National Tea Co.

614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Tea Company, Standard Grocery Division and Lawrence Rey. Hamilton . Case 25-CA-3893 July 31, 1972 DECISION AND ORDER On April 30, 1971, Trial Examiner George L. Powell issued the attached Decision in this proceed- ing. Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs, and has decided to affirm the Trial Examin- er's rulings, findings, and conclusions for the reasons stated below, and to adopt his recommended Order.' Without reaching the merits of the case, we shall order that the complaint herein be dismissed in its entirety because, as found by the Trial Examiner, the parties had voluntarily submitted the problem to a neutral tribunal where it was fully litigated; the proceeding appears to have been fair and regular, and the decision of the tribunal is not clearly repugnant to the purposes and policies of the Act.2 In these circumstances, we believe that the desirable objective of encouraging the voluntary settlement of labor disputes will best be served by our recognition of the tribunal's award. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBERS FANNING AND JENKINS, dissenting: The contract here purported to give the Employer i The Charging Party and General Counsel have excepted to certain credibility findings made by the Trial Examiner it is the Board's established policy not to overrule a Trial Examiner 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F.2d 362 (C A. 3) We have carefully examined the record and find no basis for reversing his findings 2 Spielberg Manufacturing Company, 112 NLRB 1080 Mastro Plastics Corp v N L.R B, 350 U S 270, 278-280 (1956) In Mastro, the Supreme Court held that, even in the case of unfair labor practice strikes, the question as to whether employees may properly be discharged for violating a no-strike clause is one which must be answered solely by determining the meaning and interpretation of the governing collective agreement Contract interpretation , of course, is a function peculiarly within the expertise of arbitrators. Thus, contrary to the views of our dissenting colleagues, we find this type of case to be particularly appropriate for deferral to arbitration and for the application of our Spielberg principles 3 Our colleagues' reliance on Mastro Plastics Company v N L R B, 350 U S 270, for the proposition that the validity of discharging those who strike despite a no-strike clause is solely a contract interpretation question, is misplaced Though stating that a union may by appropriate and specific language waive the right of employees to strike against unfair labor the right to discharge employees who engaged in "unauthorized strikes," i.e., strikes not authorized by the specified union body. But some strikes, for example, strikes over unfair labor practices, may be protected even though not authorized by a union. The same may be true of some economic strikes. Yet under the contract, the Employer can fire the strikers engaged in such statutorily protected strikes, provid- ed the Union did not authorize them. Thus on its face, the contract provision purports to confer on the Employer the right to violate Section 8(a)(3) of the Act. The arbitration award here upheld the validity of the strikers' discharges. In so doing, it resolved the only dispute between the Union and Employer: whether participants in an unauthorized strike lasting less than 24 hours were, or were not, subject to discharge. The answer to this issue could not possibly determine whether the strike was protected, and the employees had rights, under the statute.3 As it happened, the award went against the strikers, and their discharge was sustained because the strike was not "authorized." Thus, if the strike were to any extent protected by the Act-a circumstance un- known at present-the contractual criterion of nonauthorization of the strike will have superseded the statute as the measure of the employees' protection. In short, the contract does permit the Employer to violate Section 8(a)(3) and (1), the award does not consider this issue, and the Act is subverted by the arbitration process and the majori- ty's deferral to it.4 In addition, in the Wagoner Transportation Compa- ny case,5 the Board was confronted with a clause in material respects identical to article VII in this case.6 In that case, at 457, the Board in interpreting this clause found: ... although unauthorized strikes are outlawed by the Master Agreement, it is clear from the practices, the Court held that the usual no-strike clause ("the Union agrees to refrain from any strike or work stoppage during this agreement") was not such a waiver. Here the clause was substantially narrower, giving (or, in the Union's view, withholding from) the Employer a right to discharge employees engaged in "unauthorized" strikes, i e., strikes not authorized by the Union Under Mastro Plastics, the present clause cannot be interpreted to waive discipline for unfair labor practice strikes-and possibly net for some economic stokes. Any contention to the contrary would be "nearly frivolous," as the majority observed in Peerless Pressed Metal Corporation, 198 NLRB No. 5, and for the arbitrator so to interpret the contract would be repugnant to the Act and contrary to Spielberg standards. The majority's apparent willingness to let an arbitrator disregard Mastro Plastics is an additional illustration of the basic unsoundness of its Colyer deferral policy. 4 We would also note that the arbitration process in this case has the same defects, as a result of which some of the same inadequacies appear to have entered into the award , as those pointed out in the dissent in Terminal Transport Company, 185 NLRB No. 96. 5 Wagoner Transportation Company, 177 NLRB 452, enfd 424 F.2d 628 (C.A 6) 8 The only difference between the two clauses is that the words "Employer" and "employee" are used m one instead of the words "Company" and "employees" respectively. 198 NLRB No. 62 NATIONAL TEA COMPANY 615 Agreement itself that the parties agreed that the extreme penalty of discharge would not be applicable to employees who participate in unauthorized strikes of less than 24 hours' duration, as the Agreement gives the Respondent as an Employer only the right to impose "reason- able discipline short of discharge" upon such employees. It is accordingly held that to the extent that the Agreement prohibited the Respon- dent from exacting the extreme penalty of discharge on employee-participants in wildcat strikes of less than 24 hours' duration, such strikes are protected activities under the provisions of Section 7 of the Act which guarantees to employees the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." The court agreed with the Board's interpretation of the clause. Thus, to accept blindly the Committee's decision in these circumstances, where the Board with court affirmance has previously found that similar lan- guage did not waive otherwise clearly protected activity is a patent abdication of the Board's statutory responsibility. Because nothing can be more "clearly repugnant" to the Act, for our colleagues to hold otherwise is to completely emascu- late the principles of Spielberg Manufacturing Compa- ny, 112 NLRB 1080, 1082. As we have pointed out in our dissents beginning with Collyer and running through a series of other cases, including particularly National Radio Compa- ny, Inc., 198 NLRB No. 1, the majority's Collyer policy of deferring to arbitration results in substitut- ing the protection of the contract for that of the statute, and in allowing the parties by contract to cut down and even eliminate the protection afforded by the statute. This case provides a clear and patent demonstration of such voiding of the Act's protec- tion. The Act seems to us paramount. We cannot understand the majority's contrary view, much less follow it, and would determine the issues here on their merits and in accordance with the Act. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE L. POWELL, Trial Examiner: Upon a charge filed on August 7, 1970, by Lawrence Rex Hamilton (full name supplied at the trial), herein called Charging Party or Hamilton, against National Tea Company, Standard Grocery Division, herein called the Respondent, the Regional Director for Region 25 of the National Labor Relations Board, herein called the Board, issued a complaint on behalf of the General Counsel of the Board on October 19, 1970, alleging violations of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended (29 U.S.C., Sec . 151 et seq.), herein called the Act. In its duly filed answer, Respondent, while admitting certain allegations of the complaint , denied the commission of any unfair labor practice. Pursuant to a notice , a trial was held before me in Indianapolis, Indiana, on January 21 and 22, 1971, where the parties were present , were represented by counsel, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to present oral argument, and to file briefs . After an extension of time had been granted, briefs were filed by Respondent, General Counsel, and Charging Party, on March 5, 1971. Upon consideration of the entire record, including the briefs filed with me, and specifically upon my observation of the witnesses as they testified before me,' I find, for the reasons hereinafter set forth, that the General Counsel has failed to establish by a preponderance of the evidence that Respondent violated the Act as enumerated in the complaint. Accordingly, I will recommend that the complaint be dismissed in its entirety . I also find that the matter was resolved in accordance with the collective- bargaining agreement by a decision following arbitration in which none of the policies of the Act were violated, and a fair and regular arbitration proceeding had been held. FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE EMPLOYER Respondent admitted, and I find, that Respondent is an Illinois corporation maintaining principal offices in Chica- go, Illinois, with a place of business in Indianapolis, Indiana, where it is engaged in selling, warehousing, and distributing meats, produce, groceries, and related prod- ucts. During the year preceding the issuance of the complaint, Respondent, in the course and conduct of its business operations in Indiana, sold and distributed products, the gross value of which exceeded $500,000. During the same period of time, Respondent shipped, transported, and received products valued in excess of $50,000 at its facilities in Indiana in interstate commerce directly from States other than the State of Indiana. II. THE LABOR ORGANIZATION Chauffeurs, Teamsters, Warehousemen and Helpers Local Union No. 135 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is admitted to be, and I so find, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The complaint and notice of hearing alleged that Respondent had violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, in that "on or about February 10, 1970, Respondent did suspend and on or about February 13, 1970, did discharge [Lawrence] Rex i Cf Bishop and Malco Inc, 159 NLRB 1159, 1161. 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hamilton and Leamon Romans," herein called Romans, because "said employees joined and assisted the Union, ... engaged in other Union activity and concerted activities for the purpose of collective bargaining and mutual aid and protection and because Respondent believes that they encouraged other employees to engage in concerted activities and/or because said employees en- couraged other employees to engage in concerted activities, to wit, a strike." A. Background and Union-Respondent Relationships During the 10-year period preceding this case, Respon- dent's warehouse employees have been represented for purposes of collective bargaining by the Union. During these years, relationships between the Respondent and the Union were characterized (without contradiction) by John C. Riordan, director of labor relations, as "good." The parties have negotiated a series of successive collective- bargaining agreements. Riordan's credited and uncontrad- icted testimony is, "to my knowledge, prior to the incident in question in these proceedings, we have not had a work stoppage. Our volume of grievances are within the expected limits. We have not charged the Union with any unfair labor practices. They have not charged us with any." Prior to February 10, 1970, Romans and Hamilton were employed by Respondent as warehouse lift drivers on the second shift, 4 p.m. to 12 midnight. While both were Local Union No. 135 members, pursuant to the agreement's union shop provisions, neither was an officer of, or acting in any representative capacity for, the International or any local union. The events on the second shift, February 9, 1970 During the course of the second shift on February 9, 1970, Respondent determined that some 18 to 19 employ- ees would be needed for 2 hours of overtime at the end of the regular shift. Article IV, section 8 of the Addenda agreement between the Union and Respondent (G.C. Exh. 3) sets forth the method of determining which employees would get overtime as follows: Overtime work, when required, shall be offered by seniority and shall be voluntary insofar as is reasonable and practical. When volunteers for overtime work are not sufficient to meet the requirements of the business, a reasonable effort shall be made to assign such work to least senior employees by classification who shall be required to work overtime as scheduled. It is expressly understood that nothing herein contained shall pre- clude the Employer's right to require a reasonable degree of overtime when necessary. Employees working overtime shall not displace another employee from his regular "bidjob." Pursuant to the Addenda, and in the practice thereunder, Bernard Erney, Respondent's second shift receiving fore- man, began a canvas of the 30 second-shift employees for overtime volunteers . Before the end of the shift, Erney asked both Romans and Hamilton to work the 2 hours of overtime. Both agreed to do so. Sixteen or seventeen other employees also agreed to work overtime. Those who have agreed to work overtime have always been "required to work," according to the credited testimony of Ralph D. Griner, warehouse transportation superintendent. At 11:55 p.m., Walter DeHosse , Respondent's shipping foreman, sounded the buzzer signalling second shift employees to "get ready to go home" and those "working overtime . . . to . . . start their rest period." As usual, those scheduled for overtime , including Romans and Hamilton, went downstairs to the cafeteria for the 10- minute break between the end of the regular second shift and the start of overtime. The events after the break At 12:05 a.m., DeHosse sounded the buzzer calling the employees on break back to work. However, none came upstairs. DeHosse went to the top of the stairs leading to the cafeteria and called down that "the rest period was over." Still, no one came up. DeHosse went into the warehouse momentarily, then "down into the basement." 2 DeHosse further testified that "Hamilton said they got a 20-minute break rather than 10 minutes," that he [De- Hosse] "said it was 10 minutes and time to go back to work," that Hamilton replied "we don't get 10 minutes, we get 20 minutes . . . because the day shift gets 20." DeHosse answered that the "second shift got 10 minutes," and that "Hamilton said, if that's the case, I'm going home." Romans' account of the conversation was that "there was a complaint by three or four [men] that 10 minutes wasn't enough . . . [and that they] wanted to talk about 20 minutes," that it was his "impression at the time that he [Hamilton] was saying something to the effect of the 20 minutes," and "there was a general discussion of getting 20 minutes or go home." Hamilton, however, testified that while "there was some discussion about . . . [the length of the rest period], I think," he did not talk to anyone about it, did not participate in the discussion "to my knowledge," and did not remember telling anyone he was going home. He said he "didn't really catch everything [DeHosse] said. . . . But I do know that he mentioned it was time to go back to work." DeHosse concluded the conversation telling the entire group including Romans and Hamilton "that the rest period was over and it was time to return to work." He then went upstairs. I credit DeHosse and find his testimony to more accurately relate the events than did the testimony of Hamilton. I am mindful that Romans' testimony tends to support that of DeHosse. 2 This is from the credited testimony of DeHosse Romans' account sometime a few minutes after the buzzer rang DeHosse came. to corroborates DeHosse when he testified that when DeHosse sounded the the top of the steps and hollered for them to come back up." Again, no one buzzer at 12 05 a in, "no one moved ... usually we waited on overtime moved, so he "came . . down in to the cafeteria and said. . that our 10 until the boss came down and hollered for them to go back And so minutes was up and for us to go back up and go to work." NATIONAL TEA COMPANY 617 The events upstairs According to Receiving Foreman Erney's testimony, DeHosse met Erney at the head of the stairs, and told him . . Mr. Hamilton said that they were requiring 20 minutes at this break, and that he [DeHosse ] informed them that it was only a 10-minute break and for them to return to work." According to Romans, the men in the cafeteria "all started getting up to go up. Rex Hamilton was in front and I stayed back to see what was going to happen, more or less, and the other four guys . . . I named . . . went on up and a few other guys, so I followed them on up. They went up the stairway . . . single file . . . headed towards the clock." According to DeHosse, "shortly" after he came up the stairs "Hamilton came up, followed in line by . . . several other employees . . . and [Hamilton] said he was going home."3 Erney testified that he "was standing at the doorway" at the head of the stairs with DeHosse, and he spoke to the whole group of employees. He told them ".. . that they voluntarily signed for overtime and that they were required to stay." Hamilton stated he "told Mr. Erney I was going home. I didn't feel like working." Erney's exact words to the group were "that they were not permitted to leave." 4 According to DeHosse, when Hamilton "went by and said he was going home . . . I told him . . . we weren't releasing him . . . he was scheduled to work overtime and we needed him for overtime." Both Erney and DeHosse told the group with Hamilton that they were not allowed to go home and that they were required to work over. Nevertheless, Hamilton proceeded to the timeclock, and was the first to punch out. Some 19 employees were lined up single file in front of the timeclock. From the testimony of Romans, Hamilton and Jim Walker had just clocked out when Chester Stover got to the clock (apparently he was the third in the line). Before Stover checked out, he wanted to talk "about this some more" and asked what were they going to do. Romans told him, "I was sick and ... was going home." Whereupon the 17 who had not clocked out started clocking out. Romans testified that when Erney asked what was the trouble, the employees "all complained about being sick. ... Some . . . had headaches and backaches and first one thing and then another." DeHosse testified that when Romans said he was going home, he, DeHosse, told him he wasn't released, and DeHosse told the others the same thing. Romans admitted at the trial that he had lied when he said he was sick before he clocked out. Neither he nor Hamilton could recall DeHosse telling them they were not released, but from all the circumstances, including their demeanor while testifying, I credit DeHosse. It is far more likely for him, as management, in trying to hold these employees to their earlier acceptance of working 2 more hours, to tell them they were not released. He knew the trouble began over the employees' desire to have 20 minutes for a break rather than 10 minutes, and suddenly they were checking out "sick," an obvious pretext. Fifteen employees walked out. Several remained at work. The parties stipulated that the walkout was unauthorized by the Local and International. None of the other night- shift or day-shift employees of Respondent participated in the strike. The following afternoon, all 15 strikers, including Romans and Hamilton, were suspended pending an investigation. The strike was confined to the second- shift overtime, February 10, 1970, and ended when the 15 strikers were notified of their suspension. The suspension was lifted 2 days later on all the employees except Hamilton and Romans. History of the 10-minute break As for the controversy over whether those scheduled for overtime following the second shift should have a 10- or 20-minute break before starting the overtime, the clear evidence in the case is that only 10 minutes was permitted. Romans admitted that as of February 9, 1970, it had been a 10-minute break for at least 6 months. There was evidence that it was longer than 6 months, but it is unnecessary to resolve this. Some 4 to 6 weeks before February 9, 1970, Respondent and the Union had a "discussion" about their break period, culminating in agreement that there would be a 10-minute break at midnight and a 20-minute break at 2 a.m. if they were to work longer. DeHosse credibly testified that the only employees who ever questioned him on this rest period were Romans and Hamilton, and he had had "trouble" and discussions with both men about this subject on three or four occasions within 5 months before February 9, 1970, repeatedly telling them the break period was only 10 minutes. The last time was only about a week before February 9. He told them that if there was disagreement as to this, there was a procedure to follow. Stephen Ritter, assistant warehouse and transportation superintendent, credibly testified that he also had several conversations with Hamilton and Romans about this break, the most recent being a week or so before the walkout. The two wanted a 20-minute break, and he explained they were only going to get a 10-minute break. Neither Romans nor Hamilton disputed the agreement between the Union and Respondent that the break at the end of the second shift was for 10 minutes. I find that on February 9, 1970, the break period between the end of the second shift and the beginning of overtime was 10 minutes and that the employees engaged in an unauthorized walkout in protest thereof. Responsibility of Hamilton and Romans for the walkout The Respondent investigated the work stoppage. De- Hosse had told Griner on the morning of February 10, 1970, what had happened the night before and that he felt that Hamilton and Romans were the instigators. According 3 Hamilton acknowledged he was the first up the stairs and that the rest of the employees followed him 4 According to Erney, Hamilton told him "he was going home" after Erney had told the group that they were not released. Erney did not agree or consent to Hamilton's statement 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to Griner, Erney told Griner substantially the same thing. Also employee Garrison told Griner that Hamilton and Romans "were the instigators," and finally, employees James Mullins and Harry Mullins told Griner, at the time they were reinstated on February 12, 1970 , that they would never follow Hamilton and Romans again. According to Gnner's credited and uncontradicted testimony, he met with Umon Stewards Cowls, Miller, and Harl and Union Representative Spurgeon on February 10, 1970, about 10 a.m. and told them the strikers would be suspended until further notice and that he believed Hamilton and Romans had been the instigators but he would further investigate the case. The Union's position was that the employees other than Hamilton and Romans had been led astray and were not at fault . Afterwards, Griner again talked with DeHosse (who maintained his original position) and talked to all the supervisors who had anything to do with the matter . All views were the same. After his investigation , Griner decided to discharge Hamilton and Romans. He did this on February 13, 1970, by identical letter to each as follows: On February 10, 1970, after accepting overtime work, you left the warehouse before starting such overtime work, despite specific and repeated instructions by supervision to remain at work and complete your assignment. Moreover, you actively and expressly persuaded fellow employees to follow your example in leaving the premises without authorization and contrary to the specific and repeated instructions of supervision. In view of your complete disregard of the established uniform rules and regulations for personal conduct and your active leadership in encouraging other employees to be similarly insubordinate, you are herewith advised of your dismissal from Standard Grocery. The grievance Hamilton and Romans each filed a grievance on February 16, 1970, which was processed in accordance with the grievance procedure set out in the collective- bargaining agreement . Beginning with Step Two, the grievants were represented by Spurgeon, business agent of the Union . When the grievances were not satisfactorily adjusted at Step Two they were referred to the Joint National Committee in accordance with Step Three. Spurgeon telephoned Riordan, Respondent's director of labor relations, that his position before the Joint National Committee was that Respondent's actions were contrary to article VII of their agreement . The second paragraph of article VII-Unauthorized Activity, is all that is involved, and it is as follows: It is further agreed that in all cases of an unauthorized strike, slow-down, walkout, or any unauthorized cessation of work in violation of this Agreement, the Union shall not be liable for damages resulting from such unauthorized acts of its members. While the Union shall undertake every reasonable means to induce such employees to return to their jobs during any such period of unauthorized stoppage of work mentioned above , it is specifically understood and agreed that the Employer during the first twenty-four (24) hour period of such unauthorized work stoppage shall have the sole and complete right of reasonable discipline short of discharge, and such employee shall not be entitled to or have any recourse to any other provisions of this Agreement . After the first twenty- four (24) hour period of such stoppage, and if such stoppage continues , however, the Employer shall have the sole and complete right to immediately discharge any employee participating in any unauthorized strike, slow-down, walkout, or any other cessation of work, and such employees shall not be entitled to or have any recourse to any other provisions of this Agreement. The Union's position, in effect, was that Respondent was precluded from discharging any employee engaging in an unauthorized strike that lasted less than 24 hours , like the one in issue. The Respondent, on the other hand, took the position that the contract did not preclude such a discharge, but only that such a discharge was subject to the grievance procedure, whereas a discharge for engaging in an unauthorized strike longer than 24 hours was not even subject to a grievance. The Joint National Committee held a hearing on the grievances in New Orleans in March 1970 . Present were Committee Chairman Charles D . Winters and Riordan. Winters also was the Teamsters Joint National Committee representative and the president of Teamsters Local 270 in whose offices the meeting was held . While normally individual grievants do not appear before the Joint National Committee (having their grievances presented instead by the local union representative ), Hamilton and Romans appeared in person and were represented by Spurgeon . Daniel Costello, who works in Riordan's department, also attended . While the Agreement calls for a Joint National Committee of four members , the Commit- tee "routinely" convenes with less than four and there was no objection to the two-member panel. Spurgeon presented the case for Hamilton and Romans. He made the first statement on the case . He told them he had lost the affidavits which he had supporting his case and apologized for the inconvenience. He believed they were lost on the airplane and when found would be submitted to the arbiters. They subsequently were found and submitted. He asked to proceed with the hearing without the affidavits, and, without objection, he did so. On behalf of the grievants , he argued his theory, as noted before, that Respondent violated article VII of the Agreement by discharging Romans and Hamilton since the lockout lasted less than 24 hours. Both Hamilton and Romans made statements on their own behalf supporting their grievances; Costello, Respon- dent's representative, made his statement which was that these two men had left work "without authorization" and "encouraged other people to do likewise." He told of what the supervisors had said of the incident. Riordan testified that in the past the Joint National Committee has "on both sides" reached decisions without testimony from individu- als from the location, but it is "generally not the case" for grievants to appear and testify. Riordan credibly testified that Costello related that these two employees "had been instructed by supervision to return to work and complete the overtime assignment, NATIONAL TEA COMPANY 619 which they refused to do. That they punched out and left the premises contrary to the instructions of supervision." At the conclusion of the hearing, Winters asked "all participants if they (had) anything to add." Nothing was added. After a review of the testimony and the supporting documents, Winters sent a telegram to Spurgeon and to Riordan on April 20, 1970, as follows: Be advised that after hearing a review of the union's presentation of the testimony and affidavits presented, the discharge of Rex Hamilton and Lemon Romans is upheld. Riordan and Winters were familiar with article VII of the Agreement as they had participated in its negotiation in the 1964-67 Agreement. It was renewed in 1967 without further negotiation or change. Case 25-CB-1020 Hamilton charged the Union, on August 7, 1970, with failure to adequately represent him and Romans "in the handling and processing of their grievances" in Case 25-CB-1020. The Regional Director for Region 25 notified Hamilton, by letter dated October 26, 1970, that he was refusing to issue a complaint on the ground of insufficient evidence of a violation of the Act. Independent allegations of 8(a)(1) There is no allegation of an independent violation of Section 8(a)(1) of the Act in the complaint, nor any evidence of one. B. Discussion and Conclusions The General Counsel agrees , in his brief, that "Essential- ly, there is no factual dispute in this case ." He then summarizes the facts set forth above and concludes "There is no question that Hamilton and Romans were discharged because of Respondent's belief that they struck and instigated and encouraged other employees to engage in the strike." The Charging Party substantially agrees with this position in his brief. Inasmuch as neither the General Counsel nor the Charging Party admits that Hamilton and Romans in fact were the instigators in the unauthorized strike, and the Respondent was satisfied that they were the instigators and fired them because of their actions, I believe it to be important to resolve this fact . From the credible evidence as set forth above, I find that Hamilton and Romans instigated the unauthorized strike which took place in the morning of February 10, 1970. I also find that each was fired, for the reasons set forth in the letter of February 13, 1970, above: In view of your complete disregard of the established uniform rules and regulations of personal conduct and your active leadership in encouraging other employees to be similarly insubordinate ... . Any unauthorized strike action by employees contrary to the contract does not fall within the protection of Section 7 of the Act because of the operation of Section 9(a). (See N.L.R.B. v. Draper Corporation, 145 F.2d 199 (C.A. 4); Harnischfeger Corporation v. N.L.R. B., 207 F.2d 575 (C.A. 7); Plasti-Line, Inc., v . N.L.R.B., 278 F.2d 482 (C.A. 6); N.L.R.B. v. Tanner Motor Livery Lid, 419 F.2d 216 (C.A. 9); and N.L.R.B. v. Shop Rite Foods, Inc., 430 F.2d 786 (C.A. 5).) Under the teaching of the above cases , the instigation of the unauthorized strike by Hamilton and Romans was unprotected activity , and they could be discharged therefor without incurring a violation of the Act. The right to discharge an employee who engages in an unauthorized strike is well-settled law as indeed it must be, since the whole intent and purpose of the Act is to foster collective bargaining . Once there is established an exclu- sive collective-bargaining agent, the forces of the law are committed to surround him and protect his exclusivity by denying protection of the Act to employees who engage in minority actions inimical to the rights of the exclusive bargaining agent. Since it will be necessary to refer to section VII and section VIII of the collective-bargaining contract from time to time in this section of this decision , they are reproduced in full as a footnote.5 C. Respondent's Position Respondent argues in its brief that under the contract it could discharge an employee for engaging in an unauthor- ized strike regardless of the length of time of the strike. All that the length of time of the strike relates to in the contract is to whether the discharge could be grieved through the grievance procedure; and this being possible only for strikes of less than 24 hours. According to his theory under section I of article VIII of the agreement, supra, the exclusive bargaining agent of the strikes explicitly contracted "that there shall be no strikes . . . by the Union during the term of this Agreement." Article VII confirms that any "unauthorized strike" is a "violation of this Agreement." Notwithstanding expressly forbidden unauthorized strikes, the General Counsel argues that a discharge for such activity converts the activity from unprotected status to protected status. Respondent main- tains that this no-strike clause waives the employee right to strike under Section 7 of the Act, and that the question of whether activities are protected is quite different from the question of whether the penalty given for engaging in them exceeds that agreed upon by the parties. A penalty exceeding a privately proscribed one cannot amend the absolute no-strike agreement, and unprotected activity cannot be converted to protected activity. As to the language of article VII of the contract, it does not prohibit discharge for participating in a strike of less than 24 hours when all the words are read in context. Rather, the import of the Article is that although an Employer may discipline or discharge such strikers, a discharge can be challenged through the grievance proce- dure whereas any discipline short of discharge is unchal- lengable. This finds support in the phrase that even a discharge of a striker of more than 24 hours cannot be challenged in a grievance. In other words, the only discharge of a striker that is grievable is the discharge of 5 See appendix 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one who had not struck for more than 24 hours. The obvious reference to "recourse to any other provision of this Agreement" relates to the "sole and complete right to reasonable discipline short of discharge," and Respondent is not prohibited from making the discharge. The limita- tion expressed in the phrase is not that the Respondent cannot discharge, but that his right to do so is not "sole and complete," i.e., not his alone without review. General Counsel would impute to article VII the intent that the parties said, "The Respondent shall not discharge an employee who participates for less than 24 hours in a prohibited work stoppage." Had the parties intended that result they could have expressly so provided. They knew how to exclude certain acts from being good cause for discharge because they did this in article VIII, sections 2 and 3. The interpretation of the General Counsel amounts to a substantial curtailment or a partial revocation of Respondent's otherwise unqualified, uncontradicted, ex- press right to discharge under article X1116 and the doctrine of Mastro Plastics Corporation v. N.L.R.B., 350 U.S. 270, 280. Another consideration makes it entirely clear that the General Counsel's "intent" of the parties cannot be imputed to article VII. The provisions of the Grievance Procedure, article V, section 1, step 4, make it clear that article VII does not create a limitation on the Employer's otherwise unqualified, unconditioned right to discharge for participation in a strike of less than 24 hours in violation of the no-strike commitment. Article V, section 1, step 4 provides in relevant part: If the Joint National Committee decides the griev- ance referred to it by a majority agreement of the Committee, the decision shall be final and binding on all parties. In the event the Joint National Committee cannot reach a majority agreement, the dispute shall be submitted to arbitration, subject, however, to. the following: Disputes concerning . . . discharge, except discharge . . . under the terms of Article VII, shall be submitted to arbitration by a majority agreement of the . . . Committee. In the event the . . . Committee cannot reach a majority agreement on disputes involving . . . discharge, except discharge . . . under . . . Article VII, then either party shall be permitted all legal or lawful economic recourse ... . Article VII indisputably bars recourse to the grievance procedure by an employee discharged for participation in a strike of more than 24 hours: "[I ]f such stoppage continues (beyond 24 hours) . . . , the Employer shall have the sole and complete right to discharge any employee participating ... and such employee shall not be entitled to or have any recourse to any other provisions of this Agreement. Yet 6 Article XIII-Management Rights The management of the business and the direction of the working forces, including the right to plan, direct and control operations, hire, suspend or discharge for proper cause, transfer or relieve employees from duty because of lack of work or for other legitimate reasons, the right to study or introduce new or improved production methods or facilities, are vested in the Employer provided , however, that this right shall be exercised with due regard for the rights of the employees and provided further, that it will not be used for the purpose of Article V, Section 1, Step 4 provides that "[d]isputes concerning . . . discharge, except discharge . . . under the terms of Article VII, shall be submitted to arbitration by a majority agreement of the Joint National Committee." This is an unmistakable recognition that grievances respecting discharge under article VII may be processed through the grievance procedure to the Committee, although not beyond. Since article VII clearly and unequivocally bars grievance procedure review of dis- charge for strike participation exceeding 24 hours, the language of step 4 perforce refers to discharge for strike participation of less than 24 hours. And, it is an express acknowledgment that Respondent may discharge for strikes of such duration "under the terms of Article VII." This provision cannot merely be a restatement of the article VII ban on grievance procedure review of discharge for strike participation exceeding 24 hours. For article VII bars "recourse to any other provisions of this Agreem- ent"-the entire Grievance Procedure, not merely arbitra- tion, as the step 4 language provides. The clear meaning of these article V provisions cannot be squared with the General Counsel's interpretation of article VII. In contrast, the article V provisions harmonize with the interpretation of article VII suggested by Respondent. Like article VII, they contemplate that Respondent may discharge for the offense, subject to grievance procedure review. Finally, this intent to permit discharges of strikers of less than 24 hours subject to grievance procedures is evidenced by the decision of the negotiators of the clause denying the Hamilton and Romans grievances and rejecting the contention advanced by the General Counsel. The protected status of the strike under the Agreement turns upon the meaning of article VII, that is, whether Respondent and the Union contracted that strikers should be immune from discharge for a no-strike engagement violation of less than 24 hours. This, like all matters of contract interpretation, is a question of the intent of the parties to the Agreement. On this, there can be no surer guide than expressions of intent by the negotiators themselves during their negotiations of the Agreement or in their subsequent interpretation of it. The intent of the negotiators in their subsequent interpretation of the contract is evidenced in the decision of two of them denying the Romans and Hamilton grievances and rejecting the contention upon which they turned, here urged by the General Counsel. The Joint National Comnuttee panel which heard and decided Romans' and Hamilton's grievances was composed of Riordan and Winters who had represented Respondent and the Union, respectively, in the negotiations of article VII in 1964.7 The Union's position at the local level through the Joint National Committee hearing was that the discrimination against any employee, or for the purpose of invalidating any contract provisions. r The General Counsel contended that the Joint National Committee's decision is not entitled to recognition, presumably for any purpose, since the panel which decided the grievances was composed of only two members and thus allegedly improperly constituted. Article III, section I of the Agreement provides that the Joint National Committee shall consist of "not less than two" representatives from each the Employer and the Union, but the Agreement does not require that all committee members sit on or hear (Continued) NATIONAL TEA COMPANY 621 discharges violated article VII since the strike lasted less than 24 hours. The case was argued by the Union's business agent to the Committee on this theory. Riordan and Winters were both aware that this issue was before them for decision. They had peculiar and unquestionable knowledge of the intent of Respondent and the Union during their negotiation of the clause, for they had negotiated it. And they denied the grievances. In doing so, they necessarily decided that Respondent had not violated article VII. Their decision comported with the apparent intent of the language itself, supported by the evident meaning of the provisions of article V. It cannot be questioned or disputed that the Committee members were the primary and best source of peculiar knowledge of the intent of the very clause they negotiated and that they rejected the express contention that the discharges violated article VII. The intent of article VII manifested in their decision cements the conclusion, based upon the terms of article VII and buttressed by the clear meaning of article V, that article VII did not prohibit the discharge of Romans and Hamilton for their activities. It startles the conscience to say that a clause relating to the filing of grievances in a collective-bargaining agree- ment, in and of itself, is of such importance in the contract that it reinstates the protection of the Act to employees who are outlaws tearing at the fabric of the Act itself. I conclude and find that the argument of Respondent has merit and that article VII of the agreement permitted discharges of strikers of less than 24 hours' duration subject only to grievance procedures. Therefore I conclude that the discharges of Hamilton and Romans were for cause, and no violation of Section 8(a)(3) of the Act has been established by the General Counsel. Accordingly, I will recommend the complaint be dismissed in its entirety.8 D. The Arbitration Although it is unnecessary to reach this point in view of the above decision that a violation of the Act was not established by a preponderance of the evidence, it does seem that the case can be dismissed also because the parties had voluntarily submitted the problem to a neutral tribunal where it was fully litigated, the proceedings were fair and regular, and the decision was not repugnant to the purposes and policies of the Act. Spielberg Manufacturing Company, 112 NLRB 1083. The parties to collective- bargaining agreements must be charged with responsibility, and the Board need not reconsider cases merely because one of the parties does not like the decision of the arbitrators .9 IV. THE REMEDY Having found that the General Counsel has not sustained the burden of proof that Hamilton and Romans were discharged in order to discourage union activity but rather that they were discharged for cause, I shall recommend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The General Counsel has not established by a preponderance of the evidence that Respondent has violated the Act as set out in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER The complaint is dismissed in its entirety. all grievances referred to it under article V, section I, step 4 Accordingly, the General Counsel's contention is without merit 8 General Counsel relies on Wagoner Transportation Co., 177 NLRB No 22, enfd 424 F 2d 628 (C.A. 6, 1970), but this case is distinguishable. The Wagoner bargaining agreement counterpart to article VII was substantively the same. However , Wagoner discharged the two discnmina- tees, to the extent relevant here, for participation in work stoppage allegedly exceeding 24 hours, and accordingly did not assert or argue its right to discharge for strike participation of less than 24 hours Judge Bush found that the strike did not last 24 hours and, lacking the benefit of adversary argument and without analysis or discussion, concluded "that the parties agreed that the extreme penalty of discharge would not be applicable to employees who participate in unauthorized stokes of less than 24 hours No basis for this "agreed" upon conclusion appears in the decision. The qualifying language was not set out in his decision nor was there an analysis made of the language "without recourse etc " discussed above Also two critical elements in the instant case are not found in Wagoner Bush's decision makes no reference to language like article V's recognition that Respondent may discharge for strikes of less than 24 hours' duration "under the terms of Article VII" or to any evidence, like that here, of the unmistakable intent of the negotiators of the clause that it did not prohibit discharge for such unprotected activity 9 At the trial, the General Counsel attempted to establish that Hamilton and Romans did not receive what he considered to be a fair trial before the Joint National Committee in that, e.g, no opportunity was afforded them to confront and cross-examine witnesses against them . However, even assuming this to be true, there is no prejudice shown Hamilton and Romans as the General Counsel and Charging Party both admit the facts and hence cross-examination would be unnecessary. The evidence concerning the case before the Joint National Committee is that all parties were given full opportunity to present their case Evidence as to the intent of the parties to the interpretation of section VII of the contract was unnecessary as the members had knowledge of this already APPENDIX Article VII-Unauthorized Activity It is further mutually agreed that the Local Union will, within two (2) weeks of the date of the signing of this Agreement serve upon the Employer a written notice, which notice will list the Union's authorized representa- tives who will deal with the Employer, make commitments for the Union generally, and in particular have the sole authority to act for the Union and the Union shall not be liable for any activities unless so authorized. It is further agreed that in all cases an unauthorized strike, slowdown, walkout, or any unauthorized cessation of work in violation of this Agreement, the Union shall not be liable for damages resulting from such unauthorized acts of its members. While the Union shall undertake every reasonable means to induce such employees to return to their jobs during any such period of unauthorized stoppage of work mentioned above, it is specifically understood and agreed that the Employer during the first twenty-four (24) hour period of such unauthorized work stoppage shall have 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the sole and complete right of reasonable discipline short of discharge, and such employee shall not be entitled to or have any recourse to any other provisions of this Agreement. After the first twenty-four (24) hour period of such stoppage, and if such stoppage continues, however, the Employer shall have the sole and complete right to immediately discharge any employee participating in any unauthorized strike, slowdown, walkout, or any other cessation of work, and such employees shall not be entitled to or have any recourse to any other provisions of this Agreement. It is further agreed and understood that the National Warehouse Division of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, shall not be liable for any strike, breach or default in violation of this Agreement unless the Act is expressly authorized by its Executive Board. The Executive Board shall notify the Company in writing of any such action they have authorized. Article VIII-Protection of Rights 30 Section 1: No Strike, No Lockout To the extent that the Union is not otherwise entitled to exercise its right to strike under the provisions of this Contract, the Union agrees that there shall be no strikes or other interferences with or interruption of the normal operation of the Company's business by the Union during the term of this Agreement. The Company agrees that there shall be no lockout. Section 2: Picket Line It shall not be a violation of this Agreement, and shall not be cause for discharge or disciplinary action, in the event an employee (a) refuses to enter upon any property of his Employer involved in a lawful primary labor dispute or refuses to go through or work behind any lawful primary picket lines at his Employer's places of business; including picket lines of unions parties to this Agreement; or (b) refuses to go through or work behind any picket line, including picket lines of Unions parties to this Agreement, at the places of business of any other Employer where the employees of such Employer are engaged in a strike ratified or approved by the Union of such employees whom such Employer is legally required to recognize. Section 3: Struck Goods It shall not be a violation of this Agreement and it shall not be cause for discharge or disciplinary action if any employee refuses to perform any service which his Employer performs by arrangement with an Employer or person whose employees are on strike, and which service, but for such strike, would be performed by the employees of the Employer or persons on strike. Section 4: Grievances Within five (5) working days of filing of grievance claiming violation of this Article, the parties to this Agreement shall proceed to the final step (Article V, Step 4 of Section 1) of the grievance procedure, without taking any intermediate steps, any other provisions of this Agreement to the contrary notwithstanding.