Diamond National Corp.

560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Diamond National Corporation and Local Union No. 3-249, International Woodworkers of America, AFL-CIO. Case 19-CA-4524-1 June 15, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On November 12, 1971, Trial Examiner George Christensen issued the attached Decision in this proceeding . Thereafter, Respondent filed exceptions and a supporting brief. General Counsel and the Charging Party filed briefs in support of the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision ' in light of the exceptions and briefs and finds merit in Respondent's exceptions. Accordingly, the Board adopts the Trial Examiner's rulings and findings of fact , but rejects his conclu- sions and recommendations. Respondent has plants at Superior , Montana; Albeni Falls, Idaho; and Coeur D'Alene, Idaho. Employees at all three plants are represented by local affiliates of International Woodworkers of America, AFL-CIO (IWA). The collective-bargaining contract covering em- ployees of the Superior plant contains the following relevant provisions (the contracts at the other two plants contain identical provisions): ARTICLE 14-STRIKES AND LOCKOUTS Section 1. At no time shall employees be required to act as strikebreakers or go through picket lines or armed guards . . . . Section 2. If the Plant is affected by any labor dispute, both parties agree to do all that is feasible to bring about a prompt and fair settlement . .. . Section 3. Irrespective of all other provisions of this Agreement, it is understood and agreed that the Union will notify the Company in writing not less than ten (10) consecutive calendar days in advance of the date and time that any strike action is to be commenced. Under no circum- stances shall such notice be given until after: first-a meeting has been held between top management of [Respondent] and Western States Regional Council of [IWA] . . . and the Union I We correct the fourth date in fn 10 of the Trial Examiner's Decision to read September 15 rather than September 24 being dissatisfied with the results of that meeting, then, second-the Union requests the interven- tion of the Federal Mediation and Conciliation Service and either that Service has advised both parties in writing that it refuses to assert jurisdic- tion or that Service has had the opportunity of holding at least one meeting of the parties in an effort to resolve the dispute involved. [Emphasis supplied.] ARTICLE 18-GRIEVANCE PROCEDURE Section 1. In the event there be any dispute as to the interpretation of any provision of this Agreement, or any grievance arising out of the operation of this Agreement, the matter shall be referred to the Shop Committee immediately Section 3. It is agreed that during the period of this Agreement there shall be no strikes, cessation of work, picketing, or lockouts, until the proce- dures specified in this Article have been exhaust- ed. In August 1969, Respondent let a contract for remodeling work at the Superior plant to a nonunion contractor. Respondent set up a reserved gate for the contractor's employees. A local of the Carpenters Union began to picket both the main and the reserve gates. Respondent's employees refused to cross the picket line. At a meeting with union representatives, Respondent took the position that the employees were on strike in violation of section 3 of article 18 of the collective-bargaining contract. The union repre- sentatives, on the other hand, asserted that the employees were exercising their right not to cross a picket line as guaranteed in section 1, article 14 of the contract. Thereafter, Respondent sent the Union a letter, with copies to employees, outlining possible legal remedies for the alleged breach of the no-strike clause, but urging the employees promptly to return to work and promising no reprisals if the employees did so. The picket line was removed the following day, and the employees returned to work. There were no reprisals. Somewhat similar incidents took place at the Albeni Falls plant on September 11 and at the Coeur d'Alene plant on September 15. The same sequence of events occurred: stranger pickets appeared at these plants; Respondent's employees refused to cross the picket lines; Respondent wrote letters to the Union and the employees outlining possible legal steps to remedy the alleged breach of the no-strike 197 NLRB No. 80 DIAMOND NATIONAL CORPORATION clause; pickets did not appear on the following day; and the employees then returned to work. However, at the Coeur d'Alene plant Respondent took a firmer stance. In the letter to employees of that plant it threatened to discharge all employees who did not report for work. It also imposed 2-day disciplinary layoffs on three union stewards who were active in encouraging employees not to cross picket lines. On September 14, Respondent received reports that the stranger pickets who had earlier appeared at the Albeni Falls and Coeur d'Alene plants were going to picket the Superior plant. On September 15, Respondent dispatched a letter to the Union and the employees of the Superior plant reading as follows: Gentlemen: We have heard rumors that roving pickets, on strike from a Diamond National Plant at Marys- - ville, California where a lumber and sawmill workers' union is involved, may establish a picket line at our Plant tomorrow. If such a picket line is established and our Superior employees choose to "honor" it, such action will constitute a most serious violation of our Working Agreement with your Union. The Agreement makes it completely clear that you are not to strike our operation except under certain spelled out procedures. We believe that a strike under circumstances mentioned above would completely violate our Working Agree- ment, in which event our attorney has indicated that we might take any or all of the following courses: (1) sue your Union and its leadership for damages occasioned by the illegal strike; (2) seek an injunction to bar such strike action; (3) file unfair labor practice charges against your Union and its leadership, for taking such action without prior negotiations and following the steps re- quired by our Working Agreement; (4) terminate all employees or just the leaders for engaging in conduct in violation of our Working Agreement; (5) terminate the Working Agreement because of its violation. In the event our employees go on strike under the circumstances first above mentioned, they will have subjected the Union and themselves to possible legal action. Marysville strikers did not appear to picket at the Superior plant. Employees reported to work as usual, and Respondent took no action against employees on the basis of the letter. The complaint alleges only that Respondent violated Section 8(a)(1) by the September 15, 1969, letter to the Superior plant employees and the Union.2 The Trial Examiner found that section I of 2 The earlier letters were also the subject of unfair labor practice charges, but these were withdrawn after the Regional Director refused to issue 561 article 14 of the collective-bargaining contract gives employees the right to refuse to cross a picket line; that section 3 of article 14 and section 3 of article 18 are applicable only to disputes between the Union and Respondent respecting benefits for the Superior plant employees; that Respondent erroneously stated in its September 15 letter that employees who refused to cross the stranger picket line at the Superior plant would thereby breach the existing collective-bargain- ing contract and expose themselves to legal liability and disciplinary action; and that thereby Respon- dent interfered with, restrained, or coerced its employees in their contract and Section 7 rights in violation of Section 8(a)(1) of the Act. Respondent disputes the Trial Examiner's interpretation of articles 14 and 18 of the contract. It contends that these two articles are independent of one another; that the introductory words of section 3 of article 14-"Irrespective of all other provisions of this Agreement"-emphasize that this provision is to have paramount status in the labor agreement; that refusal to cross a stranger picket line is a strike and subject to the delayed procedure set forth in section 3 of article 14; that the September 15 letter correctly stated that the strike was a violation of the bargain- ing agreement and correctly described the steps that Respondent might take to remedy the situation; and that consequently the letter was not violative of Section 8(a)(1). It is apparent that the dispute between the parties is entirely over the meaning of articles 14 and 18 of the bargaining agreement. There is no question of antiunion animus on the part of Respondent in sending the September 15 letter to employees and the Union. Each party believed in good faith in its own interpretation of the agreement. Nothing ever hap- pened as the result of Respondent's sending the letter. Pickets did not appear at the plant as feared. No employee refrained from reporting to work. No employee was disciplined. What we are asked to do in essence is to issue an advisory opinion as to the meaning of certain clauses in a collective-bargaining agreement. Although the Board has authority to construe a collective-bargaining agreement where necessary to determine whether an unfair labor practice has been committed,3 we do not believe that this is an appropriate case for such determination. The interrelationship of articles 14 and 18 is not as clear to us as it appears to have been to the Trial Examiner. There is a paucity of evidence as to the intent of the parties in incorporating these articles in present and past collective-bargaining agreements. The current bargaining contract will terminate in a few months. At that time the parties themselves will complaints based thereon. 3 NLRB v C& C Plywood Corporation, 385 U S 421 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be able to clear up any misunderstanding as to the meaning of the articles. Meanwhile, no' employee of the Superior plant has been affected adversely by the September 15, 1969, letter. In these circumstances, we do not believe that it would effectuate the policies of the Act for the Board at this time to attempt to resolve the meaning of the contract clauses in dispute. Accordingly, we shall dismiss the complaint. FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION The commerce facts and the qualifications at all pertinent times of the Company as an employer engaged in commerce in a business affecting commerce and the Union as a labor organization within the meaning of Section 2(2), (5), (6), and (7) of the Act are conceded by the parties and the Trial Examiner so finds. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN , Trial Examiner : On July 8 and 9. 1971, the Trial Examiner conducted a hearing at Superior, Montana, to try issues raised by a complaint issued on May 11, 1970, based upon a charge filed by the Union on September 29, 1969. The complaint alleged that Diamond National Corporations violated Section 8(a)(1) of the National Labor Relations Act, as amended , (hereafter the Act) by sending a letter dated September 15 to Local Union No. 3-249, International Woodworkers of America, AFL-CIO,2 and distributing copies thereof to its Superior employees represented by the Union which allegedly threatened those employees with discharge and both the Union and those employees with legal action in the event the latter honored a picket line the Company anticipated would be set up by another union at Superior the following day 3 The Company conceded sending the letter but denied any violation of the Act All parties appeared by counsel and were afforded full opportunity to adduce evidence, examine and cross-exam- ine witnesses, argue, and file briefs. Briefs were filed by the General Counsel , the Union, and the Company. Based upon his review of the entire record ,4 observation of the witnesses , perusal of the briefs and research, the Trial Examiner enters the following Hereafter called the Company z Hereafter called the Union or IWA Local 3-249 3 Add 1969 to all further date references omitting the year II. THE ALLEGED UNFAIR LABOR PRACTICE A Background and Related Events preceding the September 15 Letter 1. The Company's operations The Company's Northwest Lumber Division consists of three lumber manufacturing and distribution plants locat- ed at Superior , Montana, Albeni Falls, Idaho, and Coeur d'Alene, Idaho. The employees at all three plants are represented by local affiliates of International Woodwork- ers of America, AFL-CIO (hereafter IWA). IWA Local 3-10 represents the employees at the two Idaho plants and IWA Local 3-49 represents the employees at the Montana plant. 2 The first "stranger" picketing incident-Superior In early August 1969, the Company contracted for remodeling work at its Superior plant with Rolie Machine Works, a nonunion construction contractor. The Company set up a reserved gate for the Rolle employees to enter the plant premises about a block and a half beyond the main employee gate. On August 11, after previous efforts by its business representative to persuade the Company to substitute a union contractor for Rolie were unsuccessful, Carpenters Local 28 (of Missoula, Montana) began picketing both the main and Rolle gates The Superior employees refused to cross the picket line. In meetings with the Company before and after the commencement of picketing, representatives of the Union expressed sympathy for Carpenters Local 28's cause, and company representatives stated it was none of the Union's business. At the latter meeting (called the same day picketing started), the Company took the position that the 4 The Company motion to correct the record, without opposition, is granted The corrections appear in Appendix A [Omitted from publication I DIAMOND NATIONAL CORPORATION Superior -employees were on strike and therefore in violation of the currently effective company-union con- tract 5 The union representatives protested there was no strike, those of its members who so chose simply were exercising their rights to refrain. from crossing the picket line for whatever reason personally motivated them (principle, sympathy, fear, etc ). Later that same day, the Company delivered a charge to the Board's Regional Office alleging Carpenters Local 28's violation of the secondary boycott provisions of the Act, served a copy on that organization, and delivered a letter to Clarence Wright, president of the Union. After setting out its recognition of the identity of the picketing organization and the objectives of that organization, the Company's letter stated that: Our current Working Agreement with your Union makes it totally and completely clear that your Local Union is not to strike our operation except under certain spelled out procedures. We regard the strike that took place this morning to be totally and completely in violation of our Working Agreement. Our attorney has indicated that we may take any or all of the following courses: (1) Sue your Union, and also its leadership, for damages occasioned by this illegal strike,. (2) Seek an injunction to bar this strike, (3) File unfair labor practice charges against your Union and its leadership, for taking this action without prior negotiations and following the steps required by our Working Agreement; (4) Terminate all employees (or dust the leaders) for engaging in conduct in violation of our Working Agreement; (5) Terminate the Working Agreement because of its believed breach. We prefer to take none of these courses because we rather imagine that this whole affair probably caught your Union and our employees by surprise, which resulted in some confusion and a lack of understanding as to what should be done As a consequence, if our employees return to work forthwith and your Union no longer continues this action, which is for all practical purposes a strike contrary to our contract, we will simply forget the whole affair and look upon it as an unfortunate misunderstanding. Copies of the letter were mailed to the Union's members. Wright and other representatives of the Union appeared in the vicinity of the picket line throughout the day. Wright and another union representative admittedly told employ- ees who inquired that they were not going through the picket line (Wright and all other officers and representa- s While the record does not disclose that the Company specified the sections of the contract on which it relied, it is apparent that it relied either on sec 3, of art 14, which provides Irrespective of all other provisions of this Agreement, it is understood and agreed that the Union will notify the Company in writing not less than ten (10) consecutive calendar days in advance of the date and time that any strike action is to be commenced Under no circumstances shall such notice be given until after first-a meeting has been held between the top management of Diamond Lumber Division-North- west, Diamond National Corporation, through its Industrial Relations Department or representative and representatives of the Western States Regional Council of the International Woodworkers of America (such as provided in Section I of Article I8-Grievance Procedure), and the Union being dissatisfied with the results of that meeting, then, second-the Union requests the intervention of the Federal Mediation and Conciliation Service and either that Service has advised both 563 tives of the Union are full-time company employees). While Wright testified that he was advised the evening before picketing commenced by Carpenters Local 28 of its intent to picket the next day and that he telephoned a number of the Union's members to inform them a picket line would be at the plant the next day and told them he personally did not intend to cross it, there is no evidence the Company was aware of these conversations prior to September 15. Pickets did not appear the next day and all employees reported for work. There were no reprisals. 3. The second "stranger" picketing Incident-Albeni Falls Carpenters Local 2687 called an economic strike at the Company's Marysville, California, plant on about August 18. On September 11, in furtherance of that dispute, it placed pickets outside the Alberti Falls employee entrances. The Albeni Falls employees refused to cross the picket line. The Company promptly (the same day) delivered a letter to George Dimico, executive vice president of IWA Local 3-10, which, after stating that: We believe your observance this morning of picket- lines established at our Albeni Falls plant by persons purporting to be employees of our Company at Marysville, California, constituted a most serious breach of our Working Agreement with your Union.7 continued with a second and third paragraph almost identical to the two paragraphs of its letter to IWA Local 3-249 reproduced above (sec. II, A, 2). Copies of the letter were distributed to employees who could be reached. Representatives of IWA Local 3-10 were observed in the vicinity of the picket line at various times during the day Two stewards went into the plant to advise two employees who went to work before picketing started of the presence of the pickets. The two employees left work Pickets did not appear the next day and all employees reported for work. There were no reprisals. 4. The third "stranger" picketing incident-Coeur d'Alene Carpenters Local 2687 pickets next appeared, on September 15, at the Company's Coeur d'Alene plant. The employees refused to cross the picket line. parties in writing that it refuses to assert jurisdiction or that Service has had the opportunity of holding at least one meeting of the parties in an effort to resolve the dispute involved or on sec 3 of art 18 , which provides It is agreed that during the period of this Agreement there shall be no strikes, cessation of work , picketing, or lockouts, until the procedures specified in this Article have been exhausted or both 6 Sec I of art 14 provides that At no time shall employees be required to go through picket lines r The contracts between the Company and IWA Local 3-10 covering the Albeni Falls and Coeur d'Alene plants contain language identical to that of the Company-IWA Local 3-249 contract reproduced in this Decision All three contracts were in full force and effect at all times pertinent to this case 564 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD The Company again dispatched a letter, again to George Dimico, again asserted its claim of contract breach, again repeated the courses it believed open to it because of the alleged breach, but closed with a far different paragraph, i.e.; Under the circumstances it is quite probable we will discharge all employees who do not report for work on their scheduled shift on Tuesday, September 16, 1969. Copies of the letter were distributed to those Coeur d'Alene employees who could be reached. The evidence is iundisputed that several IWA Local 3-10 stewards were present for a considerable time near the picket line; that one of the stewards, Oscar Peterson, provided refreshments for the Marysville pickets from the back of his pickup truck and had a brief conversation with a railroad employee (a railroad spur runs into the plant). Three company officials testified that they saw three IWA Local 3-10 stewards 8 distributing leaflets to Coeur d'Alene employees prepared by Carpenters Local 2687 stating that organization's version of the merits of its dispute with the Company and saw such leaflets in Peterson's pickup. Peterson testified the only leaflets in his pickup were thrown there by employees, that they were stored in an auto owned by one of the Marysville pickets prior to distribution, that only ' Marysville employees distributed leaflets, and that he answered the railroad employee's inquiries concerning the identity of the picketing organiza- tion and its reasons for picketing. Peterson's testimony to the absence of leaflet storage in his pickup and no leaflet distribution by any IWA Local 3-10 steward, representa- tive, or member was corroborated by steward Jesse Root. While Peterson further testified that the IWA Local 3-10 stewards employed at Coeur d'Alene met with the Marysville pickets the night before picketing commenced and expressed sympathy for the cause of the Marysville strikers, there is no evidence the Company had any knowledge of this prior to September 15. Pickets did not appear the next day and the employees reported for work. IWA Local 3-10 stewards Peterson, Root, and Felts were given 2-day disciplinary layoffs for alleged overzealous support of the Marysville pickets at the picket line when they reported for work. The Union processed grievances through the grievance procedure short of strike actions without success. No other action was taken by the Company against the Coeur d'Alene employees, nor against IWA Local 3-JO. B. The September 15 Letter-Superior The Company anticipated that the Marysville pickets would next appear at Superior, since rumors to that effect were picked up by its supervisors at the time of the Coeur d'Alene picketing. The evening of September 14, a motel operator at Superior telephoned the Company's plant manager at his 8 Oscar Peterson, Jesse Root, and Henry Felts 9 The grievance procedure is open-ended, i e, it does not contain an arbitration provision The two IWA locals therefore have a choice either to strike over a grievance which has not been resolved to their satisfaction in the discussion steps of the grievance procedure (after complying with sec 3 of art 14) or accepting the last company answer home in Superior to inform him that four strangers giving Marysville, California, addresses had registered in and were meeting with Clarence Wright, IWA Local 3-249's president. The following morning, the plant manager prepared and caused the delivery to Wright of the letter on which the complaint in this case is based. Copies of the letter were circulated to the Superior employees. The letter noted the Company's receipt of rumors that members of Carpenters Local 2687 who were on strike against the Company at Marysville might appear at the plant the following day (September 16), and asserted that: If such a picket line is established and our Superior employees choose to `honor' it, such action will constitute a most serious violation of our Working Agreement with your Union. The letter then repeated the standard paragraph of all four letters to IWA Locals 3-10 and 3-249, seting out the courses the Company claimed it had open to it in view of the asserted breach (see first quoted paragraph of the August 11 letter set out in sec. II, A, 2, above), and closed with the statement that: In the event our employees go on strike under the circumstances first above mentioned, they will have subjected the Union and themselves to possible legal action. Pickets did not appear at the plant on September 16 or subsequently. There was no interruption of production. C. The IWA Charges IWA Locals 3-10 and 3-249 filed simultaneous charges with the region over all the company responses to the three "stranger" picketing incidents and anticipated "stranger" picketing incident at Superior just noted.io The Region issued a complaint over the September 15 letter and suggested the charges over the other picketing incidents be withdrawn by the two unions; they were withdrawn. D. Contentions of the Parties 1. The General Counsel and the Union The General Counsel and the Union argue that employ- ees who refuse to go through the picket line of a "stranger" labor organization (because of sympathy for the picketing organization's objectives, or as a matter of principle, or through fear of retaliation) engage in concerted activity protected by Section 7 of the Act and therefore either the threat or levy of punitive action against either employees who so refuse or the labor organization which represents them violates Section 8(a)(1) of the Act. They further contend that the September 15 letter sent by the Company to its Superior employees and their Union contains threats against both the employees and the Union for the anticipated exercise by the Superior employees of to Dispatch of the September 15 letter led to the charge and complaint with which we are here concerned (Case 19-CA-4524-1); the August I I incident figured in the charge filed by IWA Local 3-249 in Case 19-CA-4524-2, the September I I and 24 incidents figured in the charge filed by IWA Local 3-10 in Case 19-CA-4524-3 DIAMOND NATIONAL CORPORATION their rights under Section 7 of the Act and is therefore violative of Section 8(a)(1) of the Act. 2. The Company The Company argues that when the Union, representing employees covered by a collective agreement, enters into an agreement requiring the completion of several steps prior to calling a strike against the Company, this requires the employees to go through any picket line, without regard to who pickets or what dispute precipitates the picketing, until the Union has exhausted all of the steps in question. The Company contends that section 3 of article 14 of the current working agreement between IWA Local 3-249 and the Company (and the same language in current working agreements between IWA Local 3-10 and the Company) so requires and therefore the Company's statements in the September 15 letter simply (and accurately) express its legal rights and remedies under the contract. The Company further contends that, in any event, its September 15 letter does not contain any language constituting a threat violative of the Act. The Company does not argue that the no-strike ban of section 3, article 18 of the company-union agreement and the Company-IWA Local 3-10 agreements require the employees covered by those agreements to cross "stranger" picket lines, recognizing that the section 3, article 18 bar applies only to section 1, article 18 employee grievances over company interpretation or application of the agree- ment.ii 3. The General Counsel-Union rejoinder The General Counsel and the Union argue that both section 3, article 14 and section 3, article 18 of the company-union agreement are inapplicable to "stranger" picketing situations, that the former applies to economic disputes between the Union and the Company over the rates of pay, wages, hours, or working conditions of the Superior employees and the latter applies to Superior employee grievance disputes over their discipline, rates of pay, wages, hours, or working conditions wherein the employee grievance raises questions concerning the Com- pany's interpretation or application of the contract; and that the Company's claimed interpretation of section 3, article 14 is completely inconsistent with, and would completely negate, the thrust of section 1, article 14, which guarantees to Superior employees (and employees covered by contracts between the Company and IWA Local 3-10, which contain the same language) the right to refrain from crossing picket lines. 4. The Company's rebuttal The Company contends that there is no inconsistency ii As the United States District Court for Maryland noted in a similar situation, (General Cable Corp v IBEW Local 1644, decided July 30, 1971, 77 LRRM 3053), "The only grievance or dispute between the Company and Local 1644 is the result of the strike and not the cause of the strike" (Emphasis added) The Court went on to point out that while the contract required that an employee or union grievance over a company levy of disciplinary penalties for employee refusal to cross a picket line and/or un.on encouragement thereof be submitted to the contract grievance 565 between section 1 and 3 of article 14, section 3 simply requires exhaustion by the Union of all steps listed therein before the employees may exercise their section 1 rights. E. Analysis and Conclusions The picket line provision (section 1, article 14) has been in successive contracts between the Company and the Union since at least 1953; the notice, joint discussion, FMCS referral, and 10-day strike notice provision (sec. 3, art. 14) have been in their successive agreements since 1961. The Union followed the steps of section 3 of article 14 on only one prior occasion-prior to calling an economic strike in 1962. The only "stranger" picketing incidents which have occurred since 1962 are those described in this Decision. In each of these incidents, the Union and its sister Local, IWA Local 3-10, have asserted the employees' right under section 1 of article 14 to refrain from crossing picket lines and the inapplicability of section 3 of article 14. The Company has asserted that by such action its employees and the two unions were in violation of the latter provision and subject to punitive action. In a case involving two locals of the Brewery Workers Union and Falstaff Brewing Company, Falstaff Brewing Co. v. Lindberg, Parish of Orleans, La. Civil District Court, 42 LRRM 2228, Local 130 went on strike in an economic dispute against Falstaff at Galveston, Texas. At a later date, representatives of the International Union assisted Local 130 when it picketed Falstaff's New Orleans plant. The New Orleans employees were covered by a contract with both the International Union and its Local 158. That contract provided, inter aba, that "Employees shall not be required to cross picket lines ...." The New Orleans employees refused to cross Local 130's picket line. The court ruled that inasmuch as the New Orleans employees "had a contractual right to refuse to cross the picket line the employees did not violate the contract by refusing to cross and the International Union did not violate the contract by assisting Local 130 in its picketing activities at New Orleans. The company-union contract here has similar language; the anticipated picketing organization is similar (a "strang- er" organization); for a similar object (to secure a favorable contract at another plant); the anticipated reaction of the Union is similar (encouragement of the employees to exercise their contractual right to refrain from crossing the picket line); and the anticipated reaction of the employees is similar (to honor the picket line). However, a finding of section 3, article 14 inapplicability must lie before section 1 of article 14 can be given such sway. The Trial Examiner does so find and conclude, for the following reasons. In this case the Company knew it was threatened with procedure and barred resort to strike action over such grievance, the grievance procedure and accompanying strike ban did not apply to a company grievance against its employees and the Union representing them over the former's refusal to cross a stranger picket line and/or union encouragement thereof That reasoning applies with equal force here To the same effect, see Washington-Baltimore Newspaper Guild, Local 35, etc, 186 NLRB No 133 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD possible picketing by Carpenters Local 2687 of its Superior facilities in furtherance of that Local's strike against the Company to secure improved economic benefits for the Company's Marysville employees. It knew it was not threatened by a strike by IWA Local 3-249 to secure improved economic benefits for its Superior employees. In the judgment of the Trial Examiner, section 3 of article 14 and section 3 of article 18 both were and are intended to preclude IWA Local 3-249 from calling a strike against the Company before discussing and attempt- ing amicably to resolve disputes between IWA Local 3-249 and the Company over issues wherein IWA Local 3-249 strikes and pickets to secure some benefit or relief for the Superior employees. The strained nature of the Company's asserted interpre- tation becomes evident from a mere recitation of its application to the anticipated situation: (1) stranger pickets appear; (2) employees register with the Union their objection to crossing the picket line; (3) the Union seeks and secures a conference with the Company (while the objecting employees cross the picket line); (4) the Union, following the conclusion of the meeting with the Company, addresses a request to the FMCS requesting its interven- tion and awaits a written reply declining to come in or participates in at least one meeting with the Company under FMCS auspices (the objecting employees continue to cross the picket line); (5) following receipt of written FMCS declination or one meeting under its auspices, the Union serves a 10-day notice on the Company declaring that the objecting employees still object to crossing the picket line (the objecting employees still cross the picket line for the ten-day period); (6) finally, on expiration of the 10-day notice period, the objecting employees exercise their section 1, article 18 (and Sec. 7 of the Act) right and cross the picket line. In practical effect, this application of section 1, article 18 reduces it to absurdity and, in the Trial Examiner's judgment, was neither intended nor contemplated by the parties. While there is a line of cases"- which hold that employees engage in unprotected conduct when they respect a "stranger" picket line and the contract between their employer and union representative contains no-strike and arbitration provisions, these cases are distinguishable from this situation and, in any event, are countered by more persuasive authority on cases more closely analogous to the instant situation.13 Another line of cases, 14 which apparently stands for the principle that the Union may be exposed to legal liability were it to encourage, authorize, sanction, or, ratify Carpenters Local 2687's strike and join therein (which is purely speculative with regard to the September 15 incident), still would only expose IWA Local 3-249 to legal 12 Teamsters Local 79 v N L R B (Redwing Carriers), (C A D C ), 325 F 2d 101 1, cert denied 377 US 905, N LR B v L G Everist, (C A 8), 334 F 2d 312, Local 12419, District 50, United Mine Workers (National Grinding Wheel Co, Inc), 176 NLRB 628 13 Montana-Dakota Utilities, 189 NLRB No 111, Hoffman Bev Co, 163 NLRB 981, N L R B v Coast Delivery Service, (C A 9), 437 F 2d 264, N L R B v Swain & Morris Const Co, (C A 9), 431 F 2d 861; N L R B v Difco Laboratories, (C A 6), 427 F 2d 170, N LR B v So Greyhound Lines, (C A 5), 426 F 2d 1299, NLRB v Alamo Express, 430 F 2d 1032, action and not those Superior employees who may wish to exercise their free and individual right under section 1 of article 18 to refrain from crossing the anticipated picket line.15 Based on the foregoing, the Trial Examiner finds and concludes that the Company erroneously stated in its September 15 letter that those Superior employees who chose not to cross a picket line established by Carpenters Local 3-2687 at Superior would thereby breach the Company-IWA Local 3-249 agreement and expose them- selves to legal liability and other consequences therefor, up to and including discharge. It is therefore the conclusion of the Trial Examiner that if the Company's September 15 letter to the Union and the Superior employees contains language which may reason- ably be interpreted as having the effect of interfering with, restraining, or coercing its employees in the exercise of their section 1, article 14 rights under the contract and their Section 7 rights under the Act, the Company thereby violated Section 8(a)(1) of the Act. The sole remaining question is whether the September 15 letter contained such language. The letter commences with an accurate statement of fact-that the Company has heard rumors that roving pickets from Carpenters Local 2687, which was on strike at a company plant in Marysville, California, might appear at the Superior plant the following day. The next two sentences contain erroneous expressions of the Company's position: if the Superior employees honor such a picket line, they shall be violating the company- union agreement. The following sentence, after reiterating the Company's position that the Superior employees shall be violating the Company-Union agreement if they honor Carpenters Local 2687's picket line, outlines the reprisal the Company might take against the Superior employees and the Union in the event the Superior employees did not accept the Company's erroneous position: discharge of all employees refusing to cross the anticipated picket line or just the Union's leaders; termination of the contract; suit against the Union and its leaders for damages and an injunction; filing of an unfair labor practice charge against the latter. In the closing sentence, the Company advised the Superior employees and the Union that it was keeping all options open in the event any of the employees, despite the September 15 letter, nevertheless chose not to cross the anticipated Carpenters Local 2687's picket line the follow- ing day, stating that in such event "they will have subjected the Union and themselves to possible legal action." The Board has held with court approval on a number of occasions that employer distribution of false, misleading, or inaccurate statements to employees regarding their contract rights and/or rights under the Act violates Section N LR, B v Union Carbide Corp, (C A 4),440 F 2d 54, 58, Ourisman Chev Co v. Automotive Lodge 1486, (D C D C), 77 LRRM 2084 14 General Cable Corp v IBEW Local 1798, D.C Tenn, 77 LRRM 3123, Disneyland v Operating Engineers, Cal S Ct, 75 LRRM 2661, Jersey Farms Milk Service v Meat Cutters, D.C Tenn, 69 LRRM 2409, Honeywell, Inc v IUE, Pa Ct Corn Pleas, 66 LRRM 2027, etc 15 See particularly Ourisman Chev, Falstaff Brewing, plus other cases cited in In I 1 and 13 above DIAMOND NATIONAL CORPORATION 8(a)(1) of the Act (Dayton Food Fair Stores v. N.L.R.B., 399 F.2d 153 (C.A. 6), Amalgamated Clothing Workers v. N.L.R B. (Black-Southland Sportswear), 420 F.2d 1296; N L R.B v. May Aluminum, 398 F.2d 47 (C.A. 5); Wald Mfg Co, 176 NLRB) including implied or actual threats of reprisal for employee exercise of a contract or statutory right (N.L.R.B. v. Langenbacher, 398 F.2d 459 (C.A. 2); Strauss Levi & Co, 172 NLRB No 57). The Trial Examiner has held above that the Company inaccurately stated in its September 15 letter to its Superior employees that, if they chose to exercise their section 1, article 18 contract right and Section 7 of the Act statutory right to refrain from crossing a "stranger" picket line the next day, they would thereby violate the company-union contract. While the Company attempted to carefully and legalistically limit its remarks, it nevertheless proceeded next to convey the clear implication that any employee who chose to exercise his rights stated above and refrained from crossing the picket line in question, thereby risked loss of his job, loss of his contract rights, and loss of his interests in monies within the Union's treasury. The Trial Examiner therefore finds and concludes that by so doing the Company interfered with, restrained, and coerced its Superior employees in the exercise of rights guaranteed them in Section 7 of the Act and thus violated Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce, in a business affecting commerce, and the Union is a labor organization as those terms are defined in Section 2(2), (5), (6), and (7) of the Act. 2. The Company violated Section 8(a)(1) of the Act by, on September 15, 1969, giving its Superior employees the unsolicited and inaccurate advice that they would be in_ violation of the company-union contract if they refused to cross the picket lines of Carpenters Local 2687 the following day and warning that they might lose their jobs, lose their contract rights, and lose benefits which might otherwise accrue to them from expenditures from the union treasury. 3. The unfair labor practice herein specified affects commerce as defined in the Act. THE REMEDY Having found that the Company engaged in an unfair labor practice which violated Section 8(a)(1) of the Act, the Examiner shall recommend that the Company cease and desist from further commission of the unfair labor practice and post and maintain notices designed to effectuate the purposes of the Act. Upon the basis of the foregoing findings of fact, conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, the Trial Examiner recommends that the Board issue the following recommended: 16 ORDER Diamond National Corporation , its officers, agents, successors, and assigns , shall: 1. Cease and desist from advising its Superior employ- 567 ees they will be or are in violation of the working agreement between Diamond National Corporation and International Woodworkers of America, AFL-CIO, Local Union 3-249, in the event they choose to honor a picket line established by a union other than theirs and warning them of reprisals in the event they so choose, and in any like or related manner interfering with its employees' exercise of their right to assist Local 2687, International Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization. 2. Take the following affirmative action designed to effectuate the purposes of the Act. (a) Post at its Superior, Montana, plant copies of the attached notice marked "Appendix B." i7 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by the Company's authorized representative, shall be posted by it immediate- ly upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced , or covered by any other material. (b) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Decision, what steps the Company has taken to comply herewith.is 16 in the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions , and Order, and all objections thereto shall be deemed waived for all purposes iT In the event that the Board's Order is enforced by a Judgment of the United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 18 In the event that this recommended Order is adopted by the Board, after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 19, in writing , within 20 days from the date of this Order, what steps the Company has taken to comply herewith " APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial, that we violated Federal law by mistakenly advising you on September 15, 1969, that you would violate the contract between your Union and our Company by crossing the picket lines of Carpenters Local 2687 which we expected the next day and warning you of reprisals therefor, WE WILL NOT in the future tell you that you are in violation of our agreement with your Union and warn you that you may be subject to reprisal if you choose to honor picket lines established at our premises by Carpenters Local 2687 or any labor organization other than your own in the course of any dispute between such organization and our Company. 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIAMOND NATIONAL This notice must remain posted for 60 consecutive days CORPORATION from the date of posting and must not be altered, defaced, (Employer) or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be Dated By directed to the Board's Office, Republic Building, 10th (Representative) (Title) Floor, 1511 Third Avenue, Seattle, Washington 98101, Telephone 206-442-4532. This is an official notice and must not be defaced by anyone.