this case, including the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner as modified and elaborated on herein. As more fully set forth in the Trial Examiner's Decision, on or about March 2, 1967, several weeks prior to April 8, the expiration date of the then existing collective-bargaining agreement, the Respondent, in response to repeated requests from the union bargaining representatives, agreed to make any negotiated wage increase retroactive to April 8, in the event that negotiations for a new contract continued past such date. In consideration for such wage retroactivity, as evidenced by the credited testimony of the various bargaining representatives of both the Respondent and the Union and demonstrated by the Respondent's action in continuing to respect all phases of the contract, including checkoff and payments into the health and welfare fund, the parties proceeded on the understanding that all the provisions of the existing contract would be kept in effect until such time as a new contract was agreed upon or the Union decided to end negotiations and seek other means of achieving its economic demands. Thereafter, the parties, in accordance with the aforementioned understanding, continued to engage in productive bargaining until on or about May 21, 1967, when a number of employees, in violation of the no-strike provision of the then extended contract, went out on strike and subsequently established a picket line. The employees continued on strike, despite being repeatedly informed by representatives of both the Respondent and the -Union that they were in violation of the no-strike provision of the contract and their jobs were in jeopardy. In the succeeding days the Respondent discharged or put on probation the striking employees who had failed to heed its and the Union's requests to honor the contract and return to work. Upon the basis of the foregoing facts, contrary to our dissenting colleagues and in agreement with the Trial Examiner, we are constrained to conclude that the striking employees forfeited any rights they may have had to reinstatement by participating in the strike in violation of the no-strike provision of the extended contract then in effect. Mastro Plastic Corp. v. N.L.R.B., 350 U.S. 270, 280. In reaching a contrary conclusion, our dissenting colleagues would acknowledge the extension of the contract past the April 8 expiration date, but without any apparent factual basis would nevertheless find that one of the most essential elements of the contract, namely, the no-strike provision, was deleted therefrom. Without the inclusion of the no-strike provision there would appear to be no logical or economic reason for the Respondent's willingness to accede to the Union's demands for wage retroactivity. Moreover, it is apparent from the record herein that the termination of the extended agreement was conditioned only upon a union authorized strike which both sides contemplated as a possibility in the event a bargaining impassee might later be reached, but not before. In view of the above findings and conclusions, we need not and do not here determine, what, if any, rights are accorded by the Act to striking employees in the absence of a contract containing a no-strike provision similar to that herein. 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 to the Trial Examiner, and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBERS FANNING AND BROWN, dissenting: We cannot agree with our colleagues that the employees' May 21-28, 1967, strike in support of contract demands is denied the protection of Section 7 of the Act. The Trial Examiner' s ruling against protection, adopted by the majority, is founded on his finding that a valid no-strike clause existed at the time of the walkout and on his apparent view that employees may never take concerted action independently of their bargaining agent. In our opinion, this position is not adequately supported by fact or by law. The facts, as found by the Trial Examiner, show that the Union had supplied the required notices to terminate the existing agreement on April 8, 1967, and that the Union and Respondent were actively 177 NLRB No. 104 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaged in neogitating a new agreement. It also appears that, in exchange for Respondent's promise to make any wage increases retroactive to April 8, the Union agreed to continue to operate under the existing contract until a new contract was executed or until the Union called a strike. And the parties did in fact adhere to the terms of the old contract after the April 8 termination date. This conduct in our view falls short of an "express waiver of the right to strike" during negotiations for a new agreement.' The parties were merely providing for the continuation of existing contract terms on a day-to-day basis. The old contract's provision barring "the Union or its members" from striking "[d]uring the term hereof" clearly has no applicability to this ad hoc, day-to-day contractual arrangement. And the parties so indicated by conditioning the continuation of the arrangement on the absence of a union strike. This condition plainly negates any intention to retain the contractual ban on strikes during this negotiation period. The term of the prior contract had expired and with it went the Union's agreement not to strike.' In addition, the statutory policy served by the principle of removing protection from strikes in breach of no-strike clauses is the maintenance of industrial peace and stability during the term set by the contract.' This policy objective is not present here, where there is no fixed term contract and the parties are negotiating for a new agreement. While there may be valid reasons for executing and honoring day-by-day no-strike commitments during contract negotiations, they are not supplied by the cases cited by the Trial Examiner. In short, we are unable to find sufficient evidentiary or statutory policy basis for denying protection to the May 21-28 walkout. Although at first professing not to reach the issue, the Trial Examiner impliedly condemned the employees' strike action as "defy [ing] their collective representative." He asserts that "there can be no effective contract negotiations as envisaged by the Act if employees are at liberty to ignore the [established] bargaining agency relationship . . . and to take matters into their own hands by engaging in a strike which impedes and undermines the bargaining process." Again, we feel the Examiner has misconstrued the record evidence and applicable law. The facts in no way establish a case of employee usurpation of the Union's representative status or an attempt to undermine the negotiations. Rather, the record shows that the employees were dissatisfied only with Respondent's contract proposals, and to express that dissatisfaction, voted to strike on May 'N L R B v Lion Oil Company, 352 U S 282, 293 See also Mastro Plastics Corp v N L R B, 350 U.S 270, 281-283 The fact that union leaders later asserted the strike violated the contract is not, in our view, dispositive 'See N L R B v Sands Mfg Co , 306 U S 332, 344; Scullin Steel Co . 65 NLRB 1294, 1317-18 7 and walked out on May 21. It is significant that this action had the backing of a majority of the employees in the unit.' Nor was it shown that the May 21 strike had substantive objectives different from the Union's contract demands. The "defiance" thus inheres in the employees' failure to obtain for their strike proper authorization or official sanction under the Union's constitution and bylaws. Admittedly the strike never won the official approval of the union leadership and thus, in their eyes, was a "wildcat" strike. However, any procedural irregularity or lack of official sanction is an internal union matter, having no relevance to employee Section 7 rights under the Act.' The fact that union leaders may have been embarrassed by the timing of the strike is also, in our view, insufficient to withdraw protection from an otherwise lawful strike. As the Court of Appeals for the Fifth Circuit held, ". . . the law should be slow to declare that members cannot speak effectively in behalf of their own organization and the aims and objectives which it collectively seeks to assert in their behalf." N.L.R.B. v. R.C. Can Co., 328 F.2d 974, 979 (C.A. 5). In other words, employees' right to concertedly support union contract demands is not completely submerged in union dictated procedures for calling a strike. Unless undertaken by "individuals or a small group in criticism of, or in opposition to, the policies and actions theretofore taken by the organization,"" employee concerted activity remains protected. As the facts here fail to establish such criticism or opposition we would find the May 21-28 strike to be protected and hold Respondent to the 8(a)(1) violations as alleged. 'See Western Contracting Corp v N L R B, 322 F 2d 893, 897 (C A 10) While Respondent at one point sought to disprove majority support for the strike, it does not now contest this fact 'See M & M Bakeries, Inc, 121 NLRB 1596, 1604, enfd 271 F.2d 602 (C A. 1); N L R B v Deena Artware, Inc, 198 F 2d 645, 652 (C A 6), cert denied 345 U.S. 906. Cf Pullman Co v. Order of Railway Conductors & Brakemen, 316 F.2d 556, 563 (C A. 7), cert. denied 375 US 820 `NLRB v. RC Can Co,328F2dat979 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MAX ROSENBERG, Trial Examiner: This matter, with all parties represented, was tried before me in Cleveland, Ohio, on October 3, 4, and 9, 1967, on an amended complaint of the General Counsel of the National Labor Relations Board and an amended answer filed by The Kroger Co. (Cleveland Division), herein called the Respondent.' The issues framed by the pleadings concern the propriety of Respondent's conduct under Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, in discharging certain employees and disciplining others for having engaged in a work stoppage at Respondent's operations in Cleveland. At the conclusion of the hearing, the parties waived oral 'The complaint, which issued on July 31, 1967, and was subsequently amended on August 1, 1967, is based upon charges filed on June 7, 1967, and served on June 9, 1967 THE KROGER CO. (CLEVELAND DIV.) argument. Briefs have been received from the General i Counsel and the Respondent, which have been duly considered. After consideration of the entire record made in this proceeding, including the briefs of the parties, and upon my observation of the witnesses as they testified on the stand, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS 1. BUSINESS OF THE RESPONDENT Respondent, a corporation organized under the laws of the State of Ohio with an office and principal place of business in Cincinnati , Ohio, is engaged in the retail sale of foods and allied products in 21 States of the United States. During the annual period material to this proceeding, Respondent derived gross receipts from retail sales in excess of $10 million , and received goods valued in excess of $1 million which were shipped into the State of Ohio directly from points located outside of that State. Respondent's Solon, Ohio, warehouse (Cleveland Division), which is here involved, received goods valued in excess of $50,000 directly from points located outside the State of Ohio, and shipped goods valued in excess of $50,000 directly to points located outside that State, all during the aforesaid annual period. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED It is undisputed and I find that International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 197, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Contentions The complaint alleges that Respondent violated Section 8(a)(1) and (3) of the Act when, on May 29, 1967, it discharged eight named employees and placed an additional 165 on probation for having engaged in a protected, concerted work stoppage at Respondent's warehouse in Solon, Ohio. Respondent asserts that its conduct in discharging and disciplining the striking employees was legally privileged because the work stoppage occurred in defiance of a valid, no-strike clause contained in a contract then in effect between Respondent and the Union, which was the exclusive bargaining representative of the strikers.' B. The Evidence Respondent operates a grocery chain throughout the mid-West and maintains a warehouse, bakery, and 'Alternatively, Respondent contends that, assuming the no-strike provision was not viable at the time of the strike, the work stoppage did not constitute protected , concerted activity and the offending employees could lawfully be terminated or reprimanded under the teachings of N L R B v Draper Corp, 145 F 2d 199 (C.A 4), because the strike was in derogation and destructive of the Union 's bargaining position, and was neither sanctioned nor ratified by the Union. In view of the findings hereinafter made, and the conclusions drawn therefrom, I deem it unnecessary to consider this contention. 771 regional office in Solon, Ohio. Over the years, Respondent has engaged in collective-bargaining relations with four labor organizations covering the employees at the Solon location. The Union is the bargaining agent for the warehouse, bakery maintenance and garage maintenance employees involved in this proceeding. Local 407 of the Teamsters' International union represents the truckdrivers whose terminal is at the Solon warehouse. Local 19, which is also afiliated with the International union , bargains on behalf of the production employees at the bakery in Solon. Finally, Respondent recognizes the Amalgamated Meat Cutters International Union as the collective spokesman for the butchers employed in the former's meat processing plant. On November 25, 1964, Respondent and the Union executed a collective-bargaining agreement, retroactive to April 5, 1964, and effective until April 8, 1967, which was to continue in full force and effect from year to year thereafter unless either party served a written notice 60 days prior to any anniversary date of a desire to terminate or modify the agreement. Article 9 provided that "During the term hereof the Union agrees that there shall be no strike or any other interference with or interruption of the normal conditions of the Employer's business by the Union or its members. The employer agrees that there shall be no lockout." On February 3, 1967, the Union mailed a standard contract "termination or modification" notice to the Federal Mediation and Conciliation Service, and a copy was transmitted to Respondent on that date. On February 8, John G. Burns, president of the Union at the time, dispatched a letter to William Bedell, Respondent's labor relations' representative and chief negotiator, which recited, "As per our sixty day notice mailed to you on February 3, 1967, we hereby request changes in our present agreement between your company and our local union. We would appreciate a call from you at your convenience so that we may arrange a meeting to discuss said changes with you." As a result of this letter, the parties conducted an initial bargaining session on February 20. In addition to Burns, the Union was represented by Joseph Trito, a business agent. Respondent's bargaining staff was manned by Bedell, Rockwell Gidcomb, manager of distribution, and Bernard Ruble, personnel manager. This triumvirate appeared on behalf of Respondent in all of the negotiating meetings held with the Union. It is undisputed and I find that, at the February 20 meeting, Burns asked Bedell whether the latter would be agreeable to making any negotiated wage increase retroactive to the April 8 terminal date of the existing contract in the event negotiations on the new agreement carried beyond that date. Bedell replied that the issue of retroactivity was prematurely raised in view of the fact that the current contract had approximately 6 weeks to run and ample time was available to consummate a new pact. A second bargaining session was held on March 2. Once again, Burns broached the subject of wage retroactivity in the event the parties failed to reach agreement by April 8. It is Bedell's uncontradicted testimony and I find that, on this occasion, he agreed that any negotiated increase in wages would be made retroactive to the terminal date of the existing contract provided that, in conformity with past practice between the parties, the Union and Respondent continued to honor the terms of the current agreement until such time as a new pact was executed or the Union decided to engage in 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an economic strike. If the latter circumstance eventuated, the issue of retroactivity would have to be negotiated. Gidcomb and Ruble, who also were present at this meeting, testified in a similar vein . Thus, Gidcomb testimonially related that, as a rssulti of Bedell's concession on wage retroactivity, "it' was my understanding that the present contract would be in effect until we signed a new agreement or if there was a strike called by the Union , itself," and Ruble testified that Bedell informed Burns that Bedell "had no objection to the retroactivity on wages unless there was a work stoppage" and that "It has been [Respondent' s] practice over the years that this [an agreement on retroactivity] indicates that we will continue to operate under our present contract." Negotiations continued after the March 2 session and, on April 4, Bedell mailed a tentative agreement reached by the negotiators to Burns. This proposal was placed before the union membership which voted to reject it, and Bedell and Ruble were so informed . Following the rejection, the parties again met and continued bargaining.' However, it is undisputed and I find that, after the terminal date of the existing contract was reached on April 8, Respondent continued its terms and conditions in full force and effect. Work schedules, assignments and wages conformed with those set forth in the current agreement . Dues were checked off, health and welfare premiums were paid , grievances were processed, and arbitration occurred on at least two occasions in May as prescribed in that compact. On May 3, the Union and Respondent engaged in another bargaining session . At this meeting, Alvin Silbaugh , Jr., the Charging Party and one of the eight alleged discriminatees in this litigation, attended in his capacity as shop steward for the warehouse employees, together with the other shop stewards as well as President Burns and Business Agent Trito. After the meeting convened , Burns and Trito requested that Bedell submit Respondent's final contract offer, and the latter complied. Thereafter, a union meeting was held on May 7 to consider this proposal , at which and approximately 150 warehouse employees attended . The General Counsel summoned Silbaugh, Assistant Warehouse Steward James F. Bartoroni, Jr., and employees Harold E. Shriver and Wilfred Cunningham to the stand to proffer their testimony as to the events which transpired at this gathering. In general, they collectively testified that Burns chaired the meeting while Trito outlined and explained Respondent's contract offer. Following Trito's report, an unanimous vote of the members in attendance resulted in rejection of the proposed agreement . A discussion then ensued concerning the taking of a strike vote and the setting of a strike deadline date . I find, based upon the minutes of this convocation, that "Trito said he would not entertain any deadline for strike action until all steps of bargaining were exhausted." At this juncture, employee Gigliotti remarked that "the strike vote action would be taken only on the grounds of a bargaining point, and giving any one concerned power to take action." Employee Shriver moved that a strike poll be conducted, which motion was seconded by employee Habadny who stated that "they would not strike. The deadline date would be set to show that they meant business and were ready." Whereupon, a motion to strike at midnight on 'The record shows that Respondent submitted additional proposals on at least three other occasions between March 16 and April 18, all of which were turned down by the union membership. May 21 was proposed and overwhelmingly adopted. According to Silbaugh , Trito then observed, "Well, if that is what you want, okay." When questioned as to whether Burns or Trito made any statement to the effect that it was necessary to obtain the approval of William Presser, President of the Cleveland Joint Council 41 of which the Union was a subordinate affiliate, to engage in strike action pursuant to the International union ' s constitution, Silbaugh replied in the negative . However, Silbaugh admitted that he knew that Presser had been appointed by the Teamsters' International to manage the affairs of the Union and that the Union had been placed under Presser's trusteeship prior to the May 7 meeting, and he conceded that Burns did mention that the latter would submit a report to Presser concerning "the result of the vote and our decisions as far as the proposal, the final proposal." At one point, Silbaugh also denied that Trito stated that he would solicit the assistance of Presser and International Representative Greeley in further negotiations with the Respondent . After being shown a sworn affidavit which he gave to a Board agent , Silbaugh finally admitted that Trito had so informed the men at the meeting. Assistant Steward Bartoroni testified that, after the strike vote was tallied , Burns stated that "he would take the findings of this meeting, which was the turning down of the company proposal, and also the strike vote, to Mr. Presser," although he denied that Burns in any manner indicated that strike authorization would first have to be procured from Presser before a work stoppage would be sanctioned . Harold Shriver averred that he did not hear either Burns or Trito make any comment concerning the necessity of obtaining Presser's approval prior to engaging in a strike . However, Wilfred Cunningham , another shop steward called as a witness by the General Counsel, emphatically testified that, at the meeting, Trito "said that he would have to get an approval from someone higher up before he could get the strike sanctioned." Samuel Cunningham , a a shop steward, was called as a witness by Respondent and testimonially related his version of what had transpired at the May 7 meeting. According to him , Trito detailed the Respondent's contract proposals to the men , after which a vote was taken and the proposals were rejected . An argument followed concerning the taking of a strike vote . Samuel Cunningham further testified that "The highlights of this particular argument was that some members wanted to have a deadline to strike , and some didn't, so Mr. Trito said as long as negotiations were in progress that we were not going to strike. So a vote was taken but it was a confidence vote and he made it clear it wasn't a vote to strike." This witness added that Trito "said it was all right to take a confidence strike vote but he was not entertaining a motion to strike at a given deadline." Rounding out this episode , Silbaugh averred that Burns and Trito observed that they would apprise Respondent of the action taken by the membership at a grievance session which was scheduled for the following day, May 8. Silbaugh also noted that he was aware at this time that the Union and Respondent contemplated the engagement in further collective-bargaining discussions. Although not critical to the ultimate disposition of this case, I do not credit the testimony of Silbaugh , Bartoroni, or Shriver that neither Burns nor Trito stated at the May 7 meeting that prior approval of the strike vote deadline must first be obtained from the Joint Council and the International union before a cessation of work could occur. Wilfred Cunningham, a witness called on behalf of THE KROGER CO. (CLEVELAND DIV.) the General Counsel to supply his testimonial version of what took place at the session , categorically averred that Trito advised the men that the latter "would have to get an approval from someone higher up before he could get the strike sanctioned." Moreover, the minutes of the meeting contain the admonition from the union officials in attendance that they "would not entertain any deadline for strike action until all steps of bargaining were exhausted," and even the movants of the strike vote understood that the balloting was for the sole purpose "of a bargaining point, and giving any one concerned power to take action." Furthermore, the International constitution makes it abundantly clear that strike action must be blessed by higher authority before it can be taken. Article XII, Section 1(b) provides in pertinent part that: If a [contract] settlement cannot be reached, the Local Union Executive Board shall order a secret ballot to be taken and it shall require a two-thirds (2/3) majority of those members of the Local Union involved in such negotiations and present and voting to adopt a motion to strike. Article XII, section 1(c), then goes on to recite that: Prior to a Local Union becoming involved in a strike .. such Local Union shall immediately notify the. Joint Council of which it is a member of any contemplated action, setting forth the action contemplated and the nature of the difficulty. The Joint Council shall then take steps to approve or disapprove such contemplated action . The General President is authorized to approve, disapprove or modify the action of the Joint Council. In sum, I find that, at the May 7 meeting, Burns and Trito informed the membership that no cessation of work would result from an affirmative strike vote until a bargaining impasse had been reached between the Union and the Respondent, and the Joint Council and the International union had approved this course of action. On the morning of May 8, President Burns and Stewards Silbaugh and Samuel Cunningham met with Gidcomb and Ruble to discuss a grievance concerning an employee who had been discharged . Following this discussion, Respondent agreed to reinstate the employee. However, during the deliberations, and according to Silbaugh's testimony, Burns informed Gidcomb, "Well, Rocky, I am afraid the men turned down your final proposal. They voted, about all of them voted to go out on strike in two weeks." Burns added that he would attempt to contact International Representative Greeley and utilize his services as a negotiator for the forthcoming bargaining meeting "because we got two weeks." Gidcomb testimonially confirmed that Burns mentioned at the grievance meeting that the union membership had voted to reject the company's contract proposals and that an affirmative strike vote had been taken on the previous day. Bedell testified that, following the grievance session, he received a telephone call from Gidcomb in which Gidcomb conveyed the intelligence which he had received from Burns. On May 17, Cleveland Joint Council President William Presser appointed Harold Friedman and Jack Presser as administrators of the affairs of the Union.' In this capacity, these individuals assumed the duties and responsibilities of the Union's incumbent officers and Friedman was charged with the task of conducting collective-bargaining negotiations with the Respondent on behalf of the Union. On May 19, the parties held another bargaining session. On this occasion, although Burns was present, Friedman played the role of the chief union 773 negotiator . Inasmuch as Silbaugh was unavailable due to an illness in his family , Assistant Steward Bartoroni served as the former's backup. When the meeting opened, and according to Bedell' s uncontradicted testimony, Friedman informed Respondent's negotiators that he and Jack Presser had been appointed as administrators of the Union, and that he had come to ascertain whether the Union should be granted strike authority. Before negotiations got under way, Bedell apprised Friedman that the former was under the impression that Respondent might be struck by the Union on May 21. It is Bedell's testimony that, in reply, Friedman assured "There will be no strike on May 21. It's possible you may have one on the 25th of May but that date is changeable, subject to negotiations and whether progress is made." Thereafter, little progress was made in the discussion of substantive, contractual issues. According to Bedell' s undenied testimony, this circumstance developed from the fact "that Mr. Friedman, who had not participated in these negotiations, in this set of negotiations heretofore, was not up on the issues of the contract, itself, and he asked me several questions. He asked for a list of employees, he asked for classifications, wage rates, seniority lists. He also asked for a document to be given him which would contain the proposed changes by the Employer fitted into the framework of the old contract." Bedell readily agreed to provide this information but observed that it might take 2 to 3 days before the company could collate the material. Whereupon, the parties agreed to postpone the meeting until the company could provide, and Friedman could digest, the information. Consequently, it was decided to reschedule the meeting for June 1 and June 2. The session then was recessed . According to Bedell, he left the meeting with the distinct understanding that, in view of Friedman' s comments and the scheduling of future negotiation dates, there would be no strike "until we had at least gotten back together and either we settled the contract or the union took its own course of action." Gidcomb testified that, during the May 19 session with Friedman, the latter "very emphatically" announced that "there wouldn't be a strike on May 21st, and as I recall he stated there wouldn't be one on Thursday [May 25] unless he said so." Gidcomb related that he departed from the meeting room convinced that there would be no work stoppage until Friedman gave the word, and for this reason he took no immediate steps to remove perishable foods from the warehouse. Ruble also generally corroborated the testimony of Bedell and Gidcomb on this issue. Ruble testified that, when Bedell asked Friedman about rumors of a strike at the warehouse, Friedman "answered emphatically that he had heard about these [rumors], that the strike had been - he had heard scheduled for the 21st [of May]. He said, `I understand it's been changed to Thursday [May 25]. It will not take place then and it will not take place until the Cleveland [Joint Council] says so."96 Harold Friedman's version of the May 19 meeting substantially coincided with that of Bedell, Gidcomb, and Ruble. Friedman testified that Bedell informed Friedman that rumors of a strike at the warehouse had come to his attention. Friedman replied that "we had only been 'Friedman also occupied the position as President of a sister Teamster Local 507. 'Bedell, Gidcomb, and Ruble testified that they did not inform the warehouse employees prior to the strike that the contract had been extended or that the strike had been postponed because Respondent did not make it a practice of dealing directly with the employees on these matters. 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appointed to handle the affairs of [the Union] less than a week, there would be no strike until we had an opportunity to have a meeting with the people, to give them a proposal, and furthermore the union had not requested strike permission to the [Cleveland Joint] Council of the International as the constitution provides for and so it would be impossible to strike even then."6 In this connection, Friedman explained that, where a local union has been placed in trusteeship (as in the case of the Union), the administrator "takes over the duties and authority of the officers of the local and then he functions in the same manner as the president , vice president and so on, as the officers would." The administrator "would have to call for a strike vote of the membership and then he would have to submit to the Joint Council 41 of the Teamsters for strike permission, then he would also have to submit to the Teamsters International Union in Washington, D.C., for strike permission." It is undisputed and I find that Friedman added that, when he was appointed as administrator of the Union, no strike permission had been granted to it by the appropriate governing bodies. He further added that he had learned from Burns and Trito, as well as from the minutes of the Union meeting on May 7, that an affirmative strike vote had been taken, but had been assured by these officials that "it wouldn't mean anything." Friedman also testified that, on the date of this meeting, the previously executed contract between the Union and Respondent remained in effect, and that he made this clear to the company officials on this occasion. According to Friedman, that agreement had never been terminated either by the Union or Respondent and that both parties had agreed to live under its terms until a new agreement had been consummated or an authorized strike had been called. In his testimony given on behalf of the General Counsel, Bartoroni claimed that no discussion regarding the cancellation of strike plans occurred during the May 19 meeting. However, he allowed as how Friedman stated that the latter had heard that a strike was scheduled for Sunday [May 21] or Wednesday [May 24] or Thursday [May 25], and eventually Friedman remarked to the assemblage that "I don't know when these fellows are going to strike." Bartoront also confessed that he was aware that further bargaining was scheduled for June 1 and 2. Moreover, he did not controvert Friedman's testimony that the latter informed Respondent's officials that the old contract remained in full force and effect. I credit the testimony of Bedell, Gidcomb, Ruble, and Friedman that, at the negotiating session on May 19, Bedell expressed his concern over rumors which had reached his ears that the men had voted to walk out on May 21 and that Friedman assured the management negotiators that there would be no work stoppage until bargaining procedures had been exhausted and strike sanction had been received from the Joint Council and the International . At best, Bartoroni in his testimony was vague and uncertain. While he insisted at the outset of his testimony that there was no mention of cancelling the strike, he admitted that Friedman expressed doubt as to the exact date of a strike. Moreover, although Bartoroni was present during the entire course of the negotiations on May 19, he failed to controvert Bedell's testimony that Friedman stated at the opening of the meeting that the latter, as administrator of the Union's affairs, had come to the session to ascertain whether strike sanction should 'Friedman's testimony in this regard finds support in the language of the International constitution heretofore quoted be afforded the Union. Furthermore, Bartoront acknowledged in his testimony that Friedman had displayed an unfamiliarity with the status of the negotiations, requested time in which to study the various proposals, and arranged for additional bargaining sessions on June I and 2. Accordingly, I am convinced and find that Friedman assured Respondent on May 19 that there would be no cessation of work at the warehouse until it was demonstrated that collective bargaining would prove fruitless. Following the meeting, Bartoront presented Friedman with a petition which was addressed to International representative Greeley and which was dated May 18.' This petition, signed by approximately 100 employees, requested that "a special meeting of the Union's membership be called for the purpose of discussing and voting on the new contract proposal." According to Bartoron ►, Friedman promised to hold a meeting with the employees but did not specify a date certain. Friedman testified that he had learned from two employees at the bargaining session on May 19 that someone had placed a notice in the warehouse without permission of the Union to the effect that there would be a union meeting on Sunday, May 21, to discuss the status of negotiations, and Friedman replied that he "knew of no meeting on Sunday but as soon as we had time we would call a meeting in the plant." After presenting the petition to Friedman, Bartoroni testified that he was instructed by Burns to return to the warehouse and inform the employees of what had transpired at the negotiating session. Bartoroni spoke to the men and explained that no new proposals had been advanced by Respondent. On Sunday morning, May 21, approximately 200 employees appeared at the union hall in response to the posted notice. When the union officials failed to appear, the men dispersed. That evening, a majority of the employees in the warehouse unit engaged in a strike.' 'It is uncontroverted and I find, based upon Friedman's testimony, that Greeley is a troubleshooter for the Teamsters ' International union and "when a local cannot settle its affairs and if the local would request strike permission, and before they could strike the International has a policy of sending in people such as Mr Greeley to see if they can't straighten it out " 'At the hearing, I sustained the General Counsel's objection to the admission of two documents styled "Respondent's Exhibits I and 2 " The exhibits purportedly contained the names of all employees who worked during the course of the strike and those who did not, and their introduction was apparently sought by Respondent to show that less than a majority or a bare majority of the employees in the unit supported the strike My ruling was premised on the ground that the witness through whom Respondent sought to introduce these Exhibits did not personally examine the payroll and time records upon which they were based At the close of the hearing, I granted Respondent permission to submit this data to me as Resp Exh 9 , provided that the parties reached a posthearing agreement as to the accuracy of the material contained therein After a posthearing submission of the latter exhibit, the General Counsel objected to its receipt on the ground that it lacked accuracy In moving papers also filed following the close of the hearing , the Respondent moved to strike exhibits A, B, C, and D which were appended to the General Counsel's brief, for the reason that they were proffered during the hearing and has been rejected by me on the grounds of irrelevancy These exhibits, like Resp Exh 9, relate to the number of employees who did or did not participate in the work stoppage In view of the findings herein made that a valid, no-strike clause existed at the time of the strike and that the walkout took place in defiance of that clause, I conclude that it is immaterial and irrelevant to a decision in this proceeding whether a majority or a minority of the employees in the unit struck For these reasons, I hereby reject Resp Exh 9 and G C. Exh. A, B, C, and D I would note, however, that Respondent concedes in its brief that a "majority" of the employees engaged in the strike THE KROGER CO. (CLEVELAND DIV.) 775 Bartoroni testified that he did not contact any official for strike instructions because "I just didn't call them. That's all." There is no testimonial dispute and I find that, shortly after the work stoppage commenced at 10:30 p.m. on May 21, Ruble, Gidcomb, and Respondent's Vice President M. McDaniel approached the picket line and repeatedly informed the strikers that "they were violating our contract and that this was a wildcat strike, and unless they would return to work we had no choice but to consider that they had quit their jobs." Meanwhile, Gidcomb telephoned Burns to report that a strike was in progress. Burns characterized the work stoppage as "wildcat" and promised to take action to terminate it. On the morning of May 22, McDaniel sent a telegram to Cleveland Joint Council President William Presser in which he related that certain members of the Union "are refusing to work and are picketing contrary to our agreement" with the Union, and in which he inquired whether the strike had been authorized or sanctioned by the Council and the International union. That same morning, Presser replied, "Strike sanction not authorized by Joint Council 41 of International Union. This is wildcat strike." On May 23, McDaniel directed a telegram to all the strikers which recited that "The present work stoppage at the Kroger Warehouse is unlawful and has not been authorized by your Union. Your International Representative has informed us that it is a `wildcat strike.' . . . I urge you to give very serious thoughts to returning to work. If you do not return to work on your next regularly scheduled shift your failure to return may result in your being replaced." Friedman testified that he first learned of the commencement of the stoppage on May 22 and on 3 consecutive days thereafter he held meetings in his office with the strikers in which he pleaded with them to return immediately to work and assured them that he would be able to convince the Respondent to allow all the strikers to resume their duties if they did so. Friedman cautioned the men that "it was an unauthorized act that they had done, they were putting their jobs in jeopardy, the union could not back them, and that if they didn't return to work they would leave themselves in the position of being fired." He further informed the strikers that "You've got a contract in effect. Go back to work. We are negotiating the contract and we can't get anything straightened out until you return to work." Friedman also told them that "the contract continues from year to year unless terminated. I told them that the contract was not terminated, that a request was made upon the company to continue it and at no time was the company notified of termination and I also explained to them the functions of getting strike permission from the Joint Council 41 and from the International Union." Silbaugh joined the strike on May 22. During his examination on the stand, he initially proclaimed that he had never been urged by any union official during the course of the strike to return to his job because the stoppage was unauthorized and hence illegal. According to Silbaugh, the sole exhortation which he received came from Union Administrator Jack Presser who suggested an immediate end to the stoppage as a "union tactic" so that the warehousemen might, at a future date, join the truckdrivers represented by a sister local in a joint strike and thereby bring Respondent "to their knees." When pressed on this issue, Silbaugh admitted that he "had heard the rumor" that Joint Council President William Presser had termed the walkout a wildcat strike, "but I as a union official at that time was never told it was a wildcat strike and told to go back to work." Silbaugh then acknowledged that Jack Presser had notified the former that unless Silbaugh abandoned the strike and returned to work the Union could not give him "assurance against company reprisals." Finally, Silbaugh insisted that no union official ever visited the picket line to inform him that the strike was illegal because it violated the provisions of an existing no-strike clause. However, he conceded that he received McDaniel's telegram of May 23 which carried this intelligence. Bartoroni also confessed that he received a similar telegram during the strike. He did not deny and hence did not corroborate Silbaugh's testimony that no such notification was received from the Union. I credit the testimony of Gidcomb, Ruble, and Friedman concerning this episode. As the strike progressed, Silbaugh and others on the picket line retained the services of an attorney. In Silbaugh's words, this step was taken for "our protection." When questioned as to whether he needed protection from the Union, Silbaugh replied that "we didn't have nobody from the union at the time approach us, we just had him for our protection." Silbaugh was then asked whether, in fact, the union officials had told him that they could not protect him unless he resumed work, to which he rejoined that Jack Presser had stated "I don't know if we can offer you any protection about reprisals, I am trying to get you a sanction now." Silbaugh was queried as to his understanding of the word "sanction," and he made the remarkable statement that Jack Presser "was trying to contact somebody, I don't know. He probably had to go higher than that, I think the International for a sanction, but a sanction meant $20 strike funds as far as I know, or the blessings of the union." (Emphasis supplied.) On May 28, Silbaugh's attorney polled the strikers to determine whether they wished to return to work and a majority voted to abandon the work stoppage. Whereupon, the attorney notified Respondent of this action by telegram on that date. On the evening of May 28, Silbaugh and his fellow strikers reported at the warehouse where they were met by McDaniel, Gidcomb and Ruble. Silbaugh stated that he was resuming work pursuant to the telegraphic invitation which McDaniel had dispatched on May 23 urging an abandonment of the strike. Gidcomb replied that "The work that you were to have done has been done. We will call you when we need you." By letter dated May 29, which was received on June 1, Respondent notified Silbaugh, Bartoroni, Harold Shriver, Wilfred Cunningham, and four other strikers, whom Respondent believed to be the ringleaders in the strike movement, as follows: During last week's wildcat strike, you were warned that if you continued your unlawful strike activity and failed to return to your regularly-scheduled work shift, you would be considered to have quit your employment with Kroger. You were also told that your union did not sanction the strike and that your union called it a wildcat strike. Because of your refusal to return to work last week and because of your active role in the unlawful strike we are removing your name from our payroll. On June 20, 165 of the remaining strikers received a probation notice characterized as a "Constructive Advice Record." This document recited that the men had recently engaged in an unlawful strike in violation of an existing contract between Respondent and the Union, and advised 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that "This is to warn you that if you again refuse to work or if you engage in any such activity, you will be subject to disciplinary action up to and including discharge." The period of probation thus imposed was 9 months. Concluding the factual chronology, Respondent and the Union reached agreement on a new pact on September 12, 1967. This contract provided for a wage increase in the first year of 25 cents per hour and, as in the case of earlier contracts between the parties, was made retroactive to April 8, 1967. The General Counsel urges that the 1964 contract between the parties expired on April 8, 1967, and that the no-strike provision contained therein lost its vitality on the latter date. He therefore argues that the employees were free to strike after April 8, and that, when they chose to do so on May 21, they were engaged in a concerted activity protected under the Act and the Respondent was legally debarred for punishing them for indulging in this activity. I have heretofore found, based upon uncontroverted testimony, that as early as March 2, 1967, Respondent acquiesced in the Union's request that they any negotiated wage increase be made retroactive to the April 8 terminal date of the current contract in the event that negotiations carried beyond that date. In return, the parties mutually agreed to honor all the terms of the existing compact until either a new agreement was arrived at or the Union chose to embark upon a strike, a procedure which the parties subscribed to in prior contract negotiations. I have also found, based upon undisputed evidence, that the Respondent followed the work assignments, schedules, and wages set forth in the contract after April 8, continued to check off dues, paid health and welfare premiums, processed grievances, and participated in arbitration with the Union. At a meeting on May 19 between Respondent and the Union, as heretofore found, union negotiator Friedman assured his company counterparts that the old contract remained in effect and the parties agreed to respect its terms in full until negotiations were successfully concluded or an authorized strike was called. In short, I conclude that the no-strike clause in the contract remained in effect at the time of the strike. While it is true that the Union and the Respondent did not specifically and directly notify the employees prior to the strike that the old agreement, and hence the no-strike clause, continued to govern their work-a-day lives, the record clearly establishes that the strikers were fully apprised of this circumstance at the very inception of the work stoppage and prior to the discharges and the discipline invoked herein. On the evening of May 21 when the strike began, and as heretofore found, Respondent's officials visited the picket line, repeatedly told the strikers that the walkout was a wildcat work stoppage because it violated the terms of the old agreement, and warned the men that they would be terminated unless they returned to their jobs. On the next day, May 22, and for several days thereafter, Union Administrator Friedman implored the strikers to abandon their activities; informed them that the strike was unauthorized and hence illegal; and, cautioned them that they would be subject to discharge if they did not heed his plea to report back to work. In Friedman's words, as heretofore found, he told the strikers "You've got a contract in effect. Go back to work. We are negotiating the contract and we can't get anything straightened out until you return to work." Again, on May 23 and after consulting with Joint Council President Presser regarding the nature of the strike, Respondent dispatched a telegram to the strikers advising them that both the Union and the Respondent considered the work stoppage as a wildcat strike and urged that they return to their jobs on pain of loss of employment. Despite these entreaties and warnings , the stoppage continued until May 28 after which eight strikers were discharged and 165 placed on probation. This is not a case where a labor organization and an employer have deployed themselves against employees to deprive them of desired economic gains . Both parties earnestly sought to reach a bargain on a new labor contract and, to achieve this end , decided to continue the old agreement in full force in order to create a climate conducive to the successful pursuit of this goal. While the employees in the bargaining unit, albeit a majority, might have been dissatisfied with the Union's efforts in this regard, their dissatisfaction provided no license to defy their collective representative and the contractual no-strike provision by which that representative agreed to abide until it became convinced that strike action rather than talk was needed to obtain satisfactory terms and conditions of employment . There are orderly procedures engrafted in the Act whereby employees may divest a collective-bargaining agent of the authority to speak on their behalf.' However, the strikers herein chose not to follow this course but, instead, invented their own rules for playing the game. It is the declared policy of the Act to eliminate industrial strife and the causes of substantial obstructions to the free flow of commerce by encouraging the practice and procedure of collective bargaining . To implement this policy, employees are required to honor viable no-strike clauses lest their defiance lead to discharge." A wildcat strike, called in disregard of a no-strike agreement, "is a particularly harmful and demoralizing form of industrial strife and unrest, the necessary effect of which is to burden and obstruct commerce, but also that it is necessarily destructive of that collective bargaining which it is the purpose of the act to promote ."" Once a labor organization has been selected as bargaining agent, it is thus made the exclusive representative of all employees for the purpose of collective bargaining . There can be no effective contract negotiations as envisaged by the Act if employees are at liberty to ignore the bargaining agency relationship thus established, to disregard the restraints upon strike action to which their agent has agreed in order to promote industrial peace, and to take matters into their own hands by engaging in a strike which impedes and undermines the bargaining process. I have heretofore found and concluded that the no-strike clause in the old contract between the Respondent and the Union was extended by mutual consent of the parties following the expiration of that compact, and remained in full force and effect during the course of the strike in which Respondent's employees engaged between May 21 and 28 , 1967. As one court put it, this "[strike] activity was not in a protected zone, since the stoppage or strike was illegal . Therefore, respondent 'Sec. 9(c)(l) of the statute provides for the conduct of a decertification election whereby employees, upon the filing of an appropriate representation, may rid themselves of an incumbent bargaining agent Under the Board's election rules, the strikers would not have been barred from filing a timely petition after April 8, 1967 . See Deluxe Metal Furniture Company, 121 NLRB 995, 1002. "N.L R.B. v Kaiser Aluminim & Chemical Corp ., 217 F.2d 366 (C.A 9); cf. Mastro Plastics Corp. Y. N.L.R.B.. 350 U S 278. "See NL.R.B v. Draper Corp , 145 F.2d 199 203 (C.A 4). THE KROGER CO. (CLEVELAND DIV.) had the absolute right to discharge."" Following these teachings, I conclude that Respondent was within its, rights to discharge employees for engaging in the May 21 work stoppage, or to discipline them. Accordingly, I conclude that Respondent did not violate either Section 8(a)(1) or (3) of the Act by terminating the eight employees named in the complaint, or by placing the "See N.L.R B v. Kaiser Aluminum d Chemical Corp.. 217 F.2d 366, 369 777 remaining 165 on probation. I shall therefore dismiss the complaint in its entirety. RECOMMENDED ORDER Upon the basis of the findings heretofore made, the conclusions heretofore drawn, and the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety.