Container Corp. of America

CONTAINER CORP. OF AMERICA 961 Container Corporation of America and Local 1208, United Paperworkers International Union, AFL-CIO, CLC. Case 13-CA-11415 May 28, 1974 DECISION AND ORDER By MEMBERS JENKINS, KENNEDY, AND PENELLO and Respondent filed a response to the Union's motion.3 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. Upon the basis of the stipulation, the briefs, and the entire record in this case, the Board makes the following: FINDINGS OF FACT Upon a charge duly filed on April 17, 1972, by Local 1208, United Papermakers and Paperworkers AFL-CIO,' hereinafter called the Union, the Gener- al Counsel of the National Labor Relations Board, by the Regional Director for Region 13, issued a complaint and notice of hearing on September 10, 1973, against Container Corporation of America, hereinafter called Respondent. The complaint alleg- ed that Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, by discharging 11 named employees for engaging in union or other concerted activities and having participated in a concerted work stoppage. On September 19, 1973, Respondent filed an answer denying the commission of any unfair labor practices, and asserting that, since the dispute had been submitted to arbitration, the complaint should be dismissed in accordance with Spielberg Manufacturing Company.2 On October 18 and 19, 1973, the parties executed a stipulation by which the parties waived a hearing before an Administrative Law Judge and the issuance of an Administrative Law Judge's Decision and recommended Order, and agreed to submit the case to the Board for findings of fact, conclusions of law, and an Order, based upon a record consisting of the stipulation of facts and exhibits, together with the charge, the certification of service thereof, the complaint and affidavit of service thereof, and the answer and affidavit of service thereof. On November 7, 1973, the Board approved the stipulation of the parties and ordered the case transferred to the Board, granting permission for the filing of briefs. Thereafter, both the General Counsel and the Respondent filed briefs, Respondent filed a Motion for Consideration En Banc, the General Counsel filed an opposition to Respondent's motion, the Union filed an opposition to Respondent's motion and a Motion for Chairman Miller to Disqualify himself from participating in this case, 1 In August 1973, the Union changed its name to Local 1208, United Paperworkers International Union , AFL-CIO, CLC 2 112 NLRB 1080 3 Respondent's Motion for Consideration En Banc is hereby denied as I. JURISDICTION Container Corporation of America is, and at all times material has been, a Delaware corporation with a plant and place of business in Carol Stream, Illinois, where it is engaged in the manufacture and distribution of containers and related products. During the past calendar or fiscal year, a representa- tive period, Respondent sold and shipped finished products valued in excess of $50,000 from its plant in Carol Stream, Illinois, directly to customers located in States other than the State of Illinois. Respondent admitted, and we find, that Container Corporation of America is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent admitted, and we find, that Local 1208, United Paperworkers International Union, AFL-CIO, CLC, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The facts in this case are essentially undisputed. On March 30, 1972, the following named employees covered by the collective-bargaining agreement then in effect between Respondent and the Union ceased work concertedly and engaged in a strike to protest the discharge of their union steward, Ollie Clemons: Alfred Barry, Matthew Blevens, Jorge Diaz, James Pierce, Jimmy Randall, Artemio Rangel, Carl Rich- ardson, Howard Tucker, Fred Williams, Norman Williams, and Eduardo Villavicencio. It was agreed by the parties that the discharge of Clemons was not in violation of the Act. In any case, on that day, Respondent discharged these I I employees for their participation in the strike. On April 3, 1972, the Union made unconditional there has been no showing that this case presents a matter warranting full Board consideration Inasmuch as Chairman Miller is not on the panel that was assigned this case, the Charging Party's motion that he disqualify himself is moot 210 NLRB No. 149 962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD offers, on behalf of these employees, to return to work. On April 5 and 6, 1972, two grievances were filed alleging, respectively, that the discharges of Clemons and the 11 employees were unjust. On December 14 and 15, 1972, an arbitration hearing was held on the grievances and on April 13, 1973, Arbitrator Bert L. Luskin issued his award, in which he analyzed the relevant contractual provisions and found that, while the Respondent did not have dust cause to discharge the 11 individuals, it did have just cause to suspend their employment with Respondent. The contract provisions involved in the instant case are as follows: Article XVIII- GRIEVANCE PROCEDURE Section 1. Should grievances arise, there shall be no suspension or interruption of work on account of such grievances, and a diligent effort shall be made to settle all grievances as soon as possible after they have been presented. The Union or any employee having a grievance shall submit same in writing as promptly as possible, not later than five (5) working days after the cause for complaint becomes known to him. Such grievance shall be submitted and signed by the employee in tripli- cate upon a grievance blank. One copy of such signed grievance is to be submitted to the Company. Such grievance shall state all the known facts claimed in support of such grievance. Section 2. When grievances arise, the steps to be followed shall be as provided for in the respective plant exhibits attached hereto. At the conclusion of each step in the Grievance Procedure, the Company and Union shall note disposition of the grievance in detail; if not settled, each party shall note all the facts in support of its position. Article XIX- ARBITRATION In the event that a grievance based on the claimed violation of specified provisions of this Agree- ment shall not have been satisfactorily settled, it may be submitted to an arbitrator in the following manner, provided that within sixty (60) days after the Company answer has been given to the Union at the last step in the Grievance Procedure-Arti- cle XVIII, the Union advises the Company in writing of its intention to submit the grievance to arbitration (such sixty [601 day period may be extended for fifteen [151 days upon written request by the Union): Section 1. During the term of this Agreement, the International Unions and the Local Unions signatory to this Agreement agree that they will not cause, give their approval to, nor participate in any strike, slowdown, or other concerted stoppage of work in any or all of the plants, and, correlative with this provision, the Company agrees that it will engage in no lockout. Section 2. In the event any employee or group of employees covered by this Agreement shall, during the term of this Agreement, participate in any strike, slowdown, or other concerted stoppage of work in any plant, both the International and the Local Union involved agree immediately upon being notified by the Company to direct such employee or group of employees to resume work. Should such employee or group of employ- ees fail to resume work immediately upon being so directed, or should the International Union and its Local fail immediately to give such direction, such failure shall be cause for discharge or such disciplinary actions as the Company may care to take with regard to the employees concerned. Section 3. The Company agrees that it will not hold the International Union liable by reason of any provisions of this Article for any strike, slowdown, or other concerted stoppage of work in any plant by employees in the bargaining unit during the term of this Agreement, provided the International Union has abided by the covenants of this Agreement. Section 4. The Company further agrees that it will not hold the Local Union liable by reason of any provisions of this Article for any strike, slow- down, or other concerted stoppage of work in the plant by employees in the bargaining unit during the term of this Agreement, provided the Local Union has abided by the covenants of this Agreement. Article XXII- DISCHARGE AND SUSPENSION CASES Section 1. Any employee discharged or suspended shall on request receive full and complete reasons for such discharge or suspension, and his Steward or a Grievance Committee member shall be notified immediately and given an opportunity to take up his grievance, if any. Such employee may request the presence of his Local Union repre- sentative at the time such reasons are given. Article XXI- STOPPAGE OF WORK Section 2. If an employee feels that he has been CONTAINER CORP. OF AMERICA 963 unjustly discharged or suspended, he shall have recourse to the Grievance Procedure if he submits his grievance within five (5) working days after such discharge or suspension. If it is established through the Grievance Procedure that such discharge or suspension was unjust , the dis- charged or suspended employee shall be reinstat- ed to his former position without loss of seniority and such arrangement shall be made to compen- sate him for lost time as shall be determined under the Grievance Procedure in view of all the facts. Article XXIV- RESPONSIBILITIES Section 2. The Parties recognize that the opera- tion of the various plants and the direction of the work force therein is the sole responsibility of the Company. Such responsibility includes among other things: (a) The right to discharge, discipline, demote, layoff or suspend for just cause, subject to Article XXII of this Agreement. A. Contentions of the Parties The General Counsel contends that the strike was protected activity within the meaning of the Act because Respondent did not meet what the General Counsel asserts is the "condition precedent" to discharge set forth in article XXI of the contract. Respondent did not notify either the International or the Local Union about the strike, and thus, Respon- dent could not legally discharge these 11 employees. Therefore, argues the General Counsel, the strike remained a protected activity under Section 7 of the Act, and, under Wagoner Transportation Company,4 and subsequent cases,5 Respondent violated Section 8(a)(2) and (3) of the Act by discharging the strikers. Respondent, on the other hand, contends that the Board should defer to the arbitrator's award and dismiss the complaint under the doctrine enunciated in Spielberg Manufacturing Company.6 Respondent urges that the question of whether the 11 employees should have been discharged has already been submitted to arbitration, that the aribtrator's inter- pretation of the contract is not repugnant to the purposes and policies of the Act, and that this dispute is not unlike National Tea Company, Standard Grocery Division,7 wherein the Board deferred to the arbitrator's award. On the merits of the allegation, Respondent argues that, while it retains the right to discharge for dust cause under the contract, article XXI merely provides that where, in spite of the no- strike clause, a strike occurs and the Union has been notified, but either refuses to direct the employees back to work or the employees refuse such direction, then Respondent may discharge them without meeting its burden of proving just cause for its action. In short, Respondent asserts that article XXI gives the company greater discretion in meting out discipline than under the normal provisions set forth in article XXIV. In response to Respondent's contention that this case should be deferred, the General Counsel contends that the issue of whether this strike was illegal was actually not before the arbitrator, that the arbitrator did not find that the employees violated the contract, and that the arbitrator did not decide whether article XXI constitutes a limit on the Respondent's right to discipline striking employees. B. Analysis and Conclusions In essence, the fundamental controversy involved in this proceeding is whether the collective-bargain- ing agreement, in article XXI, contains a condition which must be met in order for the Respondent to discipline employees who strike during the term of that agreement. The General Counsel asserts that such a condition precedent exists and, since it was not fulfilled, the strike remained a protected activity and the discharge of the strikers violated the Act. Respondent's contention that article XXI merely eliminates the burden of proving just cause for the discharge of employees who strike during the term of the contract underscores the fact that the central issue herein turns on the interpretation of the various contractual provisions. The basic issue having been submitted to the arbitrator, we shall not attempt to substitute our expertise for that of the arbitrator in matters of contract interpretation. Thus, it has been the Board's established policy to give binding effect to arbitration awards where the proceedings have been fair and regular and where the results are not clearly repugnant to the purposes and policies of the Act. The validity of such an award is not, however, to be determined on the basis of whether the Board would reach the same result as reached by the arbitrator.8 In the circumstances of this case, we believe that the policies of the Act will be effectuated by giving conclusive effect to the arbitrator's award and, on that basis, we shall dismiss the complaint herein in its entirety. 4 177 NLRB 452, affd 424 F 2d 628 (C A 6, 1970). 5 Wintle Delivery and Refrigeration Truck Service, Inc, 200 NLRB No 129; Food Fair Stores, Inc, 202 NLRB 347 6 Supra 1 198 NLRB No 62 8 Spielberg, vupra 964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER .IENKINS, dissenting: The employees here were discharged for striking. Unless the discharges were permitted by the no-strike clause of the collective-bargaining agreement, they violated the Act. This much is undisputed. The arbitrator did not decide this issue, but instead found that there was "just cause" for suspending but not for discharging the strikers. He did not examine the no- strike provisions, nor purport to decide their applica- tion, and thus did not and could not have decided whether any discipline, whether discharge or suspen- sion, was permitted by those provisions. Accordingly, the arbitrator did not decide the statutory issue and his award does not meet our Speilberg standards. I have previously expressed doubts about our authority to defer statutory rights to arbitration, even under our Spielberg criteria and the majority's application of them. See my dissents in Terminal Transport Company, Inc., 185 NLRB 672, and Collyer Insulated Wire, 192 NLRB 837. The majority's willingness, exemplified here, to consider an award based on "just cause" as disposing of statutory issues which the arbitrator plainly did not address virtually insures the destruction of statutory rights, as hap- pened here. No amount of "just cause" can validate a discharge for engaging in activity protected by the statute. It is undisputed that the Respondent did not notify the Unions of the strike to enable them to make an effort to end it. Without such notice, the no- strike clause is inapplicable, cannot justify the discharges, including the suspensions approved by the arbitrator, were unlawful. The Supreme Court, in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), has just put a period to such destruction of statutory rights by holding that deferral to an arbitration award, even under standards more stringent than Spielberg, does not relieve the statutory tribunal, this Board, from the obligation to decide the case de novo on the merits, with the award being only evidence on the issues, to be accorded such weight as it may deserve. The violation is plain, the arbitrator has not addressed it, and I would find it.