Mosler

KELLER-CRESCENT COMPANY Keller-Crescent Company, a Division of Mosler and Charles M. Davis, Harold Griese , Gerald Chipps, Billy C. Denton, Everett E. Davison, Arthur E. Pfeiffer, Robert Van Britson, David Ash, Edison L. Chanley, Elizabeth Skelton , Daniel Osborne, and Wayne R. Burdge. Case 25-CA-5210(1-12) May 2, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On August 21, 1974, Administrative Law Judge Paul E. Weil issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed cross-excep- tions, a response to General Counsel's exceptions, and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and the briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, only to the extent consistent herewith. Before addressing ourselves to the issues raised by the parties, we believe a brief summary of the back- ground in which the instant controversy arose is in order. Respondent manufactures cardboard containers and related products at its plant located in Evansville, In- diana. Different units of its employees are separately represented by Evansville Typographical Union No. 35, herein called the -Union; Local 117 on the Evans- ville Printing and Pressman and Assistants Union, A]FL-CIO, herein called the Pressmen; the Interna- tional Bookbinders Union; and the Lithographers and Photo Engravers International Union, herein called the LPIU, respectively. During the summer of 1972, con- tract negotiations between Respondent and the Press- men broke down, and the Pressmen called a strike commencing July 24, 1972,1 and terminating July 29. During the Pressmen's strike the Charging Parties, members of the Union, honored the Pressmen's picket line and failed to report to work. At the termination of the Pressmen's strike, the Charging Parties returned to work, at which time Respondent, while allowing them to return to work, advised Chapel Chairman Wayne R. Bus dge that Respondent considered the Charging Par- ties' failure to cross the Pressmen's picket line to be in violation of their no-strike clause2 and that, accord- I All dates are 1972 unless otherwise indicated 685 ingly, repercussions would follow. Shortly thereafter Respondent announced and put into effect a 1-week suspension of all the Charging Parties, with the excep- tion of Burdge who received a 2-week suspension, said suspensions commencing on August 7 and ending Oc- tober 25. 2 The no-strike clause is found in sec 13 of the contract which reads as follows: JOINT STANDING COMMITTEE Section 13-A Joint Standing Committee of two representatives each of the Employer and the Union shall be selected. It is agreed that if neither of the Union representatives is an employee of the commer- cial branch of the punting trade, that one member shall be selected by the Union from the employees of above-mentioned commercial branch of the trade, such member to attend all meetings of the Joint Standing Committee, but not to have the power to vote on decisions To this committee shall be referred all disputes which may arise as to the application of and construction to be placed upon any provision of this agreement, or alleged violation thereof, which cannot be settled other- wise. Such joint committee shall meet within seven days after any question shall have been referred to it for decision by the executive officers of either party to this agreement. Should the Joint Standing Committee be unable to agree within ten days, then the membership of same, shall within five days, select a fifth member If the four (4) members cannot agree on a fifth member within ten (10) days, such fifth (5th) member shall be selected in accordance with the procedure of the American Arbitration Association The decision of the committee shall be final and binding upon both parties Provided the General Laws of the International Typographical Union shall not be subject to arbitra- tion. It is agreed that the conditions prevailing poor to any dispute shall be maintained until the Joint Standing Committee has rendered a deci- sion as provided above except in discharge cases There shall be no strikes or lockouts during the term of this agree- ment unless either party refuses to comply with the grievance proce- dure as outlined hereinabove It is agreed that the procedures for the settlement of any disputes or grievances arising under this contract are as defined herein and that the only recourse each party may have against the other for any damages alleged to be due for any breach of this contract shall be to the Joint Standing Committee Expenses of any arbitration proceedings, excluding attorney fees, are to be borne equally by both parties. Approved expenses of any arbitration proceedings, excluding attor- ney fees, are to be borne equally by both parties. Under no circumstances shall the arbitrator have the power or right to add to, subtract from, change or modify any provision of this con- tract The arbitrator is authorized only to interpret the specific provi- sion(s) of the contract, and to apply them to the specific facts of the grievances which are being arbitrated Other relevant contract provisions include sees. 11 and 12 which read as follows: STRUCK WORK Section 11-The Employer agrees not to require employees to exe- cute any work received from or destined for another employer whose employees are locked out or on a strike authorized by the International Typographical Union under circumstances which make the Employer an ally of such other employer, and such work shall not be within the scope of the employment of employees covered by this agreement No employee shall refuse to execute such work until 24 hours after notice of such stoke or lockout has been given to the Employer by the Union Section 12-No employee covered by this contract shall be required to cross a picket line established because of a strike by, or lockout of, any other subordinate Union of the International Typographical Union, when such strike is authorized by, or such lockout is recognized by, the ITU. 217 NLRB No. 100 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. On deferral Respondent contended for the first time in its brief to the Administrative Law Judge that since the Union has invoked the grievance-arbitration machinery of the contract to challenge Respondent's suspensions of the Charging Parties, but has failed to request arbitration within the prescribed time limits, it has thereby aban- doned its grievance. From this contention Respondent argues in effect, if we understand its argument cor- rectly, that since the subject of the grievance was thereby resolved against the Union prior to arbitration and within the grievance provisions, the Board should not assert jurisdiction herein, citing to the Administra- tive Law Judge in support of its argument our decision in Spielberg Manufacturing Company, 112 NLRB 1080 (1955). In his Decision the Administrative Law Judge failed to address himself to this issue. In its cross-excep- tions and brief in support thereof, Respondent excepts to the Administrative Law Judge's failure to do so, and reasserts its argument before us. While we find that the Administrative Law Judge's failure to give considera- tion to this issue was error, for the reasons herein set forth we find that such error was not prejudicial. Assuming, arguendo, that Respondent's disciplinary suspensions were a proper subject for a grievance, we are nonetheless not persuaded by Respondent's argument. Thus at the hearing Respondent adduced some generalized uncontradicted testimony from its witnesses Everett E. Davison and Fletcher Ellis to the effect that, at the Union's request, a meeting of union and management representatives was held at which time the subject of Respondent's disciplinary suspension of the Charging Parties was discussed. Thereafter it appears that a second similar meeting was held, apparently on August 15. According to Ellis, this meeting "was asked for as a Joint Standing Committee"; whether the Union or management asked that this meeting be considered a joint standing committee is not disclosed on the record. Based on a composite of the testimony of Davison and Ellis, at this meeting the Respondent declined to change its position with respect to imposing disciplinary suspensions on the Charging Parties, and accordingly we infer that the Union's representatives sought to have Respondent rescind its action in this regard. As Davison testified without contradiction, no resolution was made of the issue at that time. Section 13 of the contract between Respondent and the Union, entitled "Joint Standing Committee," fully set forth at footnote 2, supra, sets forth the grievance machinery to be utilized by the parties. It provides, in part relevant to the deferral issue now under considera- tion, that all disputes which may arise as to the applica- tion of an construction to be placed upon any provision of the agreement, or alleged violation thereof, which cannot be settled otherwise, shall be referred to a joint standing committee comprised of two representatives each of Respondent and the Union, respectively. Sec- tion 13 further provides that where these four members of the committee are unable to agree then the member- ship of same shall select a fifth member and, if the four members cannot agree on a fifth member, such fifth member shall be selected in accordance with the proce- dure of the American Arbitration Association. Finally it provides that the decision of the committee shall be final and binding upon both parties. In our opinion, this evidence fails to support Respon- dent's contentions and argument. Thus, as heretofore noted, the record does not clearly disclose that the Union, as opposed to Respondent, invoked the griev- ance, machinery. In addition, as we read the contract, absent agreement by the four members, it was incum- bent on the four members, including Respondent's rep- resentatives, to select a fifth member to resolve that dispute. While Respondent stresses the fact that the Union's representatives did not request to do so, like- wise there is no evidence that Respondent's, representa- tives requested selection of a fifth member. Accord- ingly, while Respondent argues in effect that the Union's failure to request the selection of a fifth mem- ber was tantamount to an abandonment of a grievance by the Union, and an acceptance of Respondent's posi- tion with regard to the disciplinary suspensions, it can be said with equal persuasion that Respondent elected to abandon the grievance procedure and thereby conceded to the Union's request for recission of its disciplinary action, a concession which obviously Re- spondent has not lived up to. Most significant, how- ever, is the fact that, as heretofore noted, the dispute was in any event not resolved, and therefore we cannot perforce defer to its "resolution" pursuant to Spielberg. Furthermore, even assuming arguendo that the dispute here was resolved against the Union within the grievance machinery as apparently contended by Respondent, on the basis of the scant evidence before us we are unable to ascertain whether or not the Spiel- berg standards have been met here. In relying on defer- ral pursuant to Spielberg as an affirmative defense, Re- spondent had the burden of pleading it, which it did not do, and proving facts sufficient to establish the applica- bility of the principles established in the Spielberg case. We find that Respondent has not met that burden here. Finally, as heretofore indicated,- it is not entirely clear as to just what Respondent is arguing. If Re- spondent intended to argue merely that, since the Union invoked the grievance machinery on behalf of the Charging Parties and then abandoned it, the Charg- ing Parties are now estopped3 from reviving-the un- 3 At no time does Respondent specifically use the term "estoppel." KELLER-CRESCENT COMPANY 687 derlying dispute before the Board, we are unwilling on the basis of this sparse record to find merit in any such estoppel argument. 2. On the merits The Administrative Law Judge found that the Charging Parties were given a disciplinary suspension for refusing to cross the Pressmen's picket line. The Administrative Law Judge further found that absent any other evidence in the record, the no-strike prohibi- tion set forth in section 13 is expressly inapplicable in the instant case, because the waiver of the right to strike therein is only as extensive as the scope of the grievance and arbitration procedure, which in turn extends only to disputes which may arise as to the application of and co nstruction to be placed upon any provision of the agreement, or alleged violation thereof. He therefore concluded that, inasmuch as the issue of the strike engaged in by the Charging Parties was that of the basic strike of the Pressmen, i.e., the Pressmen's contract, and since the Pressmen's contract was by no means cognizable under the terms of the Union's contract, the dispute which gave rise to the Charging Parties' strike was not a grievable dispute, and the strike did not therefore fall within the no-strike ban of section 13. We agree.' Nonetheless, the Administrative Law Judge also found in effect, as contended by Respondent, that sec- tion 12 of the contract, coupled with collateral evidence of contractual intent with respect thereto, revealed an intent on the part of the parties to encompass within section 12 a prohibition from honoring any picket line except that of a subordinate union of the Union's Inter- national affiliate, the International Typographical Union, herein called ITU. Otherwise stated, the Ad- ministrative Law Judge found that the language of sec- tion 12 of the contract, coupled with collateral evidence as to the parties intent vis-a-vis section 12, warranted the conclusion that the Union had therein waived the right of its members to honor a picket line established by any union other than an affiliate of the ITU. Ac- cordingly, the Administrative Law Judge found that in refusing to cross the Pressmen's picket line the Charg- ing Parties were engaged in unprotected activity, and 4 See, Gary-Hobart Water Corporation, v NL R.B., 511 F 2d 284 (C A 7, 1975), enfg. 210 NLRB 742 (1974). In our view the circumstances of the instant case present an even stronger basis than existed in Gary-Hobart for the conclusion that the no-strike pledge here did not encompass sympathy strikes Thus, here, we note the additional factor that the contract expressly limits the powers of the arbitrator, divesting him of any power to add to, subtract from, change, or modify any pro vision of the contract, and authoriz- ing him "only to interpret the specific provisions of the contract, and to apply them to the specific facts of the grievances which are being arbitrated." (Emphasis supplied.) Moreover, we note that the damages clause of sec 13 provides "It is agreed that the procedures for the settlement of any disputes or grievances arising under this contract are as defined herein . ." (Em- phasis supplied) In our opinion these provisions buttress the conclusion that the grievance machinery here was intended to resolve only disputes arising under the contract Respondent's disciplinary suspension of the Charging Parties for engaging in such activity was not therefore violative of Section 8(a)(1) of the Act. We believe the Administrative Law Judge's findings and conclusions in this regard are in error. As we recently reaffirmed,' it is now well estab- lished that the right to engage in a sympathy strike or to honor another union's picket line is a right created and protected by the Act. It is equally well established that such a statutorily created and protected right may be waived by appropriate provisions in a collective- bargaining agreement.' And while statutory rights may be waived, the Board and the courts have repeat- edly emphasized that a waiver will not be lightly in- ferred and must be shown by "clear and unmistakable" language.' Thus a statutory right, such as the right to honor picket lines, exists unfettered and undiminished in the absence of some explicit language contained in the contract unmistakably waiving or in some manner limiting it, or language, warranting resort to considera- tion of collateral evidence of contractual intent, which evidence clearly and unequivocally establishes that the union understood and intended said language to waive or limit the statutory right, despite the lack of the reduction of this intent into clear and express language in the contract. s Turning then to the language of section 12 (see fn. 2, supra), it is clear that this language does not in any manner purport to waive or limit the Charging Parties' right to honor another union's picket line. To the con- trary, the language of section 12 is, significantly, per- missive, and creates as a matter of contract right that which theretofore existed only as a matter of statutory right. Indeed, section 12 specifically preserves the statutory right of the Charging Parties to honor a picket line established by a subordinate union of the ITU. Moreover, on its face section 12 is entirely con- sistent with the reservation of the statutory right to honor picket lines established by other unions. Thus we find, as did the Administrative Law Judge, that section 12 of the contract does not expressly waive the right to honor another union's picket line. Nonetheless, the Ad- ministrative Law Judge, applying the maxim inclusio unius est exclusio alterius,9 found that the language used in section 12 gave rise to the inference "that em- ployees may be required to cross a picket line estab- lished by any union other than the ITU." In our view, the Administrative Law Judge's application of this 5 Gary-Hobart Water Corporation, supra 6 Mastro Plastics Corp and French-American Reeds Mfg. Co., Inc. v NL.R.B., 350 U S 270 (1956), Gary-Hobart Water Corporation, 210 NLRB 742 7 Gary-Hobart Water Corporation, supra, and cases cited at In 9 thereof. i New York Mirror, Division of the Hearst Corporation, 151 NLRB 834 (1965), Kennecott Copper Corporation (Chino Mines Division), 148 NLRB 1653 (1964) 9 "Where one is expressly included, all others are excluded." 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD maxim and the inference drawn as a result thereof was in the circumstances present here clearly erroneous, for the Board and the courts have specifically rejected its application, and the inference drawn as a result thereof by the Administrative Law Judge, where part but not all of a statutory right is reduced to a specific contrac- tual right."Q To- the contrary, the inference, if any, to be drawn .is a general intent to memorialize in the contract the statutory right, not to limit it." Hence we find that the language of section 12 neither expressly nor impliedly waives the right of the Union's members to honor the picket line of a union other than a subordi- nate union of the ITU, and we reject the Administra- tive Law Judge's finding that the contract language gives rise to the inference that employees could be re- quired to cross picket lines of other unions. Moreover, the Administrative Law Judge found that said infer- ence was buttressed by collateral evidence consisting of the bargaining history surrounding the adoption by the parties of section 12. Even were we to agree that the inference found by the Administrative Law Judge ex- isted, which we do not, we would not find that said inference was butteressed by the bargaining history sur- rounding the adoption of section 12. Thus the bargain- ing history surrounding the adoption by the parties of the language of section 12 is contained in the uncon- tradicted testimony, implicitly credited by the Ad- ministrative Law Judge, of Respondent's witnesses James Riddle and Fletcher Ellis; the Union's printed contract proposals to Respondent, which document consists of three columns, the first containing the lan- guage of the "old contract," the second containing the Union's proposal, and the third entitled "union proposal accepted"; and some handwritten notes taken by Riddle during negotiations. As testified to by Ellis, the language of section 12 of the current contract has existed unchanged in succes- sive contracts covering a period of approximately 20 years preceding the current contract. As testified to by Riddle, commencing in November 1971 the parties met approximately 10 times before reaching agreement on the terms of the current contract in April 1972. During these negotiations the subject of picket lines was dis- cussed at three of the negotiating sessions. Thus the Union initially proposed that the language of section 12 be changed to read as follows: "No employee covered by this contract shall be required to cross a picket line established' because of a strike by any other union, when such strike is authorized." As testified to by Rid- dle, Respondent's reply to this proposal was merely 10 NL.R.B. v Otis Elevator Company, 208 F.2d 176 (C.A 2, 1953), N.L.R B. v J. H Allison & Company, 165 F.2d 766 (C A. 6), cert denied 335 U.S 905 (1948); The Timken Roller Bearing Company, 138 NLRB 15, 28 (1962), enfd 325 F.2d 746 (C.A 6), cert denied 376 U.S 971 (1963); Leland-Gifford Company, 95 NLRB 1306 (1951). 11 Ibid that" . . . there was no way that we were going to provide this type of broad language which provided their protection over cases that we may not even-be involved in."12 The Union then retorted, saying wasn't it only right that Respondent provide it with the same type of language that other unions had in their contracts with Respondent? According to Riddle, Ellis then asked the Union what contracts it meant, and the Union replied that it meant the LPIU contract. The Union then read the picket line provisions contained in the LPIU contract," which have the effect of protect- ing LPIU members from discipline or discharge for honoring a picket line established by any union with whom Respondent has a contract- Respondent then pointed out to the Union that the Union's initial proposal was more encompassing than the picket line language contained in the LPIU contract. The Union then proposed that section 12 be changed to read the same as the picket line language of the LPIU contract. According to Riddle, Respondent's direct response to this was again negative, stating, "What we will give you and this is all we will give you with regard to picket line language is what you alread have . . . ." (Emphasis supplied.) Thereafter, as testified to by Ellis, there reached a point in the negotiations where proposed language changes in five contract clauses remained un- resolved. Two such clauses concerned changes in lan- guage from the preceding contract proposed by the Union, one being the changes proposed to section 12 discussed above. Three such clauses concerned changes in language from the preceding contract proposed by Respondent, one being changes in the preamble clause language, the other clauses unidentified in the record. Accordingly, at this juncture the Union proposed that it would drop its two clauses in return for the Respon- dent's dropping its three clauses. Respondent agreed. In this manner, the Union failed to secure either the picket line language it initially proposed or that con- tained in the LPIU contract, and the parties moved on to a discussion of economics. We note and find signifi- cant the fact that at no time during these discussions did Respondent ever propose any language which sought to limit the Union's statutory right to honor picket lines or engage in a sympathy strike. As we recently observed however, "Unless it specifically waives it, the [Union] has the right to honor picket; lines. It is the Respondent which must obtain contrac- tual language to limit such right in clear and unmistak- able terms.s14 Nor for that matter did the Respondent 12 Whatever Respondent meant by this reply, in so responding it is clear that Respondent did not take the position that the Union's proposal repre- sented a departure from an understanding reached in prior contracts to the effect that sec 12 prohibitedthe Union's members from honoring any picket line other than that of a union subordinate to the ITU. 13 The LPIU contract was not introduced in evidence 14 See Gary-Hobart Water Corporation, supra at fn. 20. KELLER-CRESCENT COMPANY 689 ever so much as take the position that it viewed the longstanding language of section 12 as prohibiting the Union's members from honoring another union's picket line. Indeed, having taken the adamant position that it would "in no way" concede to the Union's proposals, and that "all we will give you"is the language of the previous contract, the Respondent, without giving the explanation it now urges before us, as to why it was taking such an adamant stance, made the Union the rather unwilling victim of a virtual removal of the mer- its of the proposal from the bargaining table.15 More- over, neither party ever referred to or juxtaposed the no-strike prohibition contained in section 13 of the contract during the course of their discussions concern- ing section 12 and the proposed changes thereto. In- deed, at least with respect to the Union's initial proposal, Respondent relied solely on the fact that it was opposed to it because it would, in Respondent's view, cover situations "that [Respondent] may not even be involved in . . . ." and not, most significantly, be- cause the no-strike pledge contained in section 13 ran counter to the Union's proposal. Nor does the record reflect that during whatever discussion was had con- cerning section 13 of the contract, and more particu- larly the no-strike pledge contained therein, did either party refer back to or juxtapose section 12 in the con- text of discussing section 13. Indeed the only record evidence concerning the bargaining history surround- ing, the parties' adoption of the language of section 13 consists of the Union's printed proposals, which indi- cate that either the Union or Respondent proposed to delete the damages language now contained therein, which proposal obviously was not agreed to. Some ex- planation, however, for the parties failure to discuss section 12 along with section 13 or vice versa appears in the record. Thus we note that section 12 of the contract appears, along with section 11, under the gen- eral heading "Struck Work," and is therefore separate and apart from section 13, entitled "Joint Standing Committee," And a fair reading of sections 11 and 12 discloses that the apparent intendment and principal thrust of each of these sections is to insure the Union's solidarity with its International and with unions af- filiated with the International, by insulating conduct undertaken by the Union's members to demonstrate such solidarity from conflicting and divisive directions or orders as might be received from Respondent. More- over, we note that, inasmuch as section 11 specifically uses the term "ally," a term whose meaning must be found solely in case law as it does not exist per se in the statute, such generally indicates that both sections 11 and 12 were intended to incorporate existing statutory rights as embellished by case law into specific contrac- 1"I Beacon Piece Dyeing and Finishing Co., Inc., 121 NLRB 952 ( 1958). teal provisions, and not to limit any such rights. From the foregoing bargaining history we conclude that the parties never discussed the concrete issue of whether the Union's members did or did not have the right under the contract to honor another union's picket line. Whether the parties' failure to discuss this concrete issue was due to oversight or, as is more likely, to a failure to recognize its eventual importance during the contract period16 is unexplained. In any event we are satisfied that the bargaining history here fails to establish that the Union has waived the statutory right of its members to honor another union's picket line, or has acquiesced in any limits on said right. In our opin- ion, the bargaining history here merely shows that the Union attempted unsuccessfully to include in its con- tract a statement of its members' statutory right to honor, another union's picket line. Such an unsuccessful attempt, however, is not evidence that the Union waived said right." Next considered is the conduct of the Union's repre- sentatives and the International during the course of the strike, which, Respondent alternatively argued, es- tablishes that the Union understood, and therefore in- tended, that the contractual language of section 12 meant that the Union's members were prohibited from honoring another union's picket line. Finding that the language of section 12 impliedly meant that the Union's members were prohibited from honoring any picket line except that of a subordinate union of the ITU, the Administrative Law Judge found that this inference was in fact intended by the Union when one looked to the conduct of the International and the Union's representatives during its members' sympathy strike, herein more fully set forth. We disagree. Thus, quite apart from the fact that we find no basis for such an inference in the language of section 12 as explained above, assuming arguendo the existence of such an in- ference, we are nonetheless unwilling to find that the International's and union representatives' conduct dur- ing the course of its members' sympathy strike clearly establishes that the actual intent of section 12 was to prohibit union members from honoring another union's picket line. At the outset we note that while the president of the ITU approved the parties' agreement here as being in compliance with the laws of the ITU, the contract specifically provides that "the approval of this agree- ment by the International Typographical Union as complying with its law does not make it a party hereto." Accordingly, we attach little weight to the International's conduct during the course of the strike in any event. 16 We note in this regard that the record discloses that there had not been a strike at Respondent's plant since the 1940's 17 Cloverleaf Di vision ofAdams Dairy Co., 147 NLRB 1410, 1413 (1964). 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record reflects that on July 22, the Friday preceding the Pressmen's strike, Respondent advised Chapel Chairman Burdge that in Respondent's view sections 12 and 13 of the contract prohibited the Union from honoring the anticipated picket line of the Press- men. Thereafter, Burdge contacted Union President Donald E. Clark, who told Burdge to telephone him in the event a picket line was in fact established by the Pressmen. On the following Monday, July 25, in the face of a Pressmen's picket line, Burdge telephoned Clark as directed. Clark appeared at the plant and, after ascertaining from the Pressmen that it was an authorized strike, addressed the members of the Union who were honoring the Pressmen's picket line, telling them that he would notify the International and telling them to honor the contract. On Monday, July 25, Re- spondent sent Burdge a telegram,18 alleging that the Union's membership was in violation of section 12 (sig- nificantly no mention was made of section 13) and threatening legal action against the Union. On Wednesday, July 27, Clark again addressed the Union's members at Respondent's plant who were con- tinuing to honor the Pressmen's picket line, telling them that he had heard from the International and that the International said to honor the contract. On July 26, Clark telegraphed19 Respondent stating in sum that the membership recognized the contract, charac- terizing Respondent's threat of legal actions as harass- ment and intimidation, and stating that the Union was willing to meet with Respondent to discuss the matter. We note that at no time did Burdge, Clark, or any International representative ever state to Respondent that the strike action of their membership was in viola- tion of their contract, nor did they at any time specifi- cally urge the membership to cease their strike and cross the Pressmen's picket line. In our view the con- duct of the Union's agents was at best equivocal, appar- ently undertaken in an attempt to save whole the Union from any monetary damages that might be sought in a 18 The full text of the telegram is as follows: Your union and its membership is engaged in an illegal strike in violation of Section 12 of the labor agreement between Keller Crescent Company and ITU, Local 35 Your members should cease this illegal strike and report to work immediately In the event that you might have a grievance the Keller Crescent Company is ready and willing to abide by the grievances and arbitration procedures provided in the, contract. Be advised that if you do not return to work by Thursday July 27th [sic] the Keller Crescent Company will have to take legal action against your union and its membership. [Punctuation supplied.] 19 The full text of the telegram is as follows: The members of Local 35 ITU recognized the contract we have with Keller-Crescent Company Our members are presently concerned about personal intimidation in the event the picket line presently estab- lished at your business is crossed Local 35 considers the threat of legal proceedings referred to in your telegram dated 7/25/72 as a mere attempt to harass and intimidate members employed at Keller-Crescent Company. Local 35 stands ready to meet, discuss, and negotiate a solution to the problem at your convenience [Punctuation supplied ] breach of contract proceeding brought by Respondent, as threatened. Accordingly, we find that at no time during the strike did any union agent express the direct and unequivocal view that its members were required by the contract to cross the Pressmen's picket line, evidence of which would be required to conclude that at best ambiguous relevant contract provisions were understood to, and intended to, prohibit the honoring 'of the Pressmen's picket line.20 It need not be bela- bored that where one seeks to clarify ambiguous con- tract terms by resort to collateral evidence, such collat- eral evidence, especially dehors the contract, must at a minimum be clear and unequivocal on its face. More- over, we view as irrelevant to a determination of the waiver issue here the subjective understanding of but one of the Charging Parties, to wit, Davison, to the effect that he understood Clark's announcements to mean that he should cross the Pressmen's picket line, and accordingly, we find erroneous the Administrative Law Judge's reliance on this finding, among others, in support of his conclusion now under consideration. Actions often speak louder than words, and there is no evidence that any of the Union's members who were honoring the Pressmen's picket crossed the line after either of Clark's pronouncements to them to honor the contract. Thus in the Kellogg Companl case where, as here, the bargaining history leading up to the contract failed to disclose an intention to prohibit the crossing of another union's picket line, we were unwilling to find that the union's conduct, dehors the contract, in telling its members that their failure to cross the picket line of their fellow employees represented by another union violated their contract, was sufficient to establish that the union had intended to waive in its contract the right of its members to observe the picket line of another union. A fortiori in the instant case, where the Union's conduct during the course of its members' strike is at best equivocal, we are unwilling to find such a waiver. On the basis of all the foregoing, therefore we find that the evidence in this case falls short of the requisite standard of proof that must be met to establish a waiver by the Union of a statutory right-namely, an expres- sion by the Union in "clear and unmistakable" language22 showing that the Union consciously relin- quished said right. Accordingly, when the Charging Parties failed to cross the Pressmen's picket line; they were engaged in protected concerted activity, and Re- spondent's suspensions of them for doing so constituted a violation of Section 8(a)(1) and (3) of the Act, for which we herein order an appropriate remedy. As the 20 Kellogg Company, 189 NLRB 948 (1971)'(Member Kennedy dissent- ing), enfd 457 F 2d 519 (C A 6, 1972) 21 189 NLRB 948 22 The Timken Roller Beat ing Company, supra; The Fafnir Bearing Com- pany, 146 NLRB 1582 (1964), Gary-Hobart Water Corporation, supra. KELLER-CRESCENT COMPANY 691 remedy would be the same in any event, we find it unnecessary to reach the issue raised by the General Counsel to the effect that Respondent independently violated Section 8(a)(1) and (3) of the Act when it suspended Chapel Chairman Wayne R. Burdge for an additional week allegedly solely because of his position in the Union. C£' Pontiac Motors Division, General Mo- tors Corporation, 132 NLRB 413 ( 1961). In finding as we have that the Union has not waived the right of its members to honor another union's picket line or engage in a sympathy strike, we have carefully examined the Supreme Court's decision in N.L.R.B. v. Rockaway News Supply Company, Inc.,23 and the Board's decision in the Hearst Corpora- tion, News American Division,24 relied on by the Re- spondent, in light of the fact that in both of these cases some of the facts there concededly bear a considerable resemblance to the facts here and both cases reach a result contrary to the one reached here. In our view both of these cases are distinguishable from the instant case. Thus, in Rockaway, the Court determined in ef- fect that the nonstrike pledge there ,25 broader than the one in the instant case, prohibited the honoring of another union's picket line or engaging in a sympathy strike. In so finding, the Court observed and accepted the respondent's offer of proof to the effect that, during the negotiations for the contract there, "one of the demands made by the union was a clause in the con- tract with, reference to work stoppages which would have sand `No man shall be required to cross a picket line,' that this clause was rejected by respondent and the union acquiesced in the rejection and consented to the no-strike - clause as - above recited." (Emphasis sup- pliLed.) Hence it appears that in Rockaway the union's picket line language was raised in the context of discus- sions concerning the no-strike , no-lockout, no-cessa- tion-of-work provisions, and as an exception thereto, and, having been rejected by the respondent in this context, a finding of acquiescence was properly war- ranted. In the instant case, however, as previously in- dicated, the parties did not discuss the Union's proposed picket line language in the context of the no-strike pledge, nor is there any evidence that in the context of the no-strike pledge discussions either party juxtaposed either the picket line language of section 12 as it now reads or the proposed changes thereto. In the Hearst case, two contracts, one a Teamsters contract and the other an ITU contract, each contain- ing a no-strike pledge,26 and each such pledge broader 23 345 U S 71 (1953). 24 161 NLRB 1405 (1966). 25 "No strikes, lockouts or other cessation of work or interference therewith shall be ordered or sanctioned by any party hereto during the term hereof except as against a party failing to comply with a decision, award, or ordler of the Adjustment Board." (Emphasis supplied ) than the no-strike pledge in the instant case, were under scrutiny to determine whether or not they prohibited, or waived the right to engage in, a sympathy strike. We adopted the Trial Examiner's findings, which included a finding to the effect that the contract provisions standing alone did not do so. Nonetheless, based on collateral evidence of intent, the Trial Examiner'found that the no-strike pledge in both contracts was intended by the parties to prohibit sympathy strikes or the hon- oring of another union's picket line. Thus, collateral evidence was received- with respect to the negotiations resulting in the Teamsters then current contract and the contract immediately preceding same. This evi- dence disclosed that during both negotiations the Teamsters proposed a clause reading as follows: It shall not be a violation of this agreement and-it shall not be the cause for discharge or disciplinary action in the event an employee refuses to enter upon any property involved in a labor dispute or refuses to go through or work behind any picket line, including the picket line of Unions party to this Agreement and including picket lines at the Employer's place or places of business. [Emphasis supplied.] As found by the Trial Examiner, this proposal was discussed, the joint newspaper companies refused to agree, and the clause was discarded. From the forego- ing it is readily apparent that a crucial distinction exists between the bargaining history concerning the picket line language proposed by the Teamsters in the Hearst 26 The Teamsters contractual no-strike pledge read in pertinent part as follows- Continuous and uninterrupted delivery by the Companies of their newspaper and orderly collective bargaining relations between the Companies and the Union to secure prompt and fair disposition of grievances being an essential consideration for this Agreement, it is agreed that the Union and its members individually and collectively will not, during the term of this Agreement, cause, permit, or take part in any strike, sit down, picketing or other curtailment or restricting of the delivery of the Companies' newspapers until the procedure here- inafter provided for the settlement of grievances has been exhausted, and the Companies agree not to engage in any lockouts [Emphasis supplied ] The ITU's contractual no-strike pledge read in pertinent part: The language and spirit of this Agreement guarantee the prompt and faithful performance by the Union and the Office of all obligations imposed by the terms of this Agreement. Both parties agree that when- ever any differences of opinion as to the rights of either under the Agreement shall arise, or whenever any dispute as to the construction of the contract or any of its provisions takes place, such difference or dispute shall be promptly resolved in the manner provided in this contract without strike, lockout, diminution or interruption of any kind, to the end that fruitless controversies shall be avoided, good feeling and harmonious relations be maintained, and the prosecution of the business in which the parties have a community of interest shall be assured 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case, and the bargaining history concerning the picket line-language proposals here. Thus, in the Hearst case, the Teamsters proposal specifically provided that "It shall not be a violation of this Agreement" which choice of language strongly indicates that the Team- sters negotiators understood that absent this proposed provision the agreement, more specifically the no-strike pledge contained therein, prohibited the refusal to cross another union's picket - line or engage in a sympathy strike. Accordingly, in these circumstances, the Team- sters acquiescence in the employer's refusal to accept its picket line language proposal, coupled with acceptance of the broad no-strike pledge language, warranted the inference that the Teamsters understood and intended thereby to waive the statutory right of its members to honor another union's picket line or engage in a sympa- thy strike. Any doubt that such was its understanding and intention was resolved when, as found by the Trial Examiner, the president of the Teamsters, during the course of its members' sympathy strike, told the em- ployer that "in his opinion a refusal to cross the picket line would dishonor the agreement." In the instant case, however, as previously indicated, neither the lan- guage of the Union's picket line proposals nor the bar- gaining history surrounding same warrants the infer- ence that the Union understood and intended that, absent their-adoption, the agreement eventually struck prohibited its members from honoring another union's picket line. Nor is there present in the instant case an admission to Respondent on the part of a union repre- sentative that indeed the membership's honoring of the Pressmen's picket line dishonored their contract. With respect to ITU's contract in the Hearst case, the 'Trial Examiner relied on collateral evidence of con- tractual intent consisting solely of some positive state- ments made contemporaneously with the sympathy strike action -of ITU'S members, by virtually all of ITU's officers, both local and International, to the ef- fect that the contract required its members to work behind the picket line, in reaching his- determination that ITU's actual contractual intent was to surrender the right to not cross a picket line. Indeed, commenting on the Hearst case, in the Kellogg Company27 case, we characterized this collateral evidence concerning the views of the officers of both the Teamsters and ITU expressed contemporaneously with the sympathy strike action of their respective members as "direct and un- equivocal" and "most persuasive in the context of no- strike clauses broad enough to be interpreted as forbid- ding a refusal to cross a picket line." In the instant case, as heretofore found, no such collateral evidence is pre- sent. 27 189 NLRB 948 The Remedy We have found, contrary to the Administrative Law Judge, that Respondent engaged in certain unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, by suspending its employees Charles M. Davis, Harold Griese, Gerald Chipps, Billy C. Denton, Ever- ett E. Davision, Arthur E. Pfeiffer, Robert Van Brit- son, David Ash, Edison L. Chanley, Elizabeth Skelton, Daniel Osborne, and Wayne R. Burdge for engaging in protected concerted activities. In our opinion, it is_nec- essary, in order to effectuate the purposes of the Act, that Respondent be ordered to cease and desist from engaging in such unlawful activity and to expunge from the employment records of the above-named employees any record of said suspensions and to make said em- ployees whole for any loss of pay or other employment benefits they may have suffered as a result of said sus- pensions. See Southern Greyhound Lines, Division of Greyhound Lines, Inc., 169 NLRB 627 (1968). Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with inter- est added thereto in the manner set forth in Isis Plumb- ing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings of fact and upon the record as a whole, we make the following: CONCLUSIONS OF LAW 1. Keller-Crescent Company, a Division of Mosler, is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the- Act. - 2. Evansville Typographical Union No. 35, Interna- tional Typographical Union, and Local 117 of the Evansville Printing and Pressmen and Assistants Union, AFL-CIO, are each a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act by suspending Charles M. Davis, Harold Griese, Gerald Chipps, Billy C. Denton, Ever- ett E. Davison, Arthur E. Pfeiffer, Robert Van Britson, David Ash, Edison L. Chanley, Elizabeth Skelton, Daniel Osborne, and Wayne R. Burdge, thereby violat- ing Section 8(a)(1) of the Act. -, ORDER Pursuant to Section 10(c) of the National, Labor Re- lations 'Act, the National Labor Relations Board hereby orders that Respondent, Keller-Crescent Com- pany, a Division of Mosler, Evansville, Indiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed in Section KELLER-CRESCENT COMPANY 693 7 of the Act by suspending Charles M. Davis, Harold Griese, Gerald Chipps, Billy C. Denton, Everett E. Davison, Arthur E. Pfeiffer, Robert Van Britson, Da- vid Ash, Edison L. Chanley, Elizabeth Skelton, Daniel Osborne, and Wayne E. Burdge, because they had en- gaged in protected concerted activities. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action: (a) Expunge from the employment records of the employees named in paragraph 1(a), above , any entry concerning their suspensions for alleged breach of con- tract. (b) Make the employees named in paragraph 1(a), above, whole for any loss of pay they may have in- curred by reason of Respondent's discrimination against them in the manner described above in "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports , and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facility in Evansville, Indiana, copies of the attached notice marked "Appendix."28 Copies of said notice, on forms provided by the Regional Di- rector for Region 25, after being duly signed by Re- spondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. MEMBER PENELLO, concurring in part and dissenting in part: I agree for the reasons set forth in the majority opin- ion that the Board should not decline to assert jurisdic- tion herein by deferring to Spielberg, supra. However, contrary to my colleagues, it is my view that the sympa- thy strike of the Charging Parties and their refusal to cross the picket line of the Pressmen were in breach of section 12 of the labor agreement between the Re- spondent and ITU Local 35, and therefore constituted unprotected activity. For the language of section 12 when considered in conjunction with collateral evi- dence of contractual intent reveals clearly and unmistakably29 that ITU Local 35 contractually sur- rendered the statutory right of the employees whom it represented to engage in such activity. Section 12 provides: No employee covered by this contract shall be required to cross a picket line established because of a strike by, or lockout of, any other subordinate Union of the International , Typographical Union, when such strike is authorized by, or such lockout is recognized by the ITU. In my opinion, this language expressly granting the employees the right to refuse to cross a picket line of a subordinate union of the fTU inescapably implies that the ITU Local 35 members were prohibited from honoring any other picket line. Any doubt about this conclusion is removed by the following collateral evidence . Thus, in the contract negotiations preceding the execution of the most recent contract, ITU Local 35 sought to enlarge the reach of section 12 so that it would permit employees to respect the authorized picket line of any union and failing that it sought, again unsuccessfully, to expand section 12 to permit the Union to honor any picket line set up by any union recognized by Respondent. As the Board said in Gary-Hobart, supra: For the Supreme Court in Rockaway News, and the Board in Hearst, in holding sympathy strikes unprotected, relied on the fact that during con- tract negotiations the unions involved had sought to include a provision expressly permitting em- ployees to honor picket lines of another union, which proposals were rejected by the respective employers . Based on the rationale that by attempt- ing to obtain such non-strike limitations the unions therein indicated they believed they did not have such picket line rights under the respective no-strike clauses, the Court and Board respec- tively found the no-strike provisions should be broadly construed.` Applying this reasoning to the facts herein , by its un- successful efforts to broaden the no-strike clause, ITU Local 35 showed that it did not believe that section 12, as written, covered sympathy strikes.31 's In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 29 See fn. 7 of the majority opinion 30 210 NLRB at 746. 31 The situation in Gary-Hobart, supra, which I signed and to which I still subscribe, was the converse of the one herein, as there the Board found that the respondent's attempt, without success, to broaden the no-strike clause (Continued) 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The conduct of the representatives of ITU Local 35 and its International during the course of the strike is further evidence that the ITU Local 35 and its Interna- tional understood that section 12 meant that the Union's members were prohibited from refusing to cross the picket line of a union which was not a subordi- nate union of the ITU. The president of ITU Local 35, Clark, appeared at the plant on July 25, and told the members of his Union who were refusing to cross the Pressmen's picket line to "honor the contract." Two days later, Clark again advised the members of his Union who were continuing to refuse to cross the Press- men's picket line to "honor the contract" and also told them the International had said that it expected them "to live up to our contract." In a situation where the employees -were already refusing to cross the picket line, to direct them to "honor the contract" can reason- ably be interpreted as telling them to do something other than what they were already doing, which in this case would be to cross the picket line. This interpreta- tion is supported by the fact that at least one present union official, Chapel Chairman Davidson, who had been on the ITU Local 35 negotiating committee, un- derstood that Clark was telling them to cross the picket line and to go back to work. In affirming the Board in The Hearst Corporation, News American Division, the court said: The union tradition of honoring picket lines is admittedly strong, but, just as its waiver in formal contract language is not to be precipitately as- sumed, so it is unlikely that responsible, ex- perienced, and authoritative union leaders will lightly interpret their own handiwork as barring its observance.3z APPENDIX- NOTICE To EMPLOYEES POSTED BY ORDER OF THE - NATIONAL LABOR RELATIONS-BOARD An Agency of the United States Government The National Labor Relations Act gives you, as em- ployees, certain rights, including the right of self-organ- ization; to form, join, or help unions; and to bargain collectively through a representative of your own choosing. Accordingly, we give you these assurances: WE WILL NOT interfere `with, - restrain, or coerce employees in the exercise of rights guaranteed in Section 7 of the National Labor Relations Act by suspending or otherwise discriminating against any employees because of their refusal to cross lawful picket lines established at our plant. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL expunge from the employment records of employees Charles M. Davis, Harold Griese, Harold Chipps, Billy C. Denton, Everett E. Davi- son, Arthur E. Pfeiffer, Robert Van Britson, Da- vid Ash, Edison L. Chanley, Elizabeth Skelton, Daniel Osborne, and Wayne R. Burdge any entry of a suspension resulting from their honoring of the picket line of the Evansville Printing and Pressmen and Assistants Union, AFL-CIO, which was established July 24, 1972; and disestab- lished July 29, 1972, and we will make the above- named employees whole for any loss of earnings they may have suffered as a result of said suspen- sions. KELLER-CRESCENT COMPANY, A DIVISION OF MOSLER In conclusion, in these circumstances , it is clear that under section 12 of the contract ITU Local 35 waived the employees' statutory right to lend support to the striking pressmen by refusing to report to work. Since such activity by employees in violation of their collec- tive-bargaining contract is not statutorily protected, Respondent lawfully took reprisal action against the Charging Parties. Accordingly, I would adopt the recommended Order of the Administrative Law Judge dismissing the complaint.33 to cover sympathy strikes was significant evidence that it did not believe its no-strike clause as it stood covered sympathy strikes 32 The News Union of Baltimore [Hearst Corp., News American Division] v NL R.B., 393 F 2d 673, 678 (C.A D C., 1968), enfg 161 NLRB 1405 (1966). 33 In view of the above, I find it unnecessary to consider, as did the Administrative Law Judge, the applicability of sec 13 of the contract to the strike - DECISION Statement of the Case PAUL E. WEIL, Administrative Law Judge: On October 10, 1972, Charles, M. Davis, Harold Griese, Gerald Chipps, Billy C> Denton, Everett E. Davison, Arthur E. Pfeiffer, Robert Van Britson, David Ash, Edison L. Chanley, Elizabeth Skel- ton, Daniel Osborne, and Wayne R. Burdge each filed charges with the Regional Director for Region 25 of the National Labor Relations Board, hereinafter called the Board, alleging that Keller-Crescent Company, a Division of Mosler, hereinafter called Respondent, violated Section 8(a)(3) and (1) of the Act by imposing discipline on the individual named Charging Parties because they refused to cross a picket line. On November 1, 1972, Wayne R. Burdge filed an amended charge with the same allegations. On May KELLER-CRESCENT COMPANY 8, 1974, the Acting Regional Director for Region 25 issued an order consolidating the cases for hearing, a complaint, and a notice of hearing. The complaint makes the same allegation as those contained in the charges, i.e., that Respondent dis- criminated against the named Charging Parties because they engaged in a sympathy strike in violation of Section 8(a)(3) and (1) of the Act. By its duly filed answer, Respondent admits that certain employees did not report for work during the period of the strike, denies that these employees refused to cross the picket line or engaged in a sympathy strike, and admits the imposition of the discipline complained of. On the issues thus drawn the matter came on for hearing before me in Evansville, Indiana, on July 2, 1974. All parties were pre- sent and represented by counsel and had an opportunity to call and examine witnesses and to adduce relevant and material evidence. At the close of the hearing the parties waived oral argument. Briefs have been received from Re- spondent and the General Counsel. On the entire record in this case and in consideration of the argument and briefs, I make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT It is, alleged, admitted, and I find that Respondent is a corporation engaged in the manufacture, sale, and distribu- tion of cardboard containers and related products at Evans- ville, Indiana, of which goods and materials valued in excess of $50,000 are annually shipped directly from States other than the State of Indiana and to which goods and materials valued in excess of $50,000 are annually shipped directly from States other than the State of Indiana. Respondent is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Evansville Typographical Union No. 35, hereinafter called ITIU, is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Background Among the employee complement at Respondent's Evans- ville, Indiana, plant are units of employees represented by ITIU, Local 117 of the Evansville Printing and Pressmen and Assistants Union, AFL-CIO, hereinafter called Pressmen, the International Bookbinders Union, hereinafter called the Bookbinders, and the Lithographers and Photo Engravers International Union, hereinafter called LPIU. During the summer of 1972 contract negotiations between Respondent and the Pressmen broke down and a strike commenced July 24, 1972, and ended July 29. On the day before the strike began, Respondent consulted with leaders of each of the unions, except the Pressmen, warning them that a strike was anticipated and advising them that because of the no-strike clauses in the contracts the members of the other unions would be expected to cross the picket lines and work during the strike. 695 On the morning the strike began the employees gathered outside Respondent's plant, and apparently none crossed the picket line; however, before the day was over the Bookbinders had reached agreement with Respondent that their members would cross the following morning and resume their jobs, in return for which no sanctions would be applied by Respond- ent. The ITU members consulted with the Local president who advised them that he was seeking advice from the ITU International Union. His own advice to the employees was that they should "honor the contract." On the following Wednesday the union president advised the ITU members that the International had said "follow the contract" also. The ITU members as well as the LPIU members honored the picket line throughout the strike which was concluded on Friday after 5 days. The following Monday, Burdge, who was the chapel chair- man for ITU members in Respondent's employ, was advised that although Respondent permitted the ITU members to go back to work, it considered that they had breached the no- strike clause in their contract and that repercussions would follow. Shortly thereafter Respondent announced that all ITU members would be penalized by a 1-week suspension with the exception of Burdge who, because of his leadership in the Union and his failure to lead the ITU members across the picket line, would be penalized by a 2-week suspension. Two provisions in the contract between ITU and Respond- ent are relevant to a consideration of the issue herein. The first, section 12, states as follows: No employee covered by this contract shall be required to cross a picket line established because of a strike by, or a lockout of, any other subordinate union of the Inter- national Typographical Union, when such strike is au- thorized by, or such lockout is recognized by, the ITU. The second, section 13, provides a grievance procedure to which shall be referred: . . . all disputes which may arise as to the application of and construction to be placed upon any provision of this agreement, or alleged violation thereof, which can- not be settled otherwise. It is agreed that the conditions prevailing prior to any dispute shall be maintained until the Joint Standing Committee has rendered a decision as provided above except in discharge cases. There shall be no strikes or lockouts during the term of this agreement unless either party refuses to comply with the grievance procedure as outlined hereinabove. It is agreed that the procedures for the settlement of any disputes or grievances arising under this contract are as defined herein and that the only recourse each party may have against the other for any damages alleged to be due for any breach of this contract shall be to the Joint Standing Committee. The section concludes with provisions for payment of ex- penses of arbitration and restrictions on the powers of the arbitrator. - 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The above provisions have remained unchanged in the con- tract between these parties for a number of years. In the last ,preceding contract negotiation the Union proposed that sec- tion.12 be amended to read as follows: "No employee covered by this contract shall be required to cross a picket line estab- lished because of a strike by any other Union, when such strike is authorized." The Respondent refused to amend a contract in this regard whereupon ITU then proposed picket line language such as that contained in the LPIU contract with Respondent which would have permitted the Union to honor any picket line set up by any union recognized by Respondent. This too was rejected by Respondent, and ulti- mately the Union traded off this and another demand for three language demands of Respondent and the new contract left the old language undisturbed. - B. Discussion and Conclusions Employees have a protected right to respect picket lines of unions other than their own, i.e., to engage in a sympathy strike,' but this protected right may be waived by the em- ployees' union. Any waiver of statutory rights must be clear and unequivocal.2 Respondent contends that in the instant case ITU waived the right of its members by sections 12 and 13 of the current collective-bargaining agreement quoted above. The General Counsel, on the other hand, contends that the no-strike, no-lockout provision contained in section 13 is expressly inapplicable in the instant case, arguing that the waiver is only as extensive as the scope of the grievance and arbitration procedure in which it is contained. The griev- ance-arbitration procedure in turn extends only to disputes "which may arise as to the application of and construction to be placed upon any provision of (the) agreement or alleged violation thereof which cannot be settled otherwise." The General Counsel points out that in the instant case the issue of the sympathy strike is that of the basic strike of the Press- men, i.e., the Pressmen's contract, and the Pressmen's con- tract is by no means cognizable under the terms of the ITU contract.' I agree with the General Counsel. Paragraph 13 is not applicable to the dispute which gave rise to the strike. Nowhere in the contract does the Union expressly waive the Gray-Hobart Water Corporation, 210 NLRB 742 (1974), Southern Grey- hound Lines, Division of Greyhound Lines, Inc 169 NLRB 627 (1968) 2 Mastro Plastics Corp., and French American Reeds Mfg, Co., Inc., v NL.R.B., 350 U S. 270, 278-279 (1956), Gary-Hobart, supra 3 Although at the hearing Respondent's counsel took the position that the Pressmen's strike was unlawful in that it sought to require Respondent to recognize the Pressmen as the collective-bargaining representative of a theretofore unrepresented group of employees, no evidence of such illegality was adduced by Respondent and the matter has not been raised further in Respondent's brief right to honor another union's picketline. If a waiver is found it must be implied and this may not be done lightly. Respond- ent, however, would have us infer from the language of sec- tion 12, that the parties meant that the no-strike pledge of the Union would apply to the circumstance of the employees' being required, to cross the picket lines of other unions. As Respondent points out in his brief, it seems, clear that the parties understood that the contractual language of section 12 meant that ITU members were prohibited from honoring any picket line except that of a subordinate union of the ITU. Hence, the advice of Local President Clark that members were to live up to their contract, and the advice of the Inter- national to the same effect, was understood by the employees to mean that they should go to work across the picket line. Applying the familiar maxim mclusio unius est exclusto al- terius, section 12 can readily'be read to mean that employees may be required to cross a picket line established by any union other than the ITU. This argument is in its turn but- tressed by the action of the Union during the last preceding contract negotiations in trying to enlarge the reach of section 12 to permit employees to respect any picket line at their employer's plant, or, if they could not achieve that change, to enable them to respect any picket line established by a union representing the Respondent's employees. The General Counsel contends that under the decision of the Board in Gary-Hobart, supra, and in Hoffman Beverage Company, 163 NLRB 98'1(1967), section 12 does not purport to limit the right of employees to cross picket lines of any nature, but simply asserts the right of employees to refuse to cross certain picket lines. However, applying the tests applied by the Board in Gary-Hobart we are forced to the opposite conclusion. There the Board found that Respondent's at- tempt, without success, to broaden that no-strike clause to cover sympathy strikes was significant evidence that it did-not believe its no-strike clause as it stood covered sympathy strikes. Here the Union's attempt to broaden its picket line clause revealed its belief that the contract as it existed would not protect such sympathy striking. This in turn is consistent with the action of the ITU in warning the employees to honor the contract.4 Under all circumstances herein I conclude that the Charg- ing Parties strike breached the no-strike clause embodied in their contract. They accordingly lost the protection of the Act and the discipline imposed upon them was not violative of the Act. Accordingly, I recommend that the complaint be dis- missed 4 I rejected the General Counsel's argument that this should be ignored because of the latent ambiguity in the advice of the International. There is no evidence that any employee believed other than that it meant that they should cross the picket lines and go to work