Gary-Hobart Water Corp.

GARY-HOBART WATER CORP 647 Gary-Hobart Water Corporation and International Union of District 50, Allied and Technical Workers of the United States and Canada Cases 13-CA-10699 and 13-CA-11017 November 30, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On June 16, 1972, Administrative Law Judge' Lloyd Buchanan issued the attached Decision in this proceeding Thereafter, the General Counsel and the Charging Party filed exceptions and supporting briefs and the Respondent filed an answering brief 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order only to the extent consistent herewith The complaint alleges and the General Counsel contends that Respondent violated Section 8(a)(3) of the Act by discharging 34 employees on June 17, 1971,2 because they engaged in a protected sympathy strike, and by refusing to reinstate them when openings have occurred after they made an uncondi- tional offer to return to work on August 18, and that Respondent violated Section 8(a)(5) by terminating its collective-bargaining agreement with the Union on October 27 and refusing thereafter to bargain with the Union Respondent's employees are represented in two units by locals of the Charging Union Production and maintenance employees (sometimes referred to as the men's unit) are represented by Local 13584 Office or clerical employees (the so-called women's unit), with whom we are concerned herein, are represented by Local 14321 The clerical local was certified on September 5, 1968 During the period in question the clerical unit was covered by a collective- bargaining agreement effective from April 1, 1969, through December 31, 1971 The contract of the men's unit expired May 31, 1971, and that unit struck on June 1, 1971 On that date, the clerical unit began a sympathy strike by refusing to cross the men's picket line On June 17, each of the striking clericals was informed by letter that her employment had been terminated for breach of the no-strike provision of the clerical unit's contract On August 18, the clerical local, by telegram, offered to return to work immediately On August 19, the Respondent replied that the clericals had engaged in unprotected activity and were not entitled to return to work On August 30, the men's unit returned to work Grievances were filed by the terminated striking clericals on Septem- ber 14, citing the unjust discharge and requesting reinstatement, no further action was taken with respect to the grievances On October 27, the Respondent notified the clerical local that although it believed the local's contract with Respondent had been terminated by operation of law in view of the local's massive breach of the no-strike clause, it was terminating the contract as of December 31, 1971, the contract's termination date The Respondent noted further that the Union no longer represented a majority in the clerical unit Thereafter, Respondent refused to meet to negotiate modifications of the contract The Administrative Law Judge found that whether the clerical unit's sympathy strike was protected or unprotected depends on how the no-strike provision of the contract is to be construed Under his interpretation of the contract, he found that the sympathy strike was unprotected, that the discharges on June 17 were therefore lawful, and that thereafter the sympathy strikers were no longer employees He found that the refusal-to-bargain aspect of the case depended on the validity of the discharges,3 or that the alleged 8(a)(5) violation was derivative of the 8(a)(3) Having dismissed the 8(a)(3) allegations, he dismissed the 8(a)(5) allegation In its answer to the complaint, at the hearing and in its brief to the Administrative Law Judge, the Respondent contended that the alleged violations involve a dispute (the scope of the no-strike provi- sion) arising under the collective-bargaining contract between the parties and that such a dispute is subject to the grievance and arbitration provision of the contract On the other hand, the General Counsel and Charging Party, while contending that the Administrative Law Judge's interpretation of the no- strike provision is erroneous, further contend that the Board should construe it and not defer to arbitration In his Decision the Administrative Law Judge discussed the deferral issue raised by the Respon- dent, while his reasons against deferral to arbitration are ambiguous, as we read his comments it appears i The title of Trial Examiner was changed to Administrative Law 3 The Union did not claim that it represented the terminated clericals Judge effective August 19 1972 replacements In fact it was stipulated that since August 15 very few of the 2 Unless otherwise indicated all dates are 1971 clericals employed by the Respondent have been members of the Union 200 NLRB No 98 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he, in effect, decided to defer on the issue of whether the Board should defer to arbitration 4 The Administrative Law Judge found, and we agree, that the threshold issue here is whether the clerical unit's sympathy strike was protected activity in light of the no-strike clause included in the collective-bargaining agreement between the parties The resolution of that issue (whether the no-strike clause prohibited the sympathy strike) turns on the meaning and application of the no-strike clause It is our judgment that when, as here, the alleged unfair labor practices are so intimately intertwined with the interpretation of the parties' contract, it would best effectuate the policies of the Act to remit the parties to the procedures they have devised for determining the meaning of their agreement Under all of the circumstances, we therefore conclude that this is an appropriate case for deferral to the machinery agreed upon by the parties for resolution of disputes arising under their contract 5 If those procedures fail to resolve the issue, our Order permits any party to move for further consideration Accordingly we shall dismiss the complaint but retain jurisdiction of this proceeding for purposes of entertaining an appropriate postdecree motion REMEDY Company, Inc, 198 NLRB No 1, and Appalachian Power Company, 198 NLRB No 7, where the Board majority extended its Collyer doctrine to encompass alleged violations of Section 8(a)(3), the Board should not abdicate its authority to an arbitrator Therefore, I would proceed to the merits of the case As a secondary consideration I see something incongruous in a situation where the Respondent, in effect, repudiates its agreement with the Union because of the Union's alleged breach of the agreement and then invokes the grievance-arbitra- tion procedures of that agreement in urging that the Board defer its jurisdiction 4 The Administrative Law Judge at least implies this case may not be an appropriate one for arbitration because under the contract the parties must consent to arbitration The record does not support that implication The contract is quite clear in this regard It states in part If the adjustment of the grievance cannot be had the specific grievance shall be submitted to arbitration (3) ARBITRATION The Union and the Company, each on its own behalf shall appoint an arbitrator and such two arbitrators shall appoint a third arbitrator Specific provision is then made for the appointment of a third arbitrator by the Federal Mediation and Concilia tion Service in the event that the Union and Company arbitrators cannot agree on a third arbitrator (cf Tulsa Whisenhunt Funeral Homes Inc 195 NLRB No 20 where the arbitration provision could be invoked only by agreement of the parties) 5 See Collyer Insulated Wire 192 NLRB No 150 See also National Radio Company Inc 198 NLRB No I and Appalachian Power Company 198 NLRB No 7 where the Board (Members Fanning and Jenkins dissenting) held the Collyer deferral rationale applicable to alleged 8 (a)(3) discharges which essentially involved disputes concerning the meaning of relevant collective bargaining agreement provisions Without prejudice to any party and without deciding the merits of the controversy, we shall order that the complaint herein be dismissed, but we shall retain jurisdiction for the following limited purpose to eliminate the risk of prejudice to any party Specifically, jurisdiction of this proceeding will be retained for entertaining an appropriate and timely motion for further consideration upon a proper showing that (a) the dispute has not, with reasonable promptness after the issuance of this decision, either been resolved by amicable settlement in the griev- ance procedure or submitted to arbitration, or (b) the grievance or arbitration procedures have reached a result which is repugnant to the Act 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 provided, however, that Jurisdiction of this proceeding is retained for the limited purposes indicated in that portion of our Decision and Order herein entitled "Remedy " MEMBER FANNING, dissenting For reasons set forth by Member Jenkins and me in our dissents in Collyer Insulated Wire, 192 NLRB TRIAL EXAMINER'S DECISION LLOYD BUCHANAN, Trial Examiner Unlike a recent case i in which I excluded proffered testimony because the proffer showed that it was irrelevant and could not affect the issues although the Board, describing the rejected testimony as "insufficient to establish the inappropriate- ness of [its own newly] certified unit" (this, of course, being the reason for the exclusion at the trial after counsel had explained the reason for the proffer), nevertheless declared that it should have been received and that the exclusion was erroneous but somehow nonprejudical, various allega- tions and defenses and the evidence pro and con with respect to them are here relevant, and dependent on the validity of the primary defense That evidence has been received With disposition of the case on the primary issue, there is no need in this Decision to swell the time spent at the trial by further consideration and detailed recital of the evidence on those other issues which need not now be reached and which the Board may "not reach or pass upon " But habit and my interest in the proceeding as it developed, impelled me to evaluate the evidence as it was received and thereafter, and to make tentative findings pending the conclusion of the trial Should reviewing authority desire additional reference to various points raised, further hearing will be unnecessary, on remand I shall be quite prepared to submit analysis, which I now No 150, and more recently in National Radio 1 Penn Building Maintenance Corp 195 NLRB No 29 GARY-HOBART WATER CORP 649 deem (and the Board may agree) unnecessary beyond that offered below Pace the Board, "It is not meet that every nice offense should bear his comment " The complaint herein (issued January 4, 1972, charges filed June 21 and November 12, 1971), as amended, alleges that the Company has violated Section 8(a)(3) of the National Labor Relations Act, as amended, 73 Stat 519, by discharging 34 employees on June 17, 1971, because they engaged in a protected sympathy strike, and by refusing to reinstate them when openings have occurred although they made an unconditional offer to return to work on August 18, 1971, Section 8(a)(5) of the Act by terminating its collective-bargaining agreement with the Union on October 27, 1971, and bargain with the Union, and Section 8(a)(1) of the Act by each of the above acts The answer, as amended, denies the allegations of violation and further alleges that the strikers violated a no- strike clause in the collective-bargaining agreement, that the strikers participated in mass and violent picketing, that the Union rejected the Company's offer to arbitrate under the contract, that no unconditional offer was made to return to work, and that the strikers have been replaced or their jobs eliminated, further that the Union would be involved in a disqualifying conflict of interest if it sought to represent the strikers' replacements, that the Company on October 27 gave notice of termination of the contract as of December 31, 1971, and that the breach of the no-strike provision terminated the contract before October 27 The case was tried before me at Gary, Indiana, on February 15 through 17, 1971, inclusive Counsel were heard in oral argument and briefs, excellent within the limitations of the respective positions, have been filed by the General Counsel, the Company, and the Union, the time to do so having been extended Upon the entire record in the case and from my observation of the witnesses, I make the following FINDINGS OF FACT (WITH REASONS THEREFOR) AND CONCLUSIONS OF LAW I THE COMPANY'S BUSINESS AND LABOR ORGANIZATION INVOLVED The facts concerning the Company's status as an Indiana corporation, the nature and extent of its business as a public utility under permit from the Public Service Commission of the State of Indiana, and its engagement in commerce within the meaning of the Act are admitted, I find and conclude accordingly I also find and conclude that, as admitted, the Union is a labor organization within the meaning of the Act II THE UNFAIR LABOR PRACTICES A Outline of Events The Company's employees are represented in two units by respective locals affiliated with the Charging Union Production and maintenance employees, in what is sometimes referred to as the men's unit, are represented by Local 13584 Our direct concern is with the office and clerical employees or so-called women's unit (although it includes four male clericals), which has been represented by Local 14321 On September 5, 1968, the Charging Union was certified by the Board as the exclusive collective-bargaining representative for the clericals in a unit described as follows All office and clerical employees, including record clerks and engineering clerks, engineering estimators, and draftsmen employed by the employer at its Gary, Portage and Hobart, Indiana locations, but excluding all production and maintenance employees, office janitress, confidential employees, temporary employ- ees, professional employees, guards and supervisors as defined in the Act Effective April 1 (January 1 is elsewhere declared to be the effective date) a collective-bargaining agreement covering the clericals through December 31, 1971, was entered into between the Company and the Charging Union on behalf of 14321 The women had been on strike between March 20 and April 1, 1969, and approximately 70 of some 97 men in the production unit had honored their picket line (We were also told that 43 remained on the job) It is noted that on March 21, 1969, the Company in a letter to the president of the men's local cited the no- strike provision in their contract and warned of possible action against the locals and the employees for violation of the agreement by the refusal to cross the picket line, 5 days later the Company sent a letter, similar to the extent pertinent, to members of 13584 The contract with 13584 having expired on May 31, 1971, the operating employees began an economic strike on June 1 and remained out until August 30 On June 1 the clericals began a sympathy strike,2 refusing to cross the men's picket line It is claimed that the clericals' became an unfair labor practice strike with their discharge on June 17 On June 3 the Company sent to Mandich a letter similar to that of 2 years before addressed to Local 13584, and on the same day a letter to each clerical, citing a breach of the no-strike clause, directing that they report for work on June 7 and, quoting from the contract that their services "are essential to the operation of a public utility and to the welfare of the public," warning of termination and possible damage action On June 9, during negotiations with the men's local only, the Company submitted for proposed signature by the Charging Union and both locals a memorandum of agreement which provided, inter alia, that the Union and the locals would not take action against any member who crossed a picket line set up by a unit other than that to which the employee belonged The Charging Union and the locals refused to sign It was later brought out that the Union had asked the Company to draft a document covering the Company's position on the items mentioned in the proffered memorandum of agreement On June 17 the Company notified each of the clericals 2 In the face of the early admission that this was a sympathy strike and became one with receipt of discharge letters which the Company sent on the facts which regardless of the label attached so indicate Mandich chief June 17 She pointed out that the clericals carved no picket signs before steward for Local 14321 disingenuously maintained that this was not a June 18 strike when clericals refused to go to work on June 1 and thereafter but 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that her employment had been terminated for breach of the no-strike clause of the contract Under article V, Grievances, the contract provides as follows It is expressly understood and agreed that the services to be and being performed by the employees covered by this agreement pertain to and are essential to the operation of a public utility and to the welfare of the public dependent thereon, and in consideration thereof, and of the agreement and conditions herein by and between the Company and the Union be kept and performed, the Company and the Union mutually agree that during the term of this agreement there shall be no lockouts by the Company and there shall be no strike, stoppages of work or any other form of interference with any of the production or other operations of the Company by the Union or its members, and any and all disputes and controversies arising under or in connection with the terms of provisions hereof shall be subject to the grievance procedure hereinafter set forth if the grievance is filed within ninety (90) days of the occurrence Article XVIII, Effectiveness, reads as follows (2) The Union agrees that there shall be no strikes, slowdowns or other interruption of work by any of its members during the term of this agreement, and the Company agrees that there shall be no lockout during the term of this agreement, and both parties agree that any disputes or differences shall be taken up under the Grievance and Arbitration procedures of this agree- ment It was stipulated that article V appears in the contract between the Company and the men's unit, effective June 18, 1968, and that, while that no-strike provision is essentially the same as appears in contracts between the Company and the men's unit during the last 20 years, these latter contracts have not included a provision similar to that quoted above from article XVIII Thereafter, the strike and the sympathy strike continu- ing, the Company, at a negotiating session with Local 13584 on July 20, submitted to the Union the following proposal As a part of the settlement of the contract negotiations between the Company and District 50, Allied and Technical Workers, and its members, it is agreed that the wording of Article V of the contract between the parties dated June 18, 1968 (and of the same wording as incorporated in the new contract now being negotiated) prohibits any and all work stoppages, strikes, slowdowns, or observances of picket lines from and after June, 1971 (The parties remain in disagree- ment as to the proper interpretation of that wording prior to that date ) It was testified that counsel for the Company maintained and insisted that this paragraph had to be part of the package submitted to the union membership for approval, and that the union representatives were firmly opposed to it The meeting lasted until about 4 o'clock the next morning, and later that day the Company submitted a five- page memorandum of tentative agreement without men- tion or reference to the suggestion of the day before The testimony that at the conclusion of the meeting early on the morning of March 21 the Company was not insisting on inclusion of the paragraph which it had submitted at that meeting is supported by the fact that the lengthy and detailed proposal now submitted did not include the paragraph offered just a few hours earlier On July 22 in a letter to Moser, president of Local 13584 who was also acting on behalf of Local 14321, the Company invoked arbitration under the grievance proce- dure of the contract with the clericals On August 18 both locals sent the following telegram to the Company IN RESPONSE TO AND IN COMPLIANCE WITH PRESIDENT NIXON'S REQUEST FOR A STOPPAGE TO STRIKES AND LOCKOUTS UNTIL NOV 12, 1971, THE MEMBERS OF LOCAL 13584 AND 14321 OF DISTRICT 50, A T W, IN THIS TIME OF NATIONAL EMERGENCY FEEL IT IS THEIR PATRIOTIC DUTY AND RESPONSIBILITY TO COOPERATE WITH THE PRESIDENT FOR THE WELFARE OF OUR COUNTRY, THEREFORE, WE WILL RETURN TO WORK IMMEDIATELY SUGGEST MEETING AT ONCE TO WORK OUT DETAILS The Company replied as follows by telegram on August 19 MR JOHN MOSER, PRESIDENT LOCAL, 13584, DISTRICT 50 ALLIED & TECHNICAL WORKERS 1122 WEST FIFTH AVENUE GARY, INDIANA 46402 MRS ARLENE MANDICH, CHIEF STEWARD LOCAL 14321, DISTRICT 50 ALLIED & TECHNICAL WORKERS 1122 WEST FIFTH AVENUE GARY, INDIANA 46402 IN YOUR WIRE TO US OF AUGUST 18, YOU STATED THAT YOUR MEMBERS "WILL RETURN TO WORK" AND SUGGESTED AN IMMEDIATE MEETING TO "WORK OUT THE DETAILS " SUBSEQUENT TELEPHONE CONVERSATIONS WITH MR MOSER AND OTHERS HAVE MADE IT CLEAR, AS IS IMPLIED IN YOUR WIRE, THAT YOU ARE DEMANDING A JOINT MEETING OF BOTH LOCALS WITH US CONFIRMING OUR TELEPHONE CONVERSATIONS, WE ARE UNWILLING TO ENGAGE IN ANY SIMULTANEOUS OR JOINT DISCUSSIONS WITH BOTH LOCALS EACH REPRESENTS A WHOLLY SEPARATE AND DISTINCT BARGAINING UNIT, AND THE LOCALS ARE IN TOTALLY DIFFERENT SITUATIONS THE OPERATING LOCAL HAS BEEN ENGAGED IN A LEGAL STRIKE IN A DISPUTE WITH US OVER CONVENTIONAL ITEMS OF COLLECTIVE BARGAINING-SUCH AS WAGES, WORKING CONDITIONS, ETC ON THE OTHER HAND, THE MEMBERS OF THE CLERICAL UNIT HAVE BEEN ENGAGED IN UNPROTECTED AND ILLEGAL ACTIVITIES, HAVE BEEN DISCHARGED, AND ARE NOT ENTITLED TO RETURN TO WORK WE ARE WILLING TO MEET WITH REPRESENTATIVES OF THE OPERATING LOCAL TO DISCUSS THE DETAILS OF A RETURN TO WORK AT YOUR EARLIEST CONVENIENCE WE WILL BE WILLING TO CONSIDER MEETING WITH REPRESENTATIVES OF THE CLERICAL LOCAL IF WE ARE INFORMED WHAT TOPICS ARE TO BE DISCUSSED IN VIEW OF THE INJUNCTION ISSUED BY U S DISTRICT JUDGE BARRINGTON PARKER , WE ARE NOT GARY-HOBART WATER CORP 651 CERTAIN THAT THE PARTICIPATION OF STEEL WORKERS REPRESENTATIVES AT SUCH MEETINGS, RATHER THAN DISTRICT 50 REPRESENTATIVES, WOULD BE APPROPRIATE HOWEVER, WE WILL NOT OBJECT TO SUCH PARTICIPATION AT THIS TIME On September 14 grievances were filed in general terms on behalf of the striking clericals, in which they cited the allegedly unjust discharges on June 17 and requested that they be immediately reinstated No further action was taken with respect to these grievances Declaring its belief that the collective-bargainng agree- ment with the clericals had already been terminated, the Company sent the following letter to the Union on October 27, allegedly to avoid automatic renewal of the contract (and placing the discharges on June 18) International Union of District 50 Allied & Technical Workers of America 11 East Adams Street-Room 902 Chicago, Illinois 60603 Att Mr Joseph Defalco Director-Region 43 Gentlemen This is to inform you that this company terminates its labor agreement with your Union (and with its Local 14321) executed as of April 1, 1969, effective on the date therein provided, December 31, 1971, although we believe that the contract has already been terminated by your organization and members by operation of law As you know, the members of Local 14321 engaged in a massive breach of the no-strike clauses of the contract commencing June 1, and continuing until on or about August 30, 1971 This necessitated the discharge of 33 of them on June 18, 1971, and their ultimate replace- ment by other employees Your organization filed charges with the National Labor Relations Board alleging that the discharge of these employees constituted an unfair labor practice However, as you know, the Regional Director refused to issue a complaint finding "the evidence shows that the employees represented by Local 14321 were engaged in unprotected activities" As matters now stand, the Company has 30 employees in the bargaining unit which Local 14321 formerly represented, of whom only one is as far as we know a member of your organization (We understand that you have a dispute with one other employee as to whether she made a timely resignation from the Union In any event, if she is a member, it is obvious she is an unwilling one) It is readily apparent that you no longer represent a majority of the employees now working in the bargaining unit Under date of October 29, the Union requested that the Company meet with it to negotiate modifications in the clericals' contract By reply on November 11, the Company rejected this request, citing its letter of October 27 The Union had on November 10 acknowledged receipt of the Company's letter of October 27 and had referred to its own letter of October 29 B The Alleged Violation of Section 8(a)(3) Much of the testimony received could be called "contingency testimony" It would require consideration only if other testimony were not determinative Thus, if the defense be sustained that the clericals' strike or refusal to work violated the contract between Local 14321 and the Company, and that they were not protected as either unfair labor practice or economic strikers, it would be unneces- sary to determine whether there were violative discharges before replacements were lured Otherwise we would then detail seriatim whether the strikers unconditionally offered to return to work, whether they were in fact replaced or their jobs abolished before any condition that the prod- uction and maintenance strikers return was met, and whether picket line activity justified refusal or failure to rehire any Somewhere here the so-called Collyer3 defense of deferral to arbitration procedure under the contract might also be weighed The primary defense cites the no-strike provisions of the contract of April 1, 1969 After its warning of June 3, the Company in the discharge letters of June 17 cited article V of the contract The no-strike provisions are here clearly stated This brings us to cases on this point and the arguments made A provision against cessation of work or interfer- ence therewith is lawful and the Act "clearly enables contracting parties to embody in their contract a provision against requiring an employee to cross picket line if they so agree And nothing in the Act prevents their agreeing upon contrary provisions if they consider them appropriate to the particular kind of business involved An employee's breach of such a agreement may be made grounds for his discharge without violating Sec 7 of the Act "4 With the discharge lawful in Rockaway News, cited by both sides, we have an a fortiori situation in the instant case where, unlike Rockaway News, members of the Union are expressly cited If distinction be claimed in the fact that in Rockaway the Union sought a clause permitting it to honor the picket line, but was turned down, it cannot be sensibly found that the employees' rights are greater and the employer's less where the Union did not even seek such permission In Montana-Dakota Utilities,5 cited by the General Counsel, aside from the fact that the action there taken was "not solely for the purpose of preserving the efficient operation of Respondent's business," the employer "made no attempt to replace" them "while the picketing was in progress " The no-strike clause in that case provided that "there shall be no collective cessation of work on account of any controversy respecting the provisions of" the agreement In the instant case, the no-strike bar is not so limited, the reference to the provisions of the agreement being in connection with grievance procedure This is so despite the argument now made of waiver "only to the 3 Collyer Insulated Wire A Gulf and Western Systems Co 192 NLRB No 150 4 N L R B v Rockaway News Supply Company Inc 345 U S 71 5 Montana Dakota Utilities Co 189 NLRB No 111 enforcement denied 455 F 2d 1088 (C A 8 1972) 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD extent of disputes arising under the contract " Unlike Granite City Steel,6 the no-strike clause here was not limited by or made dependent upon the grievance procedure, it was coordinate with and not conditioned upon such procedure Similarly, the decision in Kellogg7 makes it clear that, unlike our case, the contract there barred "only strikes over a grievable dispute" and "arising [t ]hereunder," and in that connection applied "only to the `Union,' " not its members That the decision in Hoffman Beverages is not here applicable is so obvious as to require no comment As much, or little, can be said of other cases cited Different cases, different provisions, different conclusions If, as argued with reference to a Hearst case,9 bargaining history indicated a "failure of the union to obtain the picket line clause it had proposed during negotiations," the absence of a different proposal no more serves to modify what is carefully set forth in the agreement reached, inclusive and from the Company's point of view well drafted True, the rejection of a proposal indicates the parties' intent, so presumably does a provision which on its face is unambi- guous In the instant case, limitation with respect to matters subject to the grievance procedure is placed on the arbitrators only The General Counsel correctly points out that Lincoln Mills 10 recognizes a no-strike provision as a quid pro quo for the grievance procedure But to argue that the clericals could not air their grievances since they were striking because of the men's activities, which were outside the clericals' contract, is akin to the patricide's plea for leniency due an orphan Such an argument would permit a strike despite a comprehensive no-strike provision whenever a dispute can be indicated with reference to any point not covered by the contract We cannot so readily deracinate the product of years of negotiations and agreement and the work of experienced negotiators and draftsmen It is nowhere suggested how a contract could be drawn to cover more clearly all employee concerted activities and to forbid strikes and work stoppages, nor are cases cited with clearer, more comprehensive, and admittedly suffi- cient no-strike clauses-unless it be claimed, in the face of Rockaway News, supra, that there cannot be any such Certainly as counsel for the Union argues, the economic dispute between the men's unit and the Company was not cognizable under the clericals' contract and was not subject to grievance But the clericals' claim of a right to strike because of the men's dispute and picket line was, whatever its merits, cognizable as a grievance which the Company, if belatedly, offered to expedite In any event, the no-strike provisions applied As noted above, when the General Counsel urges that reference here is to disputes arising under the contract, that reference is to the grievance procedure, not to the no-strike provision If an arbitration clause is the quid pro quo for a 6 Granite City Steel Company 87 NLRB 894 895 7 Kellogg Company 189 NLRB No 123 enfd 457 F 2d 519 (CA 6 March 22 1972) 8 Hoffman Beverage Company 163 NLRB 981 1 The Hearst Corporation News American Division 161 NLRB 1405 1416 no-strike clause, the latter is not to be vitiated by a specious argument which would sanction removal of controversies from the scope of a no-strike provision as broad as that in the contract before us The General Counsel argues for waiver or an interpreta- tion of the agreement, or both, on the basis of past practice, when the men struck in sympathy with the women in 1969 The fact that the Company at that time wrote two letters threatening discharge but took no action, the strike ending a few days later, does not establish a pattern or precedent for the situation when, after, a longer period and virtually complete cessation, operations now had to be resumed Neither the failure to discharge the men on sympathy strike in 1969 nor the provisions of the clericals' contract constitute that waiver of the no-strike provision which must be spelled out in clear and unequivocal terms 11 As pointed out, the clericals' contract was signed and the sympathy strikers returned to work within a few days after they were warned in 1969, the work continuing, now the clericals had been out for 2-1/2 weeks and the prospect was that the men would continue their strike for a long time, as they did until August 30, and the clericals theirs in sympathy while their own work accumulated There was no waiver or acquired "right to honor [the] picket line," now claimed by the Union, if the clericals opined or "concluded" otherwise, it was in the face of prompt notice by the Company If on one hand it be claimed that no employee was disciplined in 1969, it is clear on the other that the Company's warnings at that time were not questioned If they rely on the Company's limited action in 1969, the clericals cannot ignore the failure at that time to question the Company's position (and the apparent acceptance of it) vis-a-vis those who had refused to cross a picket line Aside from the difference between the 1969 and the instant situations, noted above, we cannot properly rely on failure to do more than issue warnings and ignore the failure to question those warnings Reference has already been made to the testimony concerning the Company's proposals of June 9 and July 20 The General Counsel argues that these indicate that the Company itself evidently considered the provisions to be ambiguous and that it therefore called for further agree- ment concerning it That proposal no more indicates an admission by the Company concerning its understanding of the meaning of the no-strike provision, than it does a superabundantly cautious attempt to avoid repetition of the situation Manifestly, not every contingency can be foreseen If an attempt be made to meet an interpretation which is not accepted and to avoid the effect of such an interpretation, that attempt does not itself affect the meaning and effect of the language previously used 12 The question remains, how is the contract language to be construed here and what are the rights of the parties 13 I find and conclude that the clericals' strike was unprotect- 10 Textile Workers Union of America AFL-CIO v Lincoln Mills of Alabama 353 U S 448 11 The Timken Roller Bearing Company 138 NLRB 15 16 12 See Kellogg Company v NLRB 457 F 2d 519 (C A 6 March 22 1972) 13 If an employer s subsequent compliance with an award supporting a GARY-HOBART WATER CORP 653 ed, that the discharges on June 17 were lawful, and that the clerical strikers were thereafter no longer employees Although with this finding it becomes unnecessary to proceed to the other allegations and defenses, I am also led by a regard for the efforts of counsel to state, without detailing all of the record testimony, what my findings would be on the basis of the evidence pro and con on those matters With detailed examination with respect to the Compa- ny's list of clericals and their replacements and the abolition of their jobs, the issue is raised of the Company's right to discharge before replacement, granted the public service status of the business Here we must recognize that the strike was in violation of the contract and the further fact of need to preserve efficient operation of this important utility From the record it appears that sufficient help was available during the brief production and maintenance strike in 1969, not so when 34 of 35 clericals struck in 1971 That the public interest and public service regulations required the Company to continue to provide water is clear While such interest and regulations did not carry over directly to billing and other commercial and administrative operations, the Company could not for long neglect such operations, it delayed for 17 or 18 days, a reasonable period In this connection reference may be made to Redwing Carriers 14 and to Montana-Dakota,15 the latter particularly with reference to any attempt to replace and the distinction between preserving efficient operation and disciplining Insofar as need for employees is concerned, during the I- 1/2-week strike of clericals in 1969, when production and maintenance employees stayed out in sympathy, the Company operated with the aid of approximately 30 or 40 percent of the latter, who did cross the picket line Touching briefly on the contigency defenses, we come to the issue of unconditional offer by the clericals to return It is frequently difficult to prove the facts, and difficult to make credibility findings Testimony may be colored or the evidence presented only partially As an example of the latter, Katz, attorney for the Union, testified that at a meeting on August 24 between representatives of the Company and of the clericals' local (this after the Company's letter of August 19), he declared that they wanted to work out details of the girls going back to work, that the Company's reply was that there was nothing to talk about since all had been fired, and that after further discussion Chief Steward Mandich stated that all of the girls were ready to go back to work Asked whether there was "any mention made of the men's local," Katz replied in the negative He was not asked whether mention was made of the production and maintenance employees returning to work He offered no outright denial that Mandich had connected the clerical's return with that of the men On this latter point we received testimony pro and con But most significant in this connection was Mandich's own admission that the clericals "were offering to go back to work with the men " Two months after the discharges, and the men still on strike, this offer to return was conditional despite Mandich's insistence that she imposed no condi- tions 16 Mandich is intelligent and forceful Her admission is meaningful, and I do not credit her denial on rebuttal Whatever was otherwise testified to by witnesses whose memory might be deemed slight or whose bias great, we find support for the admission in Mandich's subsequent testimony that the clericals were "honoring the picket line set up by Local 13584" That was and continued to be, as she told us, their policy Accepting the telegram's statement of the motive which prompted it 2 months after the discharges, it was on its face a joint request and referred to a joint return The clericals' return was intertwined with and conditioned on a proposal to "work out details" with respect to return by members of both locals The women struck in sympathy with the men It does not appear that such sympathy, their purpose, or their procedure changed We recall that the members of Local 13584 did not end their strike until August 30 Beyond all of this, we have documentary evidence which points to the offer of return as conditional, this indicated in the concatenation between the two locals as indicated in the telegram of August 18 Louis, the company president, did not attempt to detail the discussion or even Mandich's part in it But his uncertain summary or conclusionary statement confirmed what we had already heard As he recalled, "she said that she would like to have the clencal workers go back with the men " This was more directly testified to by other company witnesses, who confirmed what Mandich herself admitted With decision on the issues of unlawful discharge, unfair labor practice strike, entitlement to reinstatement, and offers to return, it becomes unnecessary to pass on the question whether the clericals' jobs were permanently filled or abolished We need not trace the list of clencal personnel and their replacements and the detailed exami- nation and cross-examination concerning these to deter- mine whether any of the former employees' jobs remained unfilled and available Some jobs had been elirmnated, others were filled by permanent or temporary replace- ments At the trial the Company showed a film to support its defense of mass and violent picketing There was no such identification as would justify the refusals to reinstate and, as I stated ex directo on the record the incidents depicted did not appear to approach, in seriousness or vigor, incidents described in the cases and which the Board has found to be no more than examples of acceptable "animal exuberance" or "normal picket line activity " (It should suffice to refer parenthetically to the fact that still pictures were also taken at various times ) union s position does not excuse an earlier violation by the union Local 423 Laborers (Mansfield Flooring Co Inc d/b/a Columbus Cement Floors) 195 NLRB No 35 the attempt here to obtain agreement on the position indicated in the contract and asserted by the Company does not alter the fact that the clericals and their local had violated the contract 14 Redwing Carriers Inc and Rockana Carriers Inc 137 NLRB 1545 15 Supra 16 Her earlier testimony was that she declared at this meeting that the clericals felt that they had a right to go back too if the men were going back to work 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the defense that the issues should have been arbitrated, 2 years ago, well before Collyer,17 I analyzed a deferral problem in which arbitration would not settle all of the issues, including violation of Section 8(a)(3), before the Board, and despite such delays in the past and to date, I submit that delay in Board processing is not built in The rights of litigants can be determined fully and expeditiously Collyer, since issued, and decisions in other cases pending would now be determinative, but we need not pass upon that question here The arbitration procedure under the contract, with the requirement that each party name an arbitrator and thus consent and proceed to arbitration, and the deferral by the Board in Collyer, present a procedural problem which now remains unsolved We can defer to a more appropriate time consideration of the questions which could be raised in this respect Whatever else may be said in this connection, the clericals not having requested arbitration, the Company's arbitration offer on July 22, whatever its effect, was not "negated" by its refusal to bargain when it subsequently declared the contract terminated replaced, the status of the replacements depending on reinstatement of the strikers and both groups being deemed employees eligible to vote on the issue of representation The Union has not claimed that it representedis the replacements or that it represented a majority Upon their lawful discharge on June 17, the erstwhile strikers were no longer employees Both sides agreed19 that the refusal to bargain aspect depends on the issue of the validity of the discharges, or that the 8(a)(5) finding is a derivative of the 8(a)(3) The latter having been dismissed , it follows that the allegations of violation of Section 8(a)(5) must likewise be dismissed D The Alleged Violation of Section 8(a)(1) All of the interference alleged is admittedly derivative and dependent upon the findings with respect to the other allegations The allegations of violation of Section 8(a)(1) are dismissed 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 20 C The Alleged Violation of Section 8(a)(5) This is not a case where protected economic strikers are 17 Collyer Insulated Wire supra 18 It was stipulated that since August 15 very few if any clericals employed by the Company have been members of Local 13584 We need not concern ourselves with the defense that the Union would be involved in a disqualifying conflict of interest-more correctly whether it would be representing employees who had conflicting interests-and the law concerning the extent of its right to do so 19 Because the issue is now raised in the Union s brief and stipulated matters are sometimes overlooked on review, with a finding that they ORDER The complaint is dismissed in its entirety cannot be found I repeat that the transcript includes a stipulation and subsequent admission in this connection 20 In the event no exceptions are filed as provided by Section 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 Section 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